Innocents Lost: Florida’s undercount of child abuse deaths

03/23/2014 1:00 AM

10/19/2014 8:02 PM

This story is part of the Innocents Lost investigative series. Read an enhanced version of this story here.

Nubia Barahona was found on Valentine’s Day in the flatbed of a pest-control truck. She had been imprisoned and starved, beaten and tortured, then doused in toxic chemicals before her corpse was disposed of in a black garbage bag.

The 10-year-old’s death in 2011 was so gruesome — and the Department of Children & Families’ role leading up to it so inept — that it sparked firings and resignations, a series of angry public hearings, new state laws and a public street that bears her name. To this day, the name Nubia is a rallying cry to some, symbolizing everything that is wrong with DCF.

It turns out she also personifies something else: DCF’s penchant for minimizing the number of deaths of children it was supposed to protect. Last month, Florida marked the three-year anniversary of Nubia’s passing and the state has yet to send her case to the Florida Child Abuse Death Review Committee, which catalogs child deaths.

The death review committee has a somber but important role: Besides keeping a count, it studies such tragedies in hopes of learning lessons that will avert similar deaths in the future.

“This is an insult to her memory,” said Miami-Dade Circuit Judge Jeri Beth Cohen, a 15-year veteran of child welfare court who chairs Miami’s foster care oversight board.

How is it that Nubia didn’t count?

The committee operates under the umbrella of the Florida Department of Health with data provided by DCF. Its annual report, submitted to the governor and the Legislature, is the official word on how many children die of abuse and neglect in Florida. That information should arm lawmakers with the information they need to make decisions on funding and improving DCF.

Since the beginning, the report had a category stating how many abuse or neglect deaths involved victims from families with a prior DCF history. That number — “deaths with priors” — is a key benchmark for evaluating DCF’s effectiveness.

The Miami Herald’s yearlong investigation of six years of Florida child deaths revealed that the governor and Legislature were being supplied incomplete, artificially low numbers in this category.

For instance: In 2008, Florida’s total number of “deaths with priors” was 79 in the official report. The Herald counted 103, using DCF’s own records. In 2009, the report cited 69 deaths. The Herald counted 107.

After 2010, the report no longer separated out “deaths with priors.”

NO CONSPIRACY

Because it takes time for DCF to “verify” that a death resulted from abuse or neglect, it isn’t surprising that some last-minute deaths wouldn’t make the annual report. Some, however, sit on the shelf, still “open” in the parlance of the state, for months — and, in Nubia’s case, years.

“They are not willing to admit how bad things were or how bad things still are. But that’s the first step in improving. You have to admit you have a problem before you can make an attempt to fix it,” said Paul Neumann, who was Nubia’s court-appointed guardian.

“They don’t want the numbers because they make the state look bad,” said Manatee County Sheriff’s Maj. Connie Shingledecker, who oversees that county’s child protection program for DCF and served 10 years on the statewide Child Abuse Death Review Committee, four of them as chairwoman.

Not counting child fatalities, Dr. Bruce McIntosh wrote in a June 2013 email to other public health officials, “will have the effect of causing these preventable deaths to disappear from public awareness.”

McIntosh, medical director of the Child Protection Team in Jacksonville, added that DCF “will not change this policy of its own will. Thus, while DCF statistics will appear to show a decrease in infant and child deaths, those deaths will continue, and efforts at public education to prevent them will not be supported.”

DCF’s interim secretary, Esther Jacobo, said there is no conspiracy.

“I am aware of the critics, and I know the death review folks have long wanted us to verify more [child deaths] so they could see more,” Jacobo said. “I can’t imagine that we are quite that organized to have that kind of large conspiracy where we are cooking the numbers. There are too many people involved with it.”

She acknowledged that what is seen as verified child abuse in one part of the state might be viewed differently elsewhere. Each region has its own staff of investigators and administrators who review child deaths before they are sent to the state committee, and they often interpret the agency’s policies differently.

The disparities have been marked: Since 2008, the Herald counted 51 child deaths with a DCF history in Broward County, compared to 25 for Miami-Dade, which has 30 percent more children.

Broward, where DCF outsources the investigation and verification of child deaths to the Broward Sheriff’s Office, had at least 14 more fatalities with a prior agency history than any other county in the state.

Former BSO Cmdr. James Harn, who supervised protective investigators before retiring when a new sheriff was installed last year, said disputes over verification of child deaths usually involve cases in which a parent’s drug use or inattentiveness resulted in the death. “They certainly didn’t want the child to die,” Harn said, “but neglect led to the death, so we’re going to verify it.”

Administrators at BSO reported 23 abuse or neglect deaths to the statewide Child Abuse Death Review Committee in 2012. DCF leaders in Miami reported three that year. Miami’s three deaths verified as abuse or neglect emerged from a pool of 285 overall child fatalities; Broward investigated 181 that year.

About nine other 2012 Miami-Dade deaths remained “open,” or pending, by the fall of 2013, meaning they aren’t accounted for in the yearly tally.

PRECIOUS RESOURCE

The backlog of death investigations became so acute that members of Miami’s Local Child Abuse Death Review Team, which studies such deaths in concert with the state team, complained in a series of September 2013 emails that they had nothing to study.

“This is a waste of a precious resource in our community,” said one email, from a member of the team to DCF.

In late January 2014, the Herald asked Jacobo about the status of one case, the Nov. 13, 2012, killings of sisters Daniela and Julia Christina Padrino. Police say the girls’ estranged stepfather, Alberto Sierra, suffocated mother Gladys Machado with a plastic bag, and then asphyxiated the girls. Sierra confessed.

Machado had been the subject of four reports to DCF in 2010 and 2011, mostly involving allegations of domestic violence among Machado and at least two men — one of them Sierra. He had been arrested 15 times since 2000.

Sierra had bitten Julia on her arm in October 2011, according to a report to DCF, leaving a visible wound. Although DCF verified that October allegation as child abuse at the time, the agency took no action to protect the girls, concluding the sisters were safe while Sierra was in jail on a probation violation. Machado promised to divorce Sierra and keep him away from her daughters. She changed her mind after he was released from jail.

The day after Daniela’s fourth birthday in November 2012, Sierra killed the three in a fit of rage after Machado took a phone call from another man, Sierra told police. All three were found stuffed in the closet of an abandoned home. DCF verified the two girls’ deaths as abuse or neglect — so they could be studied and included, finally, in the yearly tally — a week after the Herald inquired about them, and more than a year after they occurred. Sierra is awaiting trial.

Also pending in Miami-Dade, according to the local death review team: the Feb. 20, 2013, shooting death of 11-year-old Stefan Zuniga, allegedly by his father; and the May 16, 2013, hypothermia death of Bryan Osceola — police say he baked in his mother’s sealed vehicle two months after she had been charged with driving under the influence with Bryan unrestrained on her lap.

Still others pending: the June 20, 2013, death of Ezra Raphael, allegedly beaten by his mother’s boyfriend; and the July 17, 2013, death of Jayden Villegas-Morales, whose father is awaiting trial on manslaughter charges. After a sibling suffered a broken leg while in the care of his mother, DCF placed Jayden in his father’s one-bedroom efficiency, joining eight other children, two adults and a puppy.

Based on these circumstances and their families’ prior contact with DCF, the Herald included Bryan, Ezra and Jayden in its count of 477 neglect and abuse deaths.

A DCF spokeswoman, Alexis A. Lambert, said that such cases remain open while the agency awaits “additional information” on them.

An email to Lambert and Jacobo on Friday afternoon asking the status of the Nubia Barahona file went unanswered.

AT RISK, WITH INTENT

Another reason to question DCF’s oft-stated assertion that child deaths are declining: In September 2010, DCF’s top death review coordinator, Keith Perlman, wrote new guidelines for investigating child deaths that redefined neglect.

The new protocol states that DCF should only verify drowning and accidental suffocation deaths if a parent deliberately placed his or her child in danger. A child’s drowning is considered the result of neglect if the caregiver understood the child was “at risk, and, with intent, allowed the child to be placed at risk,” Perlman wrote.

Perlman also said that a child smothered by his or her parents while “co-sleeping” in an adult bed did not necessarily die of neglect if the parents’ behavior met a “socially acceptable threshold.” If other parents sleep with their small children in an adult bed, he wrote in the September 2010 memo, then such behavior — while dangerous — is not neglectful.

The policy shifts came at a time when the agency was under fire for failing to prevent child deaths.

A DCF employee, who had written several emails criticizing the agency’s policies, said the decision to exclude some drowning and unsafe-sleep deaths was explicitly designed to improve DCF’s image.

“Secretary [David] Wilkins asked how would we look if we did not include unsafe sleep and drowning deaths,” Ron Hardcastle, a then-DCF public assistance employee, wrote in an April 2011 email to DCF’s then-child welfare chief documenting a meeting with the secretary. “The Secretary indicated we ought to consider excluding these deaths.”

Wilkins said he recalls discussing child protection with Hardcastle, but denies ever suggesting his agency suppress numbers. “That, of course, is not true,” said Wilkins, who resigned last summer amid an uproar over child deaths.

Records obtained by the Herald show that in June 2010 DCF codified the new definitions of neglect into the written procedures that govern how child deaths are classified. For example, for an in-bed smothering to be verified, the new rules state, the death must result from “a willful act of the caregiver.” Florida’s child abuse criminal statute, on the other hand, requires no such willful act to charge a parent with a felony.

In the ensuing months, the number of child deaths reported by DCF declined.

One 2-year-old drowned in her uncle’s pool in August 2011 when his mother wasn’t paying attention. A half-year earlier, the mother had been the subject of a report that her drug use and improper supervision endangered the child.

“The death did not appear to occur as a result of a direct willful act of the caregiver,” a DCF investigation of the drowning concluded. “It was a result of not providing essential supervision for her.” The death was not verified as neglect.

UNSAFE SLEEP

In another uncounted death, the mother of a 1-month-old Pinellas County girl had signed a “Safe Sleep Notification Form” twice, affirming that she had been warned of the dangers of sleeping in the same bed as her newborn. It was especially unsafe because the 23-year-old was taking methadone every day to wean her off a years-long pain pill addiction.

The mother had a lengthy DCF history, including allegations that she abused marijuana, Ecstasy, and painkillers “on a daily basis in the presence of her children,” injected drugs into her veins, had left one of her children unsupervised at a Walgreen’s, and breastfed another infant while abusing drugs. The woman, a report said, “had criminal charges that involved violent and drug-related” offenses. A report that the mother had locked one of her children in a dark attic so she could do “grown-up stuff” was still pending when DCF received its next report, the household’s sixth, about a death.

On March 31, 2011, the mother went to bed — with her newborn beside her and a 1-year-old sleeping on a tiled floor. When the mother awoke, her infant was “unresponsive and turning purple in color,” a report said. The cause of the newborn’s death was accidental asphyxia, precisely the tragedy the safe-sleeping pledge was intended to prevent.

When the case was closed unverified, an investigator asked the woman to sign another safe-sleeping pledge — her third.

During Memorial Day weekend in 2011, the mother of a 1-year-old boy was texting at poolside during a holiday cookout at a community pool. Her toddler went under the surface and didn’t come up. A 10-year-old boy discovered him at the bottom of the pool, jumped in and retrieved him.

“Law enforcement officials indicated that there were approximately 20 adults present at the party, including [the boy’s] mother, who was reportedly sitting in a chair away from the pool texting on her cell phone,” DCF reports on the incident stated.

Medical personnel told DCF the boy had been in the pool “for quite some time” before his limp body was found, judging from his body temperature.

DCF declined to verify the boy’s death as stemming from neglect, reasoning that the behavior of his 24-year-old mother was no more neglectful than other parents visiting the public pool.

“Along with [the boy],” a report said, “there were several other children in attendance that were likely not supervised properly.”

McIntosh, the medical director from Jacksonville, believes the agency’s reasoning is flawed.

“Just because a lot of people leave children unattended by swimming pools does not make it right,” he wrote in a memo to child death reviewers.

“There was a time when parents did not have to buckle their children into car seats, during which time thousands died annually in car accidents,” McIntosh wrote. “These deaths are now prevented. We are tasked with identifying avoidable death hazards that need to be corrected, not simply accepting the way they are.”

JUST AN ACCIDENT

DCF declined to count one suffocation fatality as neglect because investigators could not determine which parent was responsible.

On Feb. 22, 2013, a 35-day-old boy was smothered after his parents placed him in an adult bed between them, a report said. The newborn’s mother awoke to find him not breathing and “white in color.” Official cause of death: accidental suffocation and strangulation. Both parents tested positive for drugs: the mother, for marijuana, the anxiety drug benzodiazepine and methadone; the father, for marijuana and benzodiazepine.

“Case is being closed with not substantiated findings of death, due to not being able to determine which caregiver was responsible for the rollover onto the child,” a report said.

Even after a case has been verified, it can be unverified by high-level DCF administrators.

Harn, the former BSO commander, said DCF death reviewers in Fort Lauderdale sometimes took issue with his unit’s findings, determining that some drowning or co-sleeping deaths were not neglectful, and should not count.

“They gave the rhetoric that it was truly just an accident,” Harn said. “We refused to change them.”

Nevertheless, they were changed. Harn said that in at least two cases, DCF administrators entered the agency’s computer system and shifted child deaths from verified abuse or neglect to unverified. Lambert, the DCF spokeswoman, said she was “not aware of any policy” that addressed whether an agency employee could reverse a verified death finding after a case was formally closed.

Shingledecker, the sheriff’s major who supervises child protection in Manatee, openly criticized DCF’s then-top child welfare administrator, Alan Abramowitz, in a death review committee meeting around the fall of 2010 when he allowed his agency to remove one drowning death from the list of cases her committee had already analyzed. “We reviewed it. We agreed it met our criteria,” Shingledecker said. Discarding the case “didn’t seem appropriate at the time.”

Abramowitz, who is now the statewide director of the Guardian-ad-Litem Program, which provides lay advocates for children in court, remembers the dustup. “It was the only case ever where I said this does not make sense,” Abramowitz said. “It was the only case I ever made a big deal about.”

NOT COUNTED

Although Broward County leads the state in verified abuse and neglect deaths, Kim Burgess, the Department of Health’s drowning prevention coordinator in Fort Lauderdale, said that dubious distinction derives from BSO investigators counting most drownings as neglect, while counties in which DCF investigates deaths often do not.

“They’re not counting them. They don’t want to count them,” said Burgess, who also chairs the Broward child fatality team. “To them, drowning is not an issue.”

The result, Burgess said, is that health and child welfare administrators in many parts of the state have done little to sound the alarm about the potential dangers of unsupervised children around pools and canals. “Every child death, especially drowning, needs to be investigated,” Burgess said. “A child has died. We need to know how that happened, why that happened, and whether it was preventable.”

She said the agency also needs to present a full tally to the governor and lawmakers to justify adequate child welfare funding.

Reviewing child deaths, “allows us to do educational activities, and to, hopefully, prevent some of the deaths — which is, ultimately, our goal,” said Dr. Mary Stockett, who was medical director of Brevard County’s Child Protection Team until last year.

“If there is any justice for the deceased child and what he experienced in his life,” she said, “it is that, maybe, it will allow some other child to survive and not succumb to the same fate he did.”

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