More Missouri babies die as laws, oversight lag

BY NANCY CAMBRIA

After their first child was born prematurely and died, Lily Rieger's parents wanted to be as cautious as possible with their second baby girl.

Lily's parents checked out 11 child care facilities, six of them licensed.

The centers felt too antiseptic and institutional. So they focused on home day care providers and interviewed five.

They went with Jennifer Winkler of Eureka. She was warm and friendly and had two young children. She didn't have a child care license, but that didn't seem to be important in a home day care. The parents felt further assured because two St. Louis County police officers sent their children to her house for care. "They looked like a normal, typical family," said Lily's father, Bill Weishaar, of their decision to hire Winkler. "But nobody ever told me you take a great risk in putting a baby in somebody's hands when there is no second adult around."

Last year, Lily's parents joined a growing list of those whose young children died from violence or preventable accidents in Missouri's vast array of unregulated home day cares.

In October, the Post-Dispatch profiled more than 40 deaths from 2007 through 2010, pointing to what many child advocates now regard as one of the greatest safety issues facing children in the state: lax standards and oversight of home day cares.

Now, state records show that even as momentum to address the problem builds among legislators and prosecutors, the deaths continue. Preliminary statistics for the first seven months of 2011 indicate Lily was one of at least nine children to die last year in child care for reasons not clearly linked to an illness.

On July 29, Lily's father dropped off his happy 13-month-old with Winkler. Lily was airlifted that afternoon to Cardinal Glennon Children's Medical Center in need of emergency surgery to control swelling and bleeding in her brain. She was taken off life support two days later.

Though doctors never told the parents they suspected Lily had been shaken, her mother, Kara Rieger, said they didn't have to. Doctors explained that Lily's brain had been torn from the tissue that anchored it to her skull, causing it to slosh from side to side.

Winkler, who is in jail awaiting trial, has pleaded not guilty to charges of second-degree murder and fatal abuse of a child. Her attorney could not be reached for comment.

A CALL TO ACTION

The nine deaths reported in child care in 2011 are an incomplete tally. The state's child fatality review system may not have a final report until next year.

But the latest deaths continue a pattern the Post-Dispatch uncovered in a six-month investigation last year. Seven of the nine reported deaths in 2011 were in unlicensed home day cares, where caregivers are not required to have any training, need not adhere to safety standards and have little or no oversight.

The Post-Dispatch previously reported that 41 of 45 deaths in child care in the prior four years occurred in unlicensed home day cares. The newspaper's investigation showed Missouri has some of the weakest child care regulations in the nation, allowing the bulk of Missouri children to enroll in unregulated day cares.

In the most egregious cases, the investigation found children died in day cares where providers repeatedly defied enrollment laws. In one of those fatality cases, a provider was attempting to care for eight children under the age of 2.

After years of inaction on legislation seeking to deter deaths in child care, this year may be different.

"It's starting to generate more discussion among the constituencies that drive what we do," said Sen. Scott Rupp, R-Wentzville, the 2012 Senate sponsor of Nathan's Law and Sam Pratt's Law — two child care safety bills that have languished in past sessions. "I've had the president of the Senate ask if someone was dealing with this, and we said we were."

In a final report released this month, the new bipartisan House Interim Committee on Strengthening Missouri Families also recommended to House Speaker Steven Tilley the passage of Sam Pratt's Law and Nathan's Law in light of testimony that cited the Post-Dispatch investigation.

Those bills aim to tighten enrollment limits in unlicensed day cares, increase fines for rogue providers and give the state power to shutter unlicensed day cares that may be dangerous.

A St. Louis consortium of five child welfare and day care agencies has declared day care safety a top agenda item.

"Protecting the lives of kids is essentially the bottom line, and the state of Missouri needs to be compelled to ensure the basic safety and well-being of kids in child care," said Richard Patton, director of Vision for Children at Risk, the umbrella agency for the coalition. Patton said the Missouri Children's Leadership Council, a statewide coalition of child service agencies, also had made child care safety a top agenda issue this year.

SIMILAR ACCIDENTS

The latest deaths also point to an ongoing crisis centered on sleep safety in unlicensed care.

The Post-Dispatch investigation found that more than three-fourths of the deaths from 2007 through 2010 were sleep-related, most often in unregulated care where children were put down for a nap in unsafe conditions. Similarly, four of five suspected accidental suffocations last year occurred in unregulated homes.

Among them was Jordan Brooks, 4 months. He slept overnight at his unlicensed care providers' home in Ferguson in February because of inclement weather. Police and medical examiner records show that on Feb. 1, about 1:30 a.m., Jordan was placed on his abdomen on a couch by one of the caregivers.

Safe sleep experts say babies should always be placed in a crib on their backs for sleep.

The caregiver then fell asleep on the sofa with the baby. When the caregiver awoke three hours later, Jordan was not breathing. An official with the St. Louis County Medical Examiner's Office said the man rolled onto Jordan in his sleep, causing the baby to suffocate.

"I had no idea they weren't using a crib, and I definitely didn't know they were co-sleeping with him," said Jordan's mother, Ashley Brooks. She said she felt as if her son's death had been ignored.

Because reports on most deaths in unlicensed child care remain sealed from the public, parents seeking child care cannot find out whether a child has died in a specific provider's care.

Police records indicate Jordan's caregivers were investigated afterward by state regulators for possibly caring for too many children without a required license. But because no rule violation was found, the regulatory file was sealed. Under state law, unsubstantiated investigations of rule violations are not open to the public.

Brooks said the couple continued to run an unlicensed day care out of their home. They are still not subject to inspections or state safety standards.

MORE PUNISHMENT

The 2011 child care deaths — like those from prior years — show that the most dangerous day cares for children are homes in which providers defy rules by caring for too many children. Those rules require a license when caregivers care for more than four children who are not related to them.

The Post-Dispatch investigation found that prosecutors rarely charged providers operating without a license with a crime, even after a child died in their care, because the punishment was so lenient. State law currently allows a maximum $200 fine for a crime that's classified on the same level as a traffic ticket.

But in 2011, with increased scrutiny on illegal day cares, at least two such deaths led to criminal charges.

In one case, caregiver Cherie Kohenskey of Troy, Mo., was charged with second-degree involuntary manslaughter — the first time a serious felony charge has been brought against a provider in Missouri regarding an accidental sleep suffocation. The charges carry a maximum four-year jail term and $5,000 fine.

Parent Jody Haggard said Kohenskey assured her she would watch only four children for pay on July 21 when Haggard dropped her infant off at the home day care. Haggard's son, Levi, 2 months, suffocated later that day after being put down for a nap on his abdomen in an adult bed. State documents allege the caregiver was watching eight children unrelated to her, as well as two of her own.

Lincoln County Prosecutor Leah Askey said she didn't want to charge Kohenskey, but a grand jury did.

"The parents lost their infant son who was otherwise healthy because the day care provider had too many children in her care and wasn't adequately able to provide supervision," she said. "I certainly don't think she was malicious, but at the same time I do believe that child's life was lost and it didn't have to be."

Kohenskey pleaded not guilty. Her attorney declined to comment on the case, which is still pending.

In another case, caregiver Michelle Brown was charged with false impersonation, after Macie Barton, 3 months, died in her home day care in Lee's Summit. The day Macie died, police and regulators documented six children, all under 2, in Brown's home. Court and regulatory documents also suggest Brown lied to police and parents about being licensed.

Brown could not be reached through her attorney. She pleaded guilty in September and was given two years' unsupervised probation.

The official cause of Macie's death was pneumonia, yet she had been to the pediatrician that morning for a follow-up on an ear infection and there were no health concerns. Experts in sleep deaths have said that traces of pneumonia in the lungs too often lead pathologists to rule the illness a cause of death when accidental suffocation is probably the cause. Macie died while napping for a long period in a swing, a sleep practice that experts in infant sleep death consider hazardous.

Barton said she was pleased that Brown must now serve two years of probation. But she's offended by the other part of the sentence: a $10 fine.

"Ten dollars, seriously? What's the point of even fining her then?" she said. "That is extremely insulting to me."

TRAGEDY INTO LIGHT

Lily Rieger's parents are waiting for justice for their daughter.

They think that Lily would be alive today had her caregiver received mandatory training that included information on the dangers of shaking a baby.

The parents said they came forward about Lily to remind others that much of what happens in unregulated home child care is seen only by the eyes of very young children.

Even after Winkler was formally charged and the death was reported in the media, Winkler was described by police as a "baby sitter," and not a day care provider. Weishaar said parents should know Winkler cared for at least three other children part time, in addition to her two young children.

But in Missouri, the distinction between who is an occasional baby sitter and who is a regular, home-based child care provider is often difficult to determine in state records, even in cases in which a crime against a child may have taken place.

There are no public files on Winkler with child care regulators. Under state law, Winkler was not required to register her child care with the state.

So it has fallen to Lily's parents to let the public know.

Source http://www.stltoday.com/news/special-reports/daycares/more-missouri-babies-die-as-laws-oversight-lag/article_086e3cb5-1d44-5512-a038-4d4c2ff70eed.html

Judge orders Kentucky to release records on child-abuse deaths

Written by Deborah Yetter

For the second time in 18 months, a Franklin Circuit Court judge has ordered the state to release records pertaining to child-abuse deaths and serious injuries, finding that there is “no legal basis” for withholding them.

“The court must conclude that the (Cabinet for Health and Family Services) is so immersed in the culture of secrecy regarding these issues that it is institutionally incapable of recognizing and implementing the clear requirement of the law,” Judge Phillip Shepherd said in his ruling, issued Thursday.

The decision comes after a lengthy court fight by The Courier-Journal and the Lexington Herald-Leader to obtain the records — and more than a year after Shepherd first ruled that the cabinet must disclose the material.

After that decision, the cabinet released some information about the death of a Wayne County toddler who drank drain cleaner at an alleged methamphetamine laboratory. But the cabinet refused to provide the newspapers with information about other child-abuse deaths.

A 2009 Courier-Journal investigation found that nearly 270 Kentucky children had died of abuse or neglect during the past decade — more than half in cases in which state officials knew of or suspected problems.

Thursday’s ruling is a major open-records victory for the newspapers and the public because it forces the cabinet to disclose details of how well the state does its job of protecting children from severe abuse, said Jon Fleischaker, a lawyer for The Courier-Journal.

“It’s about time the cabinet recognizes that it is not above the law,” Fleischaker said. “It has to comply with the mandate of state and federal law. This is not a difficult issue.”

Cabinet officials released a brief statement Thursday saying that they are reviewing the ruling. They gave no indication when they would release the records.

Fleischaker said the cabinet could appeal but added that he doubts it would succeed because Shepherd found for the newspapers in the virtually identical case last year. The cabinet did not appeal that ruling, making the decision final.

Fleischaker called on Gov. Steve Beshear to direct officials at the cabinet to comply with the court’s ruling.

“We now have a judge talking about the inability of the cabinet to understand its legal obligations,” Flesichaker said. “Maybe the governor needs to step in. He probably should have stepped in before this.”

Beshear spokeswoman Kerri Richardson didn’t respond to a question about whether Beshear will get involved. She said in a statement only that the cabinet is reviewing the decision.

Terry Brooks, executive director of Kentucky Youth Advocates, said Thursday’s ruling has important ramifications.

“It’s not just a win for the press,” Brooks said. “It’s a win for kids and for citizens who are taking a look at this issue.”

In his opinion, Shepherd had harsh words for cabinet officials who have consistently fought releasing material the newpapers sought after several highly publicized child abuse or neglect deaths, including the 2009 case of the Wayne County toddler.

His order said the cabinet “misinterpreted” state law and “continues to flatly ignore” provisions that require it to disclose the records.

“The release of these records will help to keep the cabinet accountable to prevent future tragedies and to answer to taxpayers who fund the cabinet,” it said.

State law — conforming to federal law — says such records may be “publicly disclosed” in cases in which a child was killed or severely injured from abuse or neglect if the cabinet had involvement with the family. But in recent years, cabinet officials have refused to release such material, citing the need for confidentiality.

Shepherd’s order noted the “exact issues” in the current case were already addressed in the initial lawsuit filed by the newpapers in 2009.

In that case, Shepherd ruled in May 2010 that the cabinet must release records related to the death of Kayden Daniels, the 20-month-old Wayne County boy who died at the home of his teenage parents, the site of the alleged meth lab. Both the child and his mother, then 14, had been under supervision of the cabinet before the death.

Records sought by the newspapers included a “fatality report” that the cabinet is required by law to conduct, examining the circumstances of the child’s death and actions of cabinet officials involved with the family. After Shepherd ordered the cabinet to release the report, agency officials acknowledged they had never conducted the review or produced such a report.

Shepherd ordered the release of other cabinet records in the case, such as documents relatging to state contacts with the family, the cabinet disclosed.

But it refused subsequent requests for information about other child-abuse deaths. That prompted the newspapers to file a second lawsuit in January, asking Shepherd to order the cabinet to comply with his previous order.

Shepherd, in Thursday’s ruling, also struck down “emergency regulations” that cabinet officials enacted in January seeking to sharply restrict the information it must release about child deaths and injuries. Shepherd’s order found no basis in state law for the regulations.

Because the newspapers had requested records related to child deaths for the past several years, such records are likely to be voluminous and could impose a “substantial administrative burden on the cabinet,” Shepherd’s order said.

For that reason, Shepherd ordered the cabinet to meet with the newspapers within the next 10 days to try to reach an agreement on the “orderly and timely production of the records.”

If the parties can’t agree, Shepherd’s order said he will hold a hearing on the matter and spell out the “time, place and manner of production.”

Shepherd also reserved a ruling on the newspapers’ request for attorneys fees until the other issues are resolved.

He already has awarded the newspapers $20,700 in legal costs from the first round of litigation. The cabinet has appealed that order.

Fleischaker called on Gov. Steve Beshear to direct officials at the cabinet to comply with the court’s ruling.

“We now have a judge talking about the inability of the cabinet to understand its legal obligations,” Flesichaker said. “Maybe the governor needs to step in. He probably should have stepped in before this.”

Beshear spokeswoman Kerri Richardson didn’t respond to a question about whether Beshear will get involved. She said in a statement only that the cabinet is reviewing the decision.

Terry Brooks, executive director of Kentucky Youth Advocates, said Thursday’s ruling has important ramifications.

“It’s not just a win for the press,” Brooks said. “It’s a win for kids and for citizens who are taking a look at this issue.”

In his opinion, Shepherd had harsh words for cabinet officials who have consistently fought releasing material the newpapers sought after several highly publicized child abuse or neglect deaths, including the 2009 case of the Wayne County toddler.

His order said the cabinet “misinterpreted” state law and “continues to flatly ignore” provisions that require it to disclose the records.

“The release of these records will help to keep the cabinet accountable to prevent future tragedies and to answer to taxpayers who fund the cabinet,” it said.

State law — conforming to federal law — says such records may be “publicly disclosed” in cases in which a child was killed or severely injured from abuse or neglect if the cabinet had involvement with the family. But in recent years, cabinet officials have refused to release such material, citing the need for confidentiality.

Shepherd’s order noted the “exact issues” in the current case were already addressed in the initial lawsuit filed by the newpapers in 2009.

In that case, Shepherd ruled in May 2010 that the cabinet must release records related to the death of Kayden Daniels, the 20-month-old Wayne County boy who died at the home of his teenage parents, the site of the alleged meth lab. Both the child and his mother, then 14, had been under supervision of the cabinet before the death.

Records sought by the newspapers included a “fatality report” that the cabinet is required by law to conduct, examining the circumstances of the child’s death and actions of cabinet officials involved with the family. After Shepherd ordered the cabinet to release the report, agency officials acknowledged they had never conducted the review or produced such a report.

Shepherd ordered the release of other cabinet records in the case, such as documents relatging to state contacts with the family, the cabinet disclosed.

But it refused subsequent requests for information about other child-abuse deaths. That prompted the newspapers to file a second lawsuit in January, asking Shepherd to order the cabinet to comply with his previous order.

Shepherd, in Thursday’s ruling, also struck down “emergency regulations” that cabinet officials enacted in January seeking to sharply restrict the information it must release about child deaths and injuries. Shepherd’s order found no basis in state law for the regulations.

Because the newspapers had requested records related to child deaths for the past several years, such records are likely to be voluminous and could impose a “substantial administrative burden on the cabinet,” Shepherd’s order said.

For that reason, Shepherd ordered the cabinet to meet with the newspapers within the next 10 days to try to reach an agreement on the “orderly and timely production of the records.”

If the parties can’t agree, Shepherd’s order said he will hold a hearing on the matter and spell out the “time, place and manner of production.”

Shepherd also reserved a ruling on the newspapers’ request for attorneys fees until the other issues are resolved.

He already has awarded the newspapers $20,700 in legal costs from the first round of litigation. The cabinet has appealed that order.

Source http://www.courier-journal.com/article/20111103/NEWS01/311030033/Judge-orders-Kentucky-release-records-child-abuse-deaths?odyssey=nav%7Chead