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Four children assigned to foster parents by the Arkansas Department of Human Services (DHS) have died in recent months — a shocking number for a state that hasn't had a foster-child death since 2003.
The number came to light thanks to a Freedom of Information Act request to the agency from the Arkansas Advocates for Children and Families (AACF).
But DHS has refused to release information about the nature of the deaths except to say that two of them are under investigation as maltreatment cases. Even after the State Police made an arrest in one of those cases on Aug. 11, DHS declined to comment further, citing a statute that prevents disclosure of ongoing department investigations.
Which raises the questions: When is DHS justified in withholding information about foster-child deaths? What sort of information should it be able to conceal? Is the public's need to know about the circumstances of the deaths outweighed by DHS's need to complete an investigation before putting details out in the open?
The Times asked DHS for basic information about the deaths: names if available, location and — most importantly — circumstances of death. What caused each child to die? What distinguishes a case that apparently involves child maltreatment from one that doesn't?
DHS said it can answer none of these questions. It cited state statute 12-12-506, which says, “Information on a pending [child maltreatment] investigation is confidential and may be disclosed only as provided in this section” — a section that does not include reporters or the general public.
Past court rulings have drawn a line between information that can be considered part of an investigation and that which must be public record. In “Hengel v. City of Pine Bluff” (1991) the state Supreme Court ruled that the Freedom of Information Act doesn't exempt contents of police reports — which generally contain the type of information that the Times wants to know — from disclosure to the public.
Lawyers for DHS have denied that the case is precedent for its own child maltreatment investigations. Though the results of investigations may be revealed if they are determined to be true, the law makes it illegal to disclose unsubstantiated accusations of child abuse. DHS lawyers argue that any information released about an allegation under investigation may violate that provision.
Though it would be an uphill battle, said Rick Peltz, a professor at the University of Arkansas at Little Rock's Bowen School of Law who has written on the FOIA, the nondisclosure law might be challenged in court by arguing that information about child maltreatment cases analogous to that contained in a police report should be publicly available. But Peltz doesn't think the law as currently written allows even basic information to come to light.
“It seems to me that one thing we could have improved on was allowing the release of information,” Peltz said. “I don't like it, but I think the DHS position holds up.”
Advocates for foster children have expressed frustration at being unable to discover the cause of the deaths.
Jennifer Ferguson, deputy director of the Arkansas Advocates for Children and Families, said that, while AACF doesn't deal with individual cases, it believes specific details about the deaths should be made available as quickly as possible.
“We feel it's very important for them to finish the investigation timely, because we think it speaks to some overall issues in the system,” Ferguson said.
Dia Sawyer, a Jonesboro-based advocate for foster children and member of the federally funded Arkansas Area VIII Adoption Coalition, is more skeptical of DHS' motives in not discussing the foster-child deaths. She said she felt DHS' refusal to provide information suggests that the agency is covering something up.