4A
THE DAILY ASTORIAN • WEDNESDAY, NOVEMBER 28, 2018
Children: Timing is critical for wrongful death lawsuits
Continued from Page 3A
That previous limit is likely why state offi-
cials maintain they weren’t required to exam-
ine the strangling death of 12-year-old Caden
Berry in January 2017. His older brother tried
to report the abuse he said they both endured
to child welfare workers in 2016, but nothing
was done. Their mother now faces charges of
aggravated murder, murder by abuse and crim-
inal mistreatment.
State officials did issue a truncated prelimi-
nary review of Berry’s death in July 2017, but
they called their decision to do so “discretion-
ary.” They stripped it of any information about
department missteps, writing, “Due to the
ongoing criminal investigation, this report does
not include any department history regarding
this family.”
A leading child welfare advocate, Gelser
backed the changes to the fatality review pro-
cess last year that expanded the scope of
reviews. When the state’s child protection sys-
tem breaks down, officials owe it to child vic-
tims to see what can be learned, Gelser said.
The process, she said, is not about blaming any
state worker or workers, but about improving
outcomes for children.
“The intention is supposed to be that it’s
open and transparent, consistent with the law.”
That’s not what happened.
Incomplete picture
The Department of Human Services did not
disclose its review of Secord’s death until Nov.
5. His family had mourned him for 648 days.
The report it published runs just two pages. An
internal case review obtained by The Orego-
nian is 13.
The department concluded in its pub-
lic report that none of its actions or inactions
directly led to his death. The report says the
agency received seven reports involving his
safety between 2012 and 2017.
The longer internal report, however, says
case workers did not adequately assess Sec-
ord’s well-being during prior investigations.
The document lists, case by case, the four times
that Secord came to the attention of child wel-
fare workers between 2012 and 2017. (The
other three reports were made following his
death.) Case workers did not substantiate alle-
gations of neglect or abuse by the parents in any
of those instances.
In the internal report, the reviewer con-
cluded that the child welfare worker who took
the report that he’d been hospitalized in August
2016 should have talked to other people both
inside and outside of Secord’s family before
deciding not to investigate. His blood alcohol
level was .408, five times the legal limit for an
adult.
Until contacted by a reporter last week,
McKune did not know case workers were
alerted to her grandson’s hospitalization. Sec-
ord and his family lived near her in Warrenton,
and she was especially close to him and his sib-
lings. Had someone told her they were look-
ing into how he had obtained the alcohol, she
would have said, “Please and thank you.”
“If they knew, they should have said,
‘We’ve got to get to the bottom of this, because
this isn’t OK,’” she said.
She began her own calls to police and a
child welfare hotline. She wanted someone to
act on her reports about the man she believed
was providing her grandson alcohol. Child wel-
fare workers who took her calls sometimes told
her they would pass her report along to a case
worker to investigate, she said, but she never
heard anything more.
After Secord died, she said, a case worker
told her there was no record of her calls.
Secord stopped by her house two days
before he died. She chided him for not being at
school. He said he was on his way but wanted
to tell her he had bought something to eat and
drink for a man who had nothing. Secord said
he walked with him to a store to buy him some-
thing with the $11.96 he had.
“That was the kind of boy he was,” McK-
une said.
She sometimes wears a sweatshirt with his
face on it, and people stop her to share stories.
One girl said he did not know her but stopped to
help her when he saw her struggling with two
men as he rode by on his skateboard.
“I said, ‘Well that’s our boy,’” his grand-
mother said.
It’s not clear why all the information in Sec-
ord’s case file review was not published in the
public report. Oregon law requires the depart-
ment to publish the findings of the fatality
review panels.
Although child abuse reports are confiden-
tial in most cases, they are not after the child
dies. Oregon law mandates records regarding
the death be made public if a child died or suf-
fered a serious injury as a result of abuse.
For Secord’s birthday this year, his grand-
mother tied balloons to the red memorial she
built for him in her front yard. She didn’t know
a report involving his death was ever released.
“He just had the world at his feet,” she said.
“How quick it can all stop.”
Misleading the public
Other states’ child protection agencies act
with much greater speed and transparency
after a child’s death. Colorado publishes nearly
instant updates to its online database. Nevada
must disclose case information within 48 hours
after a child dies. Arizona publishes both initial
and final reports following a child’s death.
Oregon is required to keep the public
informed about what’s going on by posting reg-
ular updates. But it has not done so at times in
the past and has failed to do so at all in the past
year and a half.
The Oregonian obtained an internal agency
review of the April 2017 death of a Lane County
teenager. He died by suicide five months after
child welfare workers checked reports that he
was suicidal and had been physically abused by
his father.
To this day, the department has said nothing
about the boy’s death.
Gelser, who tracks the fatality reviews, said
she has asked the department several questions
about reports that appear to be delayed or miss-
ing. She was told that clerical errors contributed
to the delays.
Five of the six fatality reports the state has
issued this year mislead the public about their
timeliness, as they are dated earlier than they
were released. The most recent report, regard-
ing the death of two sisters in a fire in Eastern
Oregon, is dated in bold letters Oct. 18. It first
appeared on the state’s website Nov. 15, four
full weeks later. It was posted one day after The
Oregonian asked the department why it was
failing to comply with the reporting law.
McGinnis, the department spokeswoman,
said the agency dates the documents when they
are submitted for approval, not when they are
made public.
The department issued a report about a
Roseburg baby’s spring 2017 death on Aug. 7
of this year. It’s dated June 26.
The agency completed a nine-page inter-
nal review into the baby’s death Sept. 29,
2017. That document, never made public but
obtained by The Oregonian, details three inter-
actions with infant’s family that were not dis-
closed in the public report.
Under Oregon law, the fatality review team
must request an extension if its members are not
finished with their report within the required 70
days and each 30 days thereafter. Pakseresht,
the agency’s director, must weigh the request
and decide if the delay is acceptable.
He can take into account whether pub-
lishing a report may compromise a criminal
investigation.
The department has only published one
report this year regarding a child whose death
led to criminal charges. The man who supplied
Secord alcohol the day he died was sentenced
in June to 10 days in jail. It was the same man
his grandmother tried for months to report,
McKune said.
The department has publicly acknowl-
edged its child death reports are late in just one
instance: a fatality report published Nov. 6. It
cites staff changes and the 2017 changes in
state law as reasons for the delay.
Internal emails submitted as court evidence
eight days ago highlight the defensiveness
behind some fatality reviews. In one message,
Yamhill County supervisor Stacey Daeschner
defended her employees’ decision not to rule
that the May 2016 co-sleeping death of Nevaeh
Ellis was the result of neglect. She explained no
one had told Ellis’ mother, who had an exten-
sive history of risky behavior around her chil-
dren, that co-sleeping was dangerous.
When a superior asked Daeschner to explain
her reasoning, she forwarded the message to a
colleague and added, “this makes me want to
throat punch her.”
Daeschner said during a deposition in May
that a fatality review was a negative experience
for her and her employees. “There is a process
where you go through a file review and the con-
sultant really picks apart all of the errors you
made in the case,” she said under oath.
She is named, along with the Department of
Human Services, in a wrongful death lawsuit
seeking $3 million for Ellis’ survivors.
Costly cases
Timing is critical for wrongful death law-
suits. Families must provide official notice,
called a tort claim, that they plan to sue the state
for alleged negligence within one year after a
child dies.
At a March 2017 legislative hearing, Gelser
acknowledged that the specter of civil litigation
factored into the requests to change the fatality
review laws. The state does not want “reports to
be used in a tort claim where you just go hand
it over and say, ‘Here’s my case,’” she said.
Stacey Ayers, who led the state’s child abuse
investigation unit at the time, agreed.
The state has paid nearly $1.5 million since
2016 to settle wrongful death claims brought
by the families of two toddlers whose deaths
were reviewed in the fatality reports. It is about
to pay $1.1 million more, pending a judge’s
approval, that will go to the siblings and attor-
ney of Berry, the Keizer boy who was stran-
gled to death.
“There is a significant question whether the
state has relied for years on these cases fall-
ing through the cracks and enjoying the bene-
fit of not having to pay for their negligence as
a result,” said David Kramer, a Salem attorney
representing the estate. He confirmed the tenta-
tive terms of settlement to The Oregonian.
The state’s lawyers are fighting four ongo-
ing wrongful death lawsuits, including one
filed on behalf of Ellis’ survivors and a sec-
ond suit filed on behalf of the family of Gloria
Joya, a teenager who died in foster care from an
untreated health condition.
Their deaths, in 2016, are the most recent
chronicled by fatality reviews that include
detailed timelines of the state’s case histo-
ries with their families. All of the subsequent
reports provide much less information.
Wrongful death lawsuits can crawl through
the court system for years. The state agreed to
pay $750,000 to survivors of Coltin Salsbury,
who was killed in March 2014 by his mother’s
boyfriend as case workers were investigating
whether or not he was being abused. The case
wasn’t settled until August 2016.
At least two more mothers have given notice
that they may sue the state for allegedly caus-
ing the deaths of their boys in separate foster
homes. One of the boys, Nicholas Lowe, died
in a fire with his four foster siblings and their
biological mother in March 2017. His mother
contends the state’s decision to place him in a
“dangerous home” caused his death.
The Department of Human Services has
never publicly acknowledged that Lowe died
in the state’s care.
Need help getting
health insurance
by the Dec. 15
deadline?
GET FREE LOCAL HELP!
www.OregonHealthCare.gov | 1-855-268-3767
1139 Exchange Street
Astoria, OR 97103
503-440-3909
duganins.com