Senate Bill 39 Challenges Secrecy Around Child Deaths, But Faces Obstacles
By Edward Opton
NCYL-sponsored legislation that gives the public access to key information about deaths from child abuse and neglect has begun to make a difference, but efforts to implement the law continue to face significant resistance.
For many years, crucial facts about the deaths of children from abuse and neglect have been kept secret from legislators, county supervisors, the press, and the public. Very little has been revealed about the investigations done and actions taken by child welfare agencies in response to reports that a child may be in serious danger. California Senate Bill 39, sponsored by NCYL and passed in 2007, made this kind of information available to the public for the first time.
SB 39 requires California’s child welfare agencies to release certain records about each child who dies from abuse or neglect. Information about the death, about the child’s age and gender, and about whether the child was in foster care or living with parents must be disclosed upon request. The most important item of information that child welfare agencies must make available is a list of any prior reports and investigations concerning the deceased child, including details like the dates of those reports and the relevant agency’s post-investigation findings as to whether each allegation was “substantiated,” “unsubstantiated,” or “inconclusive.”
Since SB 39 took effect in January 2008, NCYL has requested child death data from 20 counties. The counties are Alameda, Butte, Contra Costa, Fresno, Kern, Los Angeles, Orange, Riverside, Sacramento, San Bernardino, San Diego, San Francisco, San Joaquin, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Siskiyou, Tulare, Ventura. Those counties’ child welfare agencies have jurisdiction over more than 80 percent of California’s child population.
Counties’ responses to NCYL’s requests have been mixed. Some counties promptly produced the requested records, but others have withheld documents, employing a variety of tactics and excuses. The most common problem has been excessive redaction: deleting from documents not only “identifying information,” as required by the statute, but also other information – and sometimes, all information.
An Errant Regulation
Senate Bill 39 requires redaction when necessary to maintain the confidentiality of “information that would, after consultation with the district attorney, jeopardize a criminal investigation or proceeding.” (Wel. & Inst. Code § 10850.4(e)(1)(b).) The California Department of Social Services (CDSS) misinterpreted this provision; it issued a regulation that delegates to police officers the authority to require redactions. The fact that this regulation runs contrary to the statute was brought to the attention of CDSS many months ago. While CDSS has acknowledged that the regulation is improper, it has yet to correct the error.
Meanwhile, some counties have relied on the CDSS regulation to withhold complete files, apparently by relying on a police officer’s decision to do so. SB 39 does not authorize the withholding of entire files. Los Angeles County relied on the CDSS regulation to avoid any disclosure of child death data for an entire year – from November 2009 to October 2010.
SB 39 in Los Angeles County
Despite problems with implementation, SB 39 has had some success, as the California Legislature intended, in “maximiz[ing] public access” and “promot[ing] public scrutiny and an informed debate” in child abuse and neglect cases. (SB 39, § 1.) Since the law was enacted, the Los Angeles Times, relying in part on data released in response to SB 39 requests, has published many stories about deaths from child abuse and neglect in Los Angeles County. After the Times had problems obtaining legally required documents from the county’s child welfare agency, the county Board of Supervisors replaced the agency’s director and removed the agency from the control of the county’s chief executive. Instead, the agency was placed under the direct control of the Board of Supervisors.
On March 31, 2011, the Los Angeles County’s Chief Executive Officer William T. Fujioka acknowledged that an internal investigation he had commissioned revealed that “a standardized process for compiling and reporting pertinent child fatality data needs to be developed … there was no systematic data available on child fatality trends and circumstances. Clear, concise data on child fatality trends … will allow for more informed policy discussions. …”
Senate Bill 39 was only one of many factors that led to the above developments, and whether they will change things for the better is still unclear. But the fact that there has been a debate about child welfare in Los Angeles within the Board of Supervisors and in the press seems to be in line with the California Legislature’s intent.
The issues raised in the course of implementing SB 39 are not unique to California. On July 12, 2011, the U.S. General Accountability Office (GAO) released a national report entitled “Child Fatalities From Maltreatment.” The report, whose conclusion is summarized in its subtitle, “National Data Could Be Strengthened,” asserts that even the most basic fact – how many children have died from abuse and neglect – is far from clear. One U.S. government study counted 1,770 such deaths in fiscal year 2009, but another study estimated 2,400 deaths in the period 2005-2006.
An important question remains: Which efforts to reduce the numbers of deaths and injuries from child abuse and neglect have been successful, and which have not? Senate Bill 39, if complied with, makes it much more likely that an answer will emerge, and that important lessons will be learned.
Read related news story in the LA Times about LA County’s recent refusal to comply with a subpoena from the State Auditor for child abuse fatality records.
Edward Opton is of counsel at NCYL, specializing in child welfare issues.