Welcome move to boost child protection in Kentucky trips over conflicting views of the law

Michelle Tynes, of Hickory, in Graves County with her grandson, Ashton. (Photo provided).

Increasingly worried about suspected abuse of her young grandson, Michelle Tynes said she battled for years with Kentucky social service workers to act on what she said was the deplorable situation in the Western Kentucky home where he and four other children lived.

“I made multiple reports,” said Tynes, who eventually won full custody of her grandson in 2019 after a lengthy court battle. “I reported and reported. They would do nothing.”

So Tynes, who lives in Graves County, turned to the ombudsman within the Cabinet for Health and Family Services — an office supposed to investigate and resolve complaints about cabinet agencies including child welfare services.

“I made multiple reports to the ombudsman’s office about them not doing anything,” Tynes said.

The result?

“Nothing. I never did get a call back,” she said. “Nothing.”

Tynes, based on her experience, said she’s glad that the Kentucky General Assembly enacted a law to move the ombudsman’s office from inside the cabinet to the office of the state Auditor of Public Accounts, effective July 1.

The move was meant to provide outside oversight and end “the practice of the cabinet investigating itself,” said Sen. Stephen Meredith, R-Leitchfield, the sponsor of the 2023 bill to make the change.

But nearly a month after state Auditor Allison Ball’s office was supposed to launch the new ombudsman’s office, the Republican auditor is at an impasse with the administration of Gov. Andy Beshear, a Democrat, over access to a central computer system known as TWIST the cabinet uses to house confidential records of child abuse and neglect cases.

TWIST (short for The Workers Information System) contains reports of suspected child abuse or neglect, records of investigations and findings, and extensive and often sensitive information about families’ histories, medical records, mental health, substance use and criminal histories. It also contains similar details of cases involving suspected abuse or exploitation of vulnerable or elderly adults.

Access to TWIST is strictly limited by state law to cabinet social service officials  under Kentucky Revised Statute 620.050 , with some exceptions for certain parties within the cabinet, law enforcement and prosecutors, outside medical or social service officials and the parent or guardian of the child in question.

The state auditor’s office is not among those parties allowed access to TWIST under current statute, Beshear’s administration said.

“The cabinet supports the auditor’s office desire to have full access to the system, but current statutes passed by the General Assembly prohibit it,” a cabinet spokeswoman told the Lantern in a statement.

Auditor’s ‘demand letter’

On July 9, Ball fired off a “demand letter” to Eric Friedlander, secretary of the Cabinet for Health and Family Services, insisting that the law does allow her newly-established ombudsman’s office access to TWIST.

Ball’s letter cites a section of Senate Bill 48, the 2023 law moving the ombudsman to her office that requires that all “staff, personnel, files, equipment, resources, funding and administrative resources” be transferred to the auditor.

Lawmakers who approved the legislation “unequivocally expressed that their intention was to provide the ombudsman with full, direct and real-time access to iTwist,” Ball’s letter said.

But what SB 48 does not do is amend the separate law that governs the confidentiality of TWIST, KRS 620.050.

One example of how that was done was in 2013, when the legislature approved a law to create an independent panel to review all cases of deaths or serious injuries from child abuse and neglect.

The enabling legislation, House Bill 290, amended the law governing access to the TWIST system specifically to include members of the External Child Fatality and Near Fatality Review Panel.

First Amendment lawyer Michael Abate, who is familiar with the TWIST statute, said that while it allows access to confidential records by some agencies, the language does not appear to include the state auditor.

“It might make sense to allow the auditor to have access to those records if they want to fill the ombudsman’s role,” he said.

But the bill moving the ombudsman to the auditor doesn’t change the language of the statute restricting access to TWIST.

“That seems like a real oversight in drafting the bill,” he said.

In comments to reporters on July 11, Beshear said the law needs to be changed if the auditor wants access to TWIST, suggesting such changes could be made when the General Assembly next meets in January.

“I’m sure the General Assembly intended for the ombudsman to be able to do what they need to do and I support them having the access, but we have a written statute that is on the books that says we can’t provide certain access,” Beshear said.

Ball has not received a reply to the demand letter, a spokeswoman for Ball, Joy Pidgorodetska Markland, said Tuesday. Markland said Ball is scheduled to update lawmakers on the situation July 30 at the interim joint Committee on Families and Children.

TWIST records ‘mind-blowing’

Meanwhile, Tynes, the Graves County grandmother, said she doesn’t see how the new ombudsman’s office can investigate any complaints about child abuse or neglect without access to TWIST.

She was able to obtain the TWIST file for her grandson and other children in the  home as part of her court fight to get custody of her grandson, which she won in 2019.

Tynes said the file was voluminous.

“I have nine years’ worth of TWIST reports,” she said. “I still have it in a storage box and it’s not a little box.”

When she was able to obtain the file, through the legal case she pursued in family court, she was shocked at the multiple reports of child abuse or neglect not only from herself but from school and day care workers, medical providers and others.

“It was mind-blowing,” she said. “It was just astounding, the amount of evidence.”

Tynes said she believes that, had an outside ombudsman been able to get a look at the case, it would have taken far less time than the nine years and prolonged legal battle it took for her to get custody of her grandson and have the other children removed from the home.

“They (the cabinet ombudsman) never did do anything about it,” she said.

Among supporters of moving the ombudsman outside the cabinet was Kentucky Youth Advocates, which said it would “create an independent place for people to contact with concerns and reduce potential conflicts of interest.”

A ‘deep, dark hole’

Norma Hatfield, a longtime advocate for “kinship care” relatives — grandparents or other family members who take in children in cases of abuse or neglect — said she too believes the state needs an outside ombudsman to investigate complaints.

Hatfield said she has worked with multiple relatives, including Tynes, to file complaints with the cabinet’s ombudsman.

Often, she or the families never get a response — let alone results.

“I would send something in and it would be like some deep, dark hole,” she said. “You never even get any confirmation.”

As for access to TWIST, Hatfield said that is vital to any meaningful investigation about complaints of how the cabinet handles abuse or neglect cases of children or vulnerable adults.

“They have to have access to that information,” Hatfield said. “If they can’t get access to the files they need, they’re not going to be able do an investigation.”

Hatfield said she can’t speak to the dispute between the cabinet and the auditor over the law governing access to TWIST but said the parties need to get it resolved.

“It has to change, it really does,” she said. “Hopefully, it’s about doing the right thing regardless of political issues and organizational charts.”

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