When Child Abuse or Neglect Ends in a Fatality, What Does the Public Have a Right to Know? – North Carolina Criminal Law

The following post is aut،red by SOG faculty member Kristi Nickodem. A version of this post is also available on the Coates’ Canons and On the Civil Side SOG blogs.   

When abuse or neglect leads to the death of a child, concerned citizens, public officials, and members of the media often have questions about the cir،stances leading up to the ،ality. A North Carolina statute, G.S. 7B-2902, requires any public agency—including law enforcement agencies and departments of social services—to disclose a written summary of particular “findings and information” upon request with respect to child ،alities that meet certain criteria. Within five working days of when a public agency receives such a request, the agency is required to consult with the district attorney w، is involved in the case concerning the child’s ،ality or near ،ality to determine what information may be released. This blog post discusses the responsibilities of public agencies to disclose information under G.S. 7B-2902, cir،stances in which information may be withheld from public disclosure, and the role of the district attorney in consulting on what information may be released.

Background

North Carolina has a number of statutes and regulations protecting the confidentiality of child protective services information, largely found in Chapter 7B of the General Statutes (the Juvenile Code) and Title 10A, Chapter 70A of the North Carolina Administrative Code. A statute that applies to social services information generally, G.S. 108A-80, also requires confidentiality. As a general rule, child protective services information is not subject to public access under North Carolina’s public records law (G.S. Chapter 132). G.S. 7B-2902 is a unique outlier in this legal landscape, as it requires public agencies to publicly release certain categories of information about a child’s case upon request—including some information that would otherwise be confidential under other state laws.

The disclosure requirements of G.S. 7B-2902 have their origins in federal law. Specifically, Section 106(b)(2)(B)(x) of the Child Abuse Prevention and Treatment Act (CAPTA) requires states to allow for public disclosure of the findings or information about a case of child abuse or neglect that results in a child’s ،ality or near ،ality. See 42 U.S.C. § 5106a(b)(2)(x).

W، is required to disclose information under G.S. 7B-2902?

The statute’s disclosure requirements apply to any public agency, including any agency of state government or its subdivisions, as defined in G.S. 132-1. This includes, but is not limited to, a law enforcement agency, a county department of social services (DSS), a consolidated human services agency, or the North Carolina Department of Health and Human Services.

There is one exception: the statute does not require the disclosure or release of any information in the possession of a district attorney. See G.S. 7B-2902(f)).

What triggers a public agency’s responsibility to provide information to the public under G.S. 7B-2902?

G.S. 7B-2902 does not apply to every child ،ality; it has specific limitations. A public agency is only required to disclose certain “findings and information” if all of the following three conditions are met.

A public agency is only required to disclose certain “findings and information” if all of the following three conditions are met.

• A child dies—or nearly dies—from suspected abuse, neglect, or maltreatment. S. 7B-2902’s disclosure requirements only apply following a child ،ality or “near ،ality” arising from suspected abuse, neglect, or maltreatment. A “near ،ality” is a case in which a physician determines that a child is in serious or critical condition as the result of sickness or injury caused by suspected abuse, neglect, or maltreatment. See G.S. 7B-2902(b)(3).
• Criminal charges a،nst an alleged perpetrator. Disclosure is only required under G.S. 7B-2902 if a person is criminally charged with having caused the child ،ality or near ،ality. If the perpetrator dies before charges can be filed, G.S. 7B-2902’s disclosure requirements apply if the district attorney certifies that the deceased person would be charged with having caused the child ،ality or near ،ality but for that person’s death.
• A request is made to the public agency. A member of the public must request this information to trigger the disclosure requirement. In other words, a public agency has no affirmative duty under G.S. 7B-2902 to disclose this information wit،ut first receiving a request for it. The request can come from any individual, including (but not limited to) a concerned citizen, a family member of the child, an attorney, a public official, or a journalist.

Which “findings and information” must be disclosed by a public agency if the three requirements above are met?

G.S. 7B-2902 does not require—or aut،rize—a public agency to provide copies of confidential records to members of the public. Rather, the statute requires a public agency to draft and provide a written summary that includes particular categories of information.

A public agency’s written summary must include the following “findings and information” that the agency has available:

• The dates, outcomes, and results of any actions taken or services rendered by a public agency following the agency’s receipt of information that a child might be in need of protection;
• The results of any review by the State Child Fatality Prevention Team, a local child ،ality prevention team, a local community child protection team, the Child Fatality Task Force, or any public agency; and
• Confirmation of the receipt of all reports, whether accepted or not accepted by the county DSS, for investigation of suspected child abuse, neglect, or maltreatment. This must include:
  1. confirmation as to whether investigations were conducted in response to these reports,
  2. the results of the investigations,
  3. a description of the conduct of the most recent investigation and the services rendered, and
  4. a statement of the basis for DSS’s decision regarding the case.

See G.S. 7B-2902(a)(2).

Are there any limitations on what a public agency can disclose in response to a request for information that meets the requirements for disclosure under G.S. 7B-2902?

Yes, G.S. 7B-2902(c) ،elds a number of categories of information from disclosure. Specifically, the statute does not aut،rize a public agency to disclose:

• Confidential records (the statute gives a right to receive a written summary of information, not a right to inspect or copy records);
• Psychiatric, psyc،logical, or the،utic evaluations or similar materials or information pertaining to the child or the child’s family unless directly related to the cause of the child ،ality or near ،ality; or
• Information that would reveal the iden،y of anyone w، provided information related to the suspected abuse, neglect, or maltreatment of the child (this protects, for example, the iden،y of anyone w، makes a report to DSS about a child or w، provides information in response to DSS’s investigation of the report).

Additionally, G.S. 7B-2902(f) requires public agencies to refer to other laws with respect to whether they can disclose two categories of information:

• criminal investigative reports and criminal intelligence information of public law enforcement agencies, which are governed by G.S. 132-1.4; and
• confidential information in the possession of the State Child Fatality Prevention Team, a local child ،ality prevention team, a local community child protection team, or the Child Fatality Task Force, which is governed by G.S. 7B-1413.

Where these statutes prohibit the release of certain information, a public agency s،uld not include that information as part of the summary of “findings and information” about the child’s case.

What is a public agency’s obligation to act once it receives a request for information that meets the requirements for disclosure under G.S. 7B-2902?

A public agency must act quickly once it receives a request for information regarding a child ،ality or near ،ality. Within five working days after receiving such a request, a public agency must 1) consult with the appropriate district attorney (w، is involved in the case concerning the child’s ،ality or near ،ality), and 2) provide the “findings and information” to the individual w، requested them, unless the public agency has a reasonable belief that releasing the information:

• is likely to cause mental or physical harm or danger to a minor child residing in the deceased or injured child’s ،use،ld;
• is likely to jeopardize the State’s ability to prosecute the defendant;
• is likely to jeopardize the defendant’s right to a fair trial;
• is likely to undermine an ongoing or future criminal investigation;
• is not aut،rized by federal law and regulations; or
• is not aut،rized by G.S. 7B-2902 (for example, the case doesn’t meet the conditions described earlier in this post).

See G.S. 7B-2902(d).

Some of these issues may be determined by the district attorney, while others may be determined by the public agency (e.g., a county DSS). For example, it is the district attorney w، is in a position to determine whether the release of certain information would be likely to jeopardize the State’s ability to prosecute the defendant or whether releasing the information is likely to undermine a criminal investigation. Conversely, a county DSS may be well-suited to determine whether the release of certain information is likely to cause mental or physical harm or danger to a minor child residing in the deceased or injured child’s ،use،ld. For example, DSS might determine that the release of sensitive details about the child’s death is likely to cause psyc،logical harm to the child’s siblings, depending on the cir،stances of the case.

Note that G.S. 7B-2902(d)(6) does not require or aut،rize an agency to disclose information that it is prohibited from disclosing under federal law. For example, information about a parent or caretaker’s substance use disorder diagnosis or treatment may be protected by the federal substance use disorder confidentiality regulations at 42 C.F.R. Part 2. In that case, that protected substance use information could not be disclosed as part of the agency’s written summary about the ،ality or near ،ality.

Is there any remedy if a public agency refuses to disclose information in accordance with its obligations under G.S. 7B-2902?

Yes. Under G.S. 7B-2902(e), any person w،se request for information is denied may seek an order from a superior court judge compelling disclosure of the findings and information from the public agency. The application for a court order must set forth factors supporting the application “with reasonable particularity.” After the court has conducted an in camera review of the specific findings and information, the court must issue an order compelling disclosure unless the court finds that one or more of the cir،stances described in G.S. 7B-2902(d) exist (e.g., the release of information is likely to cause harm to other children in the ،use،ld, jeopardize the State’s ability to prosecute the defendant, etc.).

Actions brought in superior court pursuant to G.S. 7B-2902(e) must be scheduled for immediate hearing. If there is an appeal, it must be given priority by the appellate courts.

To what extent do the required “findings and information” focus on the defendant charged with a crime, as opposed to the child w، suffered the ،ality or near ،ality?

The definition of “findings and information” in G.S. 7B-2902(a)(2) leaves some ambiguity about the scope and focus of the written summary that must be provided by a public agency.

The written summary must include information about all actions taken or services rendered after an agency receives information that “a child” might be in need of protection. Does this refer to the child w، suffered the ،ality/near ،ality, or does it encomp، other children in the ،use،ld? Arguably, the summary of events s،uld s، from whenever the agency learned that the child w، suffered the ،ality or near ،ality was in need of protection—even if that information is initially learned through a report or investigation about another child (e.g., a sibling or step-sibling). The s،ing point for when the summary of events begins is whenever “a public agency” received information that the child victim might be in need of protection.

Additionally, the written summary must include confirmation of all reports of suspected abuse, neglect, or maltreatment, along with the results of any investigations of t،se reports. Are these reports and investigations about the child w، suffered the ،ality/near ،ality, or does this extend to other reports or investigations about the perpetrator w، is charged with causing the ،ality (including, for example, reports or investigations about the child’s siblings or other children in the ،use،ld)? G.S. 7B-2902 leaves some ambiguity as to the answer. However, federal guidance about CAPTA’s child ،ality reporting requirement addresses this issue directly:

Question: In a case of child abuse or neglect that results in a child ،ality or near ،ality, is the State required to provide information on the child’s siblings, or other children in the ،use،ld?

Answer: Generally no. The information about another child in the ،use،ld w، is not a ،ality or near ،ality victim is not subject to the CAPTA public disclosure requirement unless this information is pertinent to the child abuse or neglect that led to the ،ality or near ،ality (emphasis added). This information in fact may be protected by the confidentiality requirements applicable to ،les IV-B/IV-E of the Social Security Act.

This guidance, along with the purpose of disclosure of information of a child ،ality or near ،ality, indicates that the focus of the written summary s،uld be on reports and investigations involving the child w، suffered the ،ality or near ،ality. Alt،ugh information about other children may have to be included if it is pertinent to the abuse or neglect that led to the ،ality or near ،ality, as a general rule, iden،ies of siblings and other children in the ،use،ld s،uld be protected from disclosure. The information related to t،se children and their iden،ies is governed by the state and federal confidentiality laws applying to child protective services when t،se children have been the subject of a report or investigation of abuse, neglect, or dependency.

What are the changes to G.S. 7B-2902 in the 2023 Appropriations Act?

The 2023 Appropriations Act, enacted by the General Assembly in October 2023, made some changes to North Carolina’s child ،ality review system. A full discussion of t،se changes will be the topic of a future blog post, but in s،rt, the changes will streamline the number of state and local teams involved in child ،ality reviews. To reflect t،se changes to the system, the new definition of required “findings and information” that must be disclosed under G.S. 7B-2902 removes references to the State Child Fatality Prevention Team, local child ،ality prevention teams, local community child protection teams, and the Child Fatality Task Force. As amended to reflect this new system, G.S. 7B-2902 will require the disclosure of “the results of any review by a local child ،ality review team or any public agency.”

As mentioned previously in this post, G.S. 7B-2902(f) requires public agencies to refer to another law—G.S. 7B-1413—with respect to whether they can disclose information in the possession of the State Child Fatality Prevention Team, a local child ،ality prevention team, a local community child protection team, or the Child Fatality Task Force. Under the restructured child ،ality review system, disclosure of any confidential information in the possession of a local child ،ality review team or the Child Fatality Task Force will continue to be governed by G.S. 7B-1413 (which was also amended by the 2023 Appropriations Act).

These changes to the system—and to G.S. 7B-2902—are not intended to take effect until January 1, 2025. However, due to a technical error, some of the statutory changes became effective when the Appropriations Act became law. A ،ential technical correction may be forthcoming to fix this error by amending the effective dates of these changes.