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By Governor Steve Beshear
You teach in a small community and suspect a student is being abused.
You want to report it, but you fear retaliation.
Can you come forward without the newspaper naming you as the accuser?
Or maybe you’re a grandmother. You worry about the man your daughter is living with, in fact you’re afraid of him. But you love your grandchildren, and you think they’re being neglected.
Will you be able to report your suspicion without alerting your daughter’s volatile and unstable boyfriend and jeopardizing your own safety?
The answer to both scenarios, unfortunately, is “no.”
If a case of suspected child abuse and/or neglect later results in death or serious injury, and you reported it, your name and your concerns likely will be released to anybody who asks, whether that’s a TV reporter, a blogger or even the accused.
That’s one of the real-life consequences of a new judicial ruling related to state records on investigations of child abuse and neglect.
The ruling, issued Jan. 19 in Franklin Circuit Court, stems from litigation involving Kentucky newspapers’ attempts to access records involving cases that resulted in a child’s death or serious injury.
An attorney for the newspapers has argued that no information whatsoever should be kept confidential, and that the public should have unfettered access to these records.
The judge disagreed. He said the Cabinet for Health and Family Services can black out certain information, such as names of children seriously injured in cases of abuse; Social Security numbers and other financial information; the names of other children in the family who weren’t involved; and the names of private citizens who report abuse - but the names of relatives, police officers and school officials who report abuse will be made public.
But we don’t think the judge’s ruling was protective enough, and so the Cabinet recently filed notice that it would appeal.
Newspapers will criticize the state for this decision. After all, they get to write the headlines. To date, the Cabinet has been accused of “operating under a veil of secrecy” in a supposed attempt to protect inept workers and a poorly designed system.
But this is not about shielding the system from scrutiny. We understand the need to be more transparent than in years past - in fact, I ordered such a paradigm shift in the Cabinet’s treatment of child abuse records as early as last fall.
We are not arguing for the right to camouflage the actions of the Cabinet or its workers. That information is already being provided and we will continue to do so.
But increased openness has to be implemented in a consistent and thoughtful way that holds the best interests of the child as its paramount priority.
That is our top and only concern.
There are very real consequences - sometimes unintended - to eliminating confidentiality.
As I described earlier, lack of protection for those reporting abuse or neglect could have a silencing effect on those who would bring these conditions to authorities.
But there are other consequences. For example:
* Police and prosecutors routinely share information with the Cabinet to help it determine whether children need to be removed from ahome for their safety. That information might include witness interviews, forensic evidence, autopsy results and statements by an accused immediately following a tragic event.
The Court’s ruling does not exempt that information from disclosure - even if the case is ongoing. Consequently, prosecutors will likely begin withholding that information rather than risk jeopardizing their ability to pursue criminal charges. As a result, the Cabinet will lack crucial information it needs to decide whether to intervene to protect children.
* The ruling also doesn’t shield from disclosure information related to voluntary or involuntary termination of parental rights, and to a subsequent adoption. As a result, a parent who previously lost custody of a child via court order will be able to track down the child and the family who adopted that child.
The result could potentially be tragic.
And it certainly will stymie the Cabinet’s ability to find people to adopt abused or neglected children.
* The court ruling does not exempt from disclosure the names of parents, guardians or custodial parties found by the Cabinet to have abused or neglected a child but later exonerated once a hearing on the charges was held.
Publicizing their names before their cases are fully heard is a violation of due process required by federal law, and it directly harms them and their families. The Cabinet must make decisions in a short timeframe, and often errs on the side of caution. Parents or others accused should have the right to defend themselves before they’re punished.
Such consequences are indicative of the complex social, emotional and legal issues that surround cases of child abuse and neglect.
The ability of social workers and others to gather information has a direct impact on their ability to make critical decisions regarding the safety of vulnerable children and their families.
In the aftermath of my directive requiring more transparency, I have asked the General Assembly to give these issues a public airing. The legislature should amend state law in a way that ensures our child welfare system is effective and eliminates the ambiguities that led to recent court rulings. The General Assembly should set the policy on this issue, not the courts.
In the meantime, however, the Cabinet, its attorneys and I will continue to battle in court in the best interests of our children - regardless of what criticism comes our way.