Changing Confidentiality Laws in Child Abuse and Neglect Cases

In a previous post, I briefly discussed the prospect of changing some of South Dakota’s confidentiality laws regarding child abuse and neglect proceedings.  It has been a while, but here is the promised follow-up.

First, a little background.  My discussion of South Dakota’s confidentiality laws stemmed from my writings regarding the Native Foster Care Series done by NPR.  One part of that series discussed at length a particular case where the children’s grandmother and tribe argued that the State was acting improperly and in violation of the Indian Child Welfare Act.  I lamented the one-sided nature of the story, and noted that South Dakota’s confidentiality laws, primarily SDCL 26-8A-13 prevented any state employees, or just about anyone else with knowledge of the case, from discussing the particular facts of the case and providing the rest of the story.  Put briefly, SDCL 26-8A-13 makes it a crime to disclose or redisclose “records, files, or information” related to a child abuse and neglect case to anyone who does not have an involvement in the case or a need to know.  This statute, combined with SDCL 26-7A-36, which mandates that juvenile court proceedings be closed, makes it very difficult to find out “the rest of the story” when allegations are made that the State is acting improperly in juvenile court cases.

I believe that South Dakota’s children and families could be better served by making some changes to our laws regarding the confidentiality of abuse and neglect cases.  The near-absolute confidentiality requirements that currently exist allow one-sided stories to be publicized without any opportunity to set the record straight.  Parents can publicly complain that the state has kidnapped their children without any just cause or due process, and that narrative can be advanced without any real rebuttal.  This is harmful to state-tribal relations, hurts efforts to address abuse and neglect, hurts efforts to recruit foster parents, and ultimately hurts children.  The confidentiality laws can also be used as a shield when the law is not being followed.  A parent whose rights have not been upheld by the system may have their story dismissed out of hand by the media based on the assumption that there would be a perfectly valid explanation if only the other side could present it.  This lack of scrutiny in appropriate cases hinders the progress of beneficial system reforms, and therefore also hurts children.

In my opinion, the two primary purposes of our confidentiality laws in A&N cases are to protect the privacy rights of (i) the  parents and (ii) the children.  The State doesn’t have any legitimate interest in secrecy in its own right.  Parents should be able to waive confidentiality rights that they have.  In effect, they already can do so by telling their personal stories, and these expressions are almost certainly protected by the First Amendment.  It also seems to me that if a parent takes the step of going to the media with the story of their children’s removal that the children’s remaining privacy interest has been diminished by that disclosure.

I think that, at a minimum, the argument above suggests that a parent in an A&N case should be able to sign a waiver that permits (i) the parent’s attorney, and (ii) the State (DSS & State’s Attorneys) to discuss the case publicly.  A parent is already able to discuss matters with a reporter individually, and if a parent’s rights are not being upheld, the parent’s attorney would be better able to phrase such an argument, and should be able to speak on the parent’s behalf.  Further, if the State is being accused of wrongdoing, then it is only fair that the State be able to respond.  A policy similar to this would allow parents essentially the same privacy protections they currently have, so long as they did not waive them.  It would also prevent our confidentiality laws from being used as a shield by state actors.  I also suspect that the media would not run with stories where a parent claims wrongdoing by the State if that parent will not do what is required for the State to tell its side of the story.

Unfortunately, just amending South Dakota’s confidentiality statutes may not be that easy.  When I inquired a bit among the legal community about the prospect of making changes to SDCL 26-8A-13, it was quickly pointed out to me by a helpful individual that the statute is based upon federal funding eligibility requirements found at 45 CFR § 1340.15.  Indeed, a reading of the confidentiality requirements of the federal regulation make it readily apparent that SDCL 26-8A-13 was specifically drafted to comply with that regulation.  This federal regulation stems from the Child Abuse Prevention and Treatment Act (CAPTA), originally passed in 1974, and last amended in 2010.  In essence, SDCL 26-8A-13 is the result of a federal funding mandate found in CAPTA, and changing the statute could potentially result in the loss of some federal funds.

Unlike the confidentiality of records and information mandated by SDCL 26-8A-13, closed court hearings in abuse and neglect cases, as required by SDCL 26-7A-36, are no longer federally mandated.  Prior to 2003, CAPTA also mandated that abuse and neglect hearings be closed to the public.  However, at that time at least 15 states were allowing open court hearings in such cases, and CAPTA was amended to specifically allow for open hearings (See this Brief by the National Center for State Courts).  SDCL 26-7A-36 has not been amended since the 2003 change to the federal law.

Another potential source of federally-mandated confidentiality is Title IV of the Social Security Act.  Federal funding for foster care pursuant to Title IV-E is subject to the confidentiality requirements found at 42 U.S.C. § 671.  Federal funding for Title IV-B and IV-E funds are also subject to the confidentiality requirements of 45 CFR 205.50.  (See 45 CFR 1355.30(p)(3) and the Child Welfare Policy Manual published by the Children’s Bureau)  A slightly less-opaque description of the confidentiality requirements of Title IV-E by the National Association of Public Child Welfare Administrators can be found here, and a similar description of the CAPTA requirements can be found here.  The impression I get from my research is that CAPTA is likely the bigger roadblock to changing confidentiality requirements in abuse and neglect cases, but I could be mistaken.

Now for the good news.  Despite all of the federal mandates discussed above, it is very unlikely that the Federal government would pull funding if South Dakota enacted a law along the lines of what I am suggesting.  According to the U.S. Department of Health and Human Services, “approximately 13 States allow disclosure of information for the purpose of clarifying or correcting the record when information has already been made public through another source.”  These states include Arizona, Connecticut, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Montana, Nebraska, New York, South Carolina, and Wisconsin.  My reading of the statutes in these states is that they allow their child protective services agencies to release information in situations that are not authorized by CAPTA’s implementing regulations.  Many, but not all, of these states require some sort of determination that the release will not be detrimental to the children involved.  It does not appear that any of these states has lost federal funds due to their laws in this regard.  Examples of some of the statutes in these states include:

Arizona Revised Statute § 8-807, which provides that state officials “May provide CPS information to confirm, clarify or correct information concerning an allegation or actual instance of child abuse or neglect that has been made public by sources outside the department.”

Kansas Statutes § 38-2212, which provides that “Information from confidential reports or records of a child alleged or adjudicated to be a child in need of care may be disclosed to the public when: (A) The individuals involved or their representatives have given express written consent; or (B) the investigation of the abuse or neglect of the child or the filing of a petition alleging a child to be in need of care has become public knowledge, provided, however, that the agency shall limit disclosure to confirmation of procedural details relating to the handling of the case by professionals.”

South Carolina Code of Laws § 63-7-1990(G) provides that: “The state director of the department or the director’s designee may disclose to the media information contained in child protective services records if the disclosure is limited to discussion of the department’s activities in handling the case including information placed in the public domain by other public officials, a criminal prosecution, the alleged perpetrator or the attorney for the alleged perpetrator, or other public judicial proceedings. For purposes of this subsection, information is considered “placed in the public domain” when it has been reported in the news media, is contained in public records of a criminal justice agency, is contained in public records of a court of law, or has been the subject of testimony in a public judicial proceeding.”

My research has uncovered only one incident where a state was threatened with the loss of federal funds due to its disclosure of information relating to abuse and neglect cases.  Ironically, it was not one of the previously mentioned states that was threatened with a loss of funding.  Instead, the State of Oklahoma was threatened with the loss of funds for allegedly releasing too much information related to cases involving child deaths due to abuse.  My personal take on this is that it was probably an example of an isolated federal bureaucrat who did not have her head on straight.  This letter, collaborated on by three child advocacy organizations, including the Children’s Advocacy Institute at the University of San Diego School of Law, does a good job of explaining why the federal threat was both bad for kids and contrary to existing law.  My research did not uncover a single instance where a state actually lost any funding due to the disclosure of information.

In closing, regulations related to federal funding mandates dictate that states cannot release information about child abuse and neglect cases to the media in most situations, including when the parents involved have already publicized the case.  However, approximately thirteen states already have statutes on the books that are contrary to these federal regulations.  None has lost any federal funding.  If enough states act contrary to the federal regulations, the likely outcome is not the loss of funding, but a change in the federal law, just as occurred with regard to open court proceedings.  South Dakota has a long tradition of objecting to federal mandates, and should join the other states that have passed laws permitting public disclosure of information regarding child abuse and neglect cases in a wider range of circumstances than is currently allowed.  Doing so could help spur improvements to the child welfare system in this state while also preventing its reputation from being unjustifiably tarnished.  Ultimately, the children would benefit.