When children are nearly killed by abuse: Lawmaker says he’ll resubmit bill that better defines public access


Maybe you noticed the story about Austin Kinder, the Mishawaka man who was sentenced for nearly killing his 10-month-old son last fall. He told the judge he beat his child so badly the boy was airlifted to Indianapolis because he was angry the baby’s mother didn’t love him like she used to.

Or maybe you saw the news about a LaPorte 18-year-old, Casey Measles, who was arrested after police allege she shook her 3-month-old son so badly that he, too, was still clinging to life at Riley Children’s Hospital.

Or how about the 26-year-old Plymouth mother, Amanda Nethercutt, who a few weeks ago was charged with attempted murder, accused of wrapping her hands around her 6-year-old daughter’s neck and holding her under water in the bathtub in an attempt to drown her? The girl’s face had turned blue, police say, and was saved after her grandmother intervened.

Because all three have now been charged with crimes, we now know a little about the tragic near deaths of these children in our community.

What we still don’t know is whether anyone in Indiana’s child protection system had earlier clues that might have prevented these children from what will undoubtedly be lasting trauma.

We have some hints that trouble might have been spotted sooner in at least two of these cases:

  • Austin Kinder’s two children had been removed from his home about six months before he was arrested for the near-fatal injuries in September 2014 — because the baby was found to have been physically abused six months earlier, as well. We don’t know the circumstances behind why baby Josiah was returned to his father’s care.
  • The Measles baby — who at last report is on a ventilator with a “deep brain bleed” — would not stop crying, and his mother told police she shook him out of frustration. The mother was arraigned Friday on two Level 3 felonies: aggravated battery and battery.

According to WSBT, the documents in the case said Measles told police she’s usually never alone with the baby due to ‘‘anger management issues.’’ But there was no explanation why it was just her and the boy in the room by themselves. Had some agency previously been alerted to the young mother’s “anger management issues”?

Indiana law decrees that Department of Child Services and other records involving a child’s “fatality or near fatality” should be made public. The trouble is, although it’s clear what “fatality” means, “near fatality” is undefined in state statute and open to interpretation.

DCS, in fact, wrote its own interpretation. Judges trying to determine what state law would allow have ruled against attempts to examine the documents relating to children who by most definitions certainly suffered a “near fatality” — including little Josiah Kinder.

Under CAPTA — Child Abuse Prevention and Treatment Act — the federal definition of a near fatality is “an act that, as certified by a physician, places the child in serious or critical condition.”

The problem is, doctors don’t issue “near-death certificates” the way they do death certificates. And it does not define what constitutes “an act.”

In the 2014 General Assembly session, state Sen. John Broden, D-South Bend and a former DCS attorney, submitted a bill that offered a definition of near fatality: a “severe childhood injury or condition that results in the child receiving critical care for at least 24 hours following a child’s admission to a critical care unit.”

Broden explained that the attorneys who make up the Legislative Services Agency, which crafts the language in bills, researched other states’ definitions before settling on that one.

But when the bill was heard in the Senate’s Committee on Family and Children’s Services, a DCS attorney raised concerns about the definition, worried that it if violated CAPTA and its confidentiality requirements, federal funding might be lost. So lawmakers tabled the issue.

“Nobody wanted to move something forward — even if it was crying wolf — if it was going to jeopardize federal funding,” Broden said.

But nationally, there are calls for more transparency and attention to be paid to the near deaths of children to more fully understand how to keep children safe.

“New research suggests that studying near-fatal events of child abuse also may be very important,” Dr. David Sanders, the chairman of the Commission to Eliminate Child Abuse and Neglect Fatalities, wrote in a blog in March. “This is because near fatalities are similar to fatalities in almost every way we can measure them.”

Often the only factor that determines whether a child dies is the quality of the medical care he or she receives, he wrote.

But studying near fatalities is difficult, he says, because “there is no clear definition of such events.” CAPTA offers a definition, he notes, but state definitions vary. (In fact, in his blog, Sanders quotes California’s definition — which is nearly identical to the definition in Broden’s bill.)

Because the definitions so vary and states are not required to review or report near fatalities the same way they do fatalities, he wrote, we don’t know how many children are so seriously injured or learn how they could have been prevented.

Sanders’ agency, created by federal law in 2010 to develop a national strategy to combat child abuse deaths, “is studying near fatalities closely,” he wrote.

Broden said attorneys for DCS, LSA and the caucus attorney have met once since the last session ended and continue to research other states’ policies.

Whatever that group’s recommendation, the senator said he “absolutely” intends to resubmit the bill for the General Assembly session that will begin in January.

Indiana’s child protection system compromises not only DCS, but also courts, law enforcement, schools, doctors and more. More openness when Indiana children are seriously injured is crucial — not to assign blame, but to pinpoint policies or areas where we can do better.

Confidentiality meant to protect children and families does more harm than good when it is allowed to undermine the public’s confidence that we’re doing all that we can for our most vulnerable.

Virginia Black is a reporter for the South Bend Tribune. Send comments to [email protected].

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