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Foster Child Fatalities

DPRS should thoroughly investigate the deaths of foster children.

Background

As with other children, foster children sometimes suffer from medical problems, accidents, abuse or neglect and, unfortunately, some of them die. Unlike other children, foster children must rely on a state agency to speak for them, and to investigate their deaths.

The dimensions of the problem are hard to gauge. According to the U.S. Department of Health and Human Services (HHS), 18 children died of child abuse or neglect by a foster caretaker in 48 states in 2001. These numbers, however, do not include deaths in the populous states of California and Michigan, which did not report to HHS.¹

Federal agencies do not separately track the deaths of foster children caused by other factors, such as accidents or medical conditions. Since the federal government does not require it, states generally fail to collect such data as well.

When Foster Children Die

When DPRS determines that a Texas foster child dies from a clear case of abuse or neglect, the case receives substantial review both inside and outside of DPRS. In addition to regional investigations and reviews, the DPRS state risk director and the DPRS Child Safety Review Committee (CSRC), comprising state-level DPRS staff and a representative of the Texas Council on Family Violence, also review these cases. The risk director and CSRC focus on DPRS internal policies, procedures and other factors that may affect child deaths.

Melissa’s Story
When EMS arrived, Melissa was "somewhat stiff" and pronounced dead at the scene.

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On the other hand, when a foster child dies from other causes, the case usually receives little or no review beyond the initial investigation, unless the DPRS district office decides to refer it to the state level. A medical examiner or another authority outside of DPRS may refer the death to a local Child Fatality Review Team (CFRT), or the team may select it for review from local child death certificates. CFRTs are multi-disciplinary, multi-agency teams, including representatives from DPRS, the Texas Department of Health, law enforcement, emergency services and others, which focus on identifying problems with services and interagency coordination that may contribute to child deaths; they do not review DPRS internal policies, procedures and practices.

A Comptroller staff review of the case files of 28 of the 44 foster children who died in fiscal 2002 found that the agency referred only the child abuse and physical restraint deaths to the state level for review. DPRS confirmed that agency policy is to refer only those deaths in which the foster caretaker is believed to have abused or neglected the child, unless a district director decides otherwise.²

The Texas Record

In Texas, 44 children in DPRS conservatorship died in fiscal 2002, which is the most recent year of completed investigations data available.³ The Child Care Licensing (CCL) Division investigated 28 of these deaths, since the children died after being placed at a residential facility. Child Protective Services investigated the remaining cases.

Of the fatalities for which data on the cause of death were provided, two were due to abuse and neglect by a foster caregiver; three were from unknown causes; three were suicides; five were the result of traffic accidents; and 18 deaths were the results of medical conditions or complications, including one death from Sudden Infant Death Syndrome (SIDS). (SIDS is the sudden death of an infant under one year of age that cannot be explained after a thorough case investigation, complete autopsy, examination of the death scene and clinical history review.)⁴

Of the 18 deaths from medical complications or natural causes, 10 were the result of abuse or neglect injuries received before the children entered foster care.

Abuse and Neglect

A 1999 study conducted in North Carolina, and another performed in Colorado in 2002, found that states do not record as many as 60 percent of child deaths due to abuse or neglect. The studies found that neglect is the most under-recorded form of fatal maltreatment.

Part of the problem is that states define abuse, neglect and child homicide differently, but the studies also noted that incomplete investigations may rule some deaths actually due to abuse and neglect as accidents, homicides or SIDS.⁵ No one has conducted similar studies in Texas.

One of the deaths indicated in the chart below as caused by foster caregiver abuse was a two-year old boy who died of blunt head trauma in 2002. A coroner ruled the death a homicide. Despite substantial bruising over much of his body, the child’s foster mother denied doing anything to hurt the child, insisting that she was playing with him and that he simply went limp. The District Attorney presented charges of murder against the foster mother to the Grand Jury. DPRS removed the other three foster children in her care from the home.

The Texas foster parent of the child who died of SIDS in 2002 had a prior DPRS record of emotional abuse and medical neglect of an elderly woman whom she cared for in her home. Before the baby died, DPRS received allegations that this person had abused the baby. According to two witnesses, the foster mother repeatedly pushed the child’s face into stroller cushions to muffle his crying. The DPRS investigator ruled out abuse or neglect regarding these allegations due to “a lack of evidence.” Concerning the child’s death, the investigator determined that, since the medical examiner ruled that the child died of SIDS, no abuse or neglect occurred.⁶

Exhibit 1
Child Deaths in DPRS Conservatorship 1999-2002

DPRS-Stated Cause of Death Fiscal Years

1999 2000 2001 2002

Foster Caregiver Abuse or Neglect (includes restraints) 2 2 4 2

Suicide 1 3 0 3

Drowning 2 1 0 0

Vehicle Accidents 4 0 0 5

Other Accidents 1 0 1 0

Medical Conditions or Complications or Natural Causes 5 12 18 17

Medical - Sudden Infant Death Syndrome 0 2 4 1

Unknown or Undetermined 1 1 1 3

Uncategorized * * 10 13

Total 16 21 38 44

*Data unavailable
Source: Texas Department of Protective and Regulatory Services.

Physical Restraints

Some deaths related to “physical restraints”—as the name implies, the act of immobilizing a child by holding him or her tightly—have been highly publicized over the past decade across the country.

The Hartford Courant, in a five-part 1998 series on physical restraints that drew national attention, estimated that “Fifty to 150 people die every year as a result of being physically restrained or put in seclusion in institutional settings.”⁷ The federal government is currently considering legislation on restraints.

Children who die from restraint usually asphyxiate, either because of excessive pressure on the chest or due to pressure on the stomach that causes them to choke on their own vomit; some have heart attacks.⁸

Two Texas foster children died during or soon after restraint in fiscal 2000. In addition, a 2001 death at a residential treatment facility, labeled an accident, also occurred after physical restraint. One foster child who died in fiscal 2002 did so after several employees restrained her at a residential treatment center; another died after a restraint at a school. Two children who were not foster children also died in residential childcare in fiscal 2003 after being restrained.⁹

Texas’ licensing standards and their enforcement do not adequately protect children from death and injury from restraints. Although the standards prohibit certain restraint actions, such as placing a child face down and placing pressure on the child’s back, these standards have not been sufficient to prevent deaths and injuries.¹⁰

In addition to these deaths, DPRS found 155 licensing violations related to physical restraint in residential facilities while investigating abuse complaints in fiscal 2003, including injuries, inappropriate or excessive restraints and inadequate training or supervision. Most occurred in residential treatment centers, which treat many children with severe behavioral problems.¹¹

To learn about safer restraints—and find some protection from liability—some providers have purchased and used materials for “Prevention and Management of Aggressive Behavior (PMAB®),” a training program designed by the Texas Department of Mental Health and Mental Retardation (MHMR) for use with adult patients, to reduce the chance of death and injuries from physical aggression.¹² Although the program has been successful in MHMR facilities, it is not without risk, and the agency cautions that:

Although it is designed to reduce the danger inherent in any attempt to manage aggressive behavior, there is a risk of serious injury or death when teaching, learning, demonstrating, and using PMAB®, even when the procedures are performed correctly.¹³

MHMR sells the manuals, tapes and training materials for $600, but does not provide training outside of its facilities. MHMR’s PMAB® trainers are certified to teach PMAB® only within the MHMR system and only for so long as they work in the system. Residential foster care providers who purchase the program with the intent of applying it in their facilities, then, do so without certified trainers and without the endorsement or the legal or organizational support of MHMR.¹⁴

PMAB® staff at MHMR caution that the agency developed the system for adults, not children, and that it does not take into account the psychological aspects of the physical and sexual abuse that many foster children have experienced. Furthermore, reading the materials and watching the videos do not provide aspects of training that a certified instructor gives verbally during the training session, such as accommodations that a person’s size may require.¹⁵

In sum, residential child care providers who attempt to use this system may increase children’s risk of injury or death, as well as their own liability.

Although some providers use other systems available on the market that provide certified trainers, the Child Welfare League of America states that “physical restraint techniques, including the positions, holds and the number of staff involved, vary widely as do the points of view on the safety of particular strategies.”¹⁶

In Texas, policies even differ between agencies. For example, TDMHMR policies allow a maximum of 15 minutes for a personal restraint, but DPRS standards allow a maximum of 30 minutes for a child under 9 and one hour for other children.¹⁷

Medically Fragile Children

Of the 44 children who died in fiscal 2002, 18 had medical conditions or complications, including the SIDS death. The Comptroller’s review of the files of 28 of the children who died in fiscal 2002 found that two of them were medically fragile yet placed in foster homes located in rural areas where medical care may be more difficult to obtain.¹⁸

In one case, a foster mother in a rural area drove a child with a high fever to a doctor and then to a local hospital, which called an ambulance that then took an hour to find a hospital that could meet the child’s needs. The child died soon after arrival. In another case, a child had to be taken by ambulance from West Texas to Lubbock for treatment.¹⁹

Response to Preventable Deaths

DPRS’ response to children’s deaths related to preventable causes, such as physical restraint or a lack of supervision, has varied. DPRS rarely revokes a facility’s license for a child’s death, but may start the process by placing a facility on probation.

For example, DPRS placed one facility on probation in May 2002, after a coroner ruled a February 2002 restraint-related death a homicide. DPRS lifts probation when a facility makes changes to comply with its standards; in the 2002 case, the facility changed its behavior management and restraint system, made training and supervisory improvements and was released from probation in January 2003.²⁰

At times, however, DPRS takes no action at all against facilities where children have died under questionable circumstances.

For instance, DPRS took no action against a residential treatment center when a boy prone to self-mutilation managed to run away and burn himself to death at a nearby gas station. The incident occurred even though the facility supposedly had the child under close watch, since he ran away three days before the incident. Employees at the facility knew the child was gone for an hour before he set himself on fire. The facility’s policy was to wait two hours before notifying anyone that a child had run away. DPRS ruled out neglectful supervision in this case and did not find any licensing violations because the facility followed its approved policies.²¹

Inadequate Investigations, Files

Most of the files on child deaths in 2002 lacked adequate documentation on the cause of death, contributing factors, culpability, the basis for investigators’ decisions, the reason for the case closure or any recommendations that might prevent such deaths in the future. The only document common to all files reviewed was the intake form from the phone center concerning the incident. Most files included the DPRS child death report forms and licensing investigation reports, but some did not contain even these items.

Most of the files did not provide any evidence of referrals to child death committees; medical examiner reports and autopsies; hospital, doctor and ambulance records; police reports; or related photographs or tape recordings. Most files did not record the child’s facility admissions, treatment and service plans, including medications; the foster home placement history; the foster home and facility history of licensing violations; the background on any prior allegations of abuse or neglect by the caregiver; or logs and progress notes concerning the child.²²

The DPRS Web site, annual report and data book have no information on child deaths in foster care. Although DPRS’ reports on total deaths of children in its conservatorship as a performance measure, the agency provides no other public information about the deaths, such as cause of death or whether abuse or neglect for a caregiver was involved.

Concerning the restraint that precipitated one child’s death, the DPRS public Web site for licensing violations explains that “the use of force during a restraint of resident at [facility] was not reasonable and did not minimize risk of physical discomfort, harm or pain,” and says “excessive force was used during a restraint.” The Web site fails to mention that the child died after the restraint.²³

Recommendations

A. DPRS should identify behavior management systems that incorporate safe personal restraints appropriate for use with children and require that contractors use only approved systems.

DPRS should consult with experts and other agencies to identify the systems and should ensure that licensed facilities use trainers certified to teach the systems that facilities select. DPRS should adopt licensing standards that reflect the selected systems.

DPRS should ban the use of Prevention and Management of Aggressive Behavior (PMAB®) materials at facilities not operated by the Texas Department of Mental Health and Mental Retardation. Other commercial systems exist that providers can purchase.

B. DPRS should thoroughly investigate each foster child death, refer every foster child death case to the state risk director and internal and external child-death review committees, and should place the results of the reviews in the child’s death investigation file.

DPRS should maintain all child death investigation files at both the state and regional levels.

C. DPRS should standardize the forms, information and documentation required in child death files.

To allow reviewers the opportunity to recommend policies and procedures that could prevent child deaths, files must be complete.

The files should include all forms and information related to the case, including the agency’s child death report forms; intake and licensing investigation reports; referrals to child death committees; medical examiner reports and autopsies; hospital, doctor and ambulance records; police reports; and related photographs or tape recordings.

The files also should contain each child’s facility admissions, treatment and service plans, including medications; the foster home placement history; the foster home and provider history of licensing violations; the background on any prior allegations of abuse or neglect by the caregiver; and any logs and progress notes concerning the child.

Fiscal Impact

These recommendations could be implemented with existing agency resources.

Endnotes
¹U.S. Department of Health and Human Services, “Child Maltreatment 2001, Table 5-2: Child Fatalities in Foster Care, 2001,” http://www.acf.hhs.gov/programs/cb/publications/cm01/table5_2.htm. (Last visited February 6, 2004.)
²Interview with Texas Department of Protective and Regulatory Services staff, January 13, 2004.
³Texas Department of Protective and Regulatory Services, Operating Budget for Fiscal 2004 (Austin, Texas, December 1, 2003), p. III.A.3.
⁴U.S. Department of Health and Human Services, National SIDS/Infant Death Resource Center, “What is SIDS?” http://www.sidscenter.org/SIDSFACT.HTM. (Last visited January 3, 2004.)
⁵National Clearinghouse on Child Abuse and Neglect Information, “Child Abuse and Neglect Fatalities: Statistics and Interventions,” (Washington, D.C., August 2003), p. 1.
⁶Data provided by Texas Department of Protective and Regulatory Services, December 10, 2003.
⁷Eric M. Weiss, “Hundreds of the Nation’s Most Vulnerable Have Been Killed by the System Intended to Care for Them,” Hartford Courant (October 11, 1998).
⁸Eric M. Weiss, “Hundreds of the Nation’s Most Vulnerable Have Been Killed by the System Intended to Care for Them,” Hartford Courant (October 11, 1998) and Jonathan Osborne and Mike Ward, “When Discipline Turns Fatal: Texas Lacks Tough Law on Prone Restraint that’s Banned in Three States,” Austin American-Statesman (May 18, 2003).
⁹Data provided by Texas Department of Protective and Regulatory Services, December 10, 2003.
¹⁰Texas Department of Protective and Regulatory Services, “Consolidated Minimum Standards for Facilities Providing 24-Hour Child Care,” (Austin, Texas, January 2004), available in pdf format from http://www.tdprs.state.tx.us/Child_Care/pdf/MS-24H-January-2004.pdf. (Last visited January 5, 2004.)
¹¹Texas Department of Protective and Regulatory Services, “Personal Restraint Violations as a Result of a Residential Care Abuse/Neglect Investigation for Fiscal Year 2003,” Austin, Texas, January 21, 2004. (Excel spreadsheet.)
¹²Texas Department of Mental Health and Mental Retardation, “Prevention and Management of Aggressive Behavior (PMAB®),” http://www.mhmr.state.tx.us/centraloffice/humanresourcesdevelopment/shrdpmaboverview.html. (Last visited December 17, 2003.)
¹³Texas Department of Mental Health and Mental Retardation, “Prevention and Management of Aggressive Behavior (PMAB®),” http://www.mhmr.state.tx.us/centraloffice/humanresourcesdevelopment/shrdpmaboverview.html; and Texas Department of Mental Health and Mental Retardation, “PMAB® Purchasers” (internal document).
¹⁴Interview with Texas Department of Mental Health and Mental Retardation staff, December 12, 2003 and Texas Department of Mental Health and Mental Retardation, “Prevention and Management of Aggressive Behavior (PMAB®).”
¹⁵Interview with Texas Department of Mental Health and Mental Retardation staff, December 12, 2003.
¹⁶Child Welfare League of America, “Fact Sheet: Behavioral Management and Children in Residential Care,” http://www.cwla.org/advocacy/secresfactsheet.htm. (Last visited January 3, 2004.)
¹⁷Texas Department of Protective and Regulatory Services, Consolidated Minimum Standards for Facilities Providing 24-Hour Child Care, (http://www.tdprs.state.tx.us/Child_Care/Child_Care_Standards_and_Regulations/default.asp) and 25 Tex. Admin. Code §415.263.
¹⁸Data provided by Texas Department of Protective and Regulatory Services, 2002.
¹⁹Data provided by Texas Department of Protective and Regulatory Services, 2002.
²⁰Data provided by Texas Department of Protective and Regulatory Services and residential treatment facility, January 20, 2004.
²¹Data provided by Texas Department of Protective and Regulatory Services, 2002.
²²Data provided by Texas Department of Protective and Regulatory Services, 2002.
²³Texas Department of Protective and Regulatory Services, “Search for a Residential Child Care Operation,” http://www.txchildcaresearch.org/ppFacilitySearchResidential.asp#Operation. (Last visited January 5, 2004.)