The existence of the report came to light earlier Tuesday in depositions given by state child-welfare officials in a lawsuit filed by the The Courier-Journal and The Herald-Leader to obtain records in fatalities and near-fatalities of children due to abuse or neglect.
The Cabinet for Health and Family Services has released documents in scores of cases under an order by Franklin Circuit Court Judge Phillip Shepherd.
The newspapers are now arguing that the cabinet redacted too much material from the files — not just confidential data such as children’s names but other information that is on public record elsewhere. The papers have requested that Shepherd order a broader release of such records.
At issue in Tuesday’s testimony was the case of Rafe Calvert, who died in February 2010 and had been born 16 weeks premature the previous October. Rafe was found lying unresponsive on an adult-sized pillow in a bassinet.
While the state Cabinet for Health and Family Services had provided a redacted report of its investigation into Rafe’s death, it did not include a separate case file — or even tell of its existence until Tuesday — into an investigation it had launched just days before his death.
Cabinet spokeswoman Jill Midkiff said it would provide a redacted copy of records into that investigation as soon as possible.
“The Cabinet has produced more than 23,000 pages of documents to both the Courier-Journal and the Lexington Herald-Leader,” she said in a statement. “The Cabinet believes that the file inadvertently, and certainly unintentionally, was not copied by the local office and therefore was not delivered to our Office of Legal Service for review and redaction.”
Jon Fleischaker, attorney for The Courier-Journal, said the omission was “still very troubling.”
“After all this time and all this expense, we haven’t gotten a complete file and we haven’t gotten an updated explanation for why this file was incomplete,” he said. “It leaves unanswered who took this stuff out of the file and why they took it out of the file.”
None of the witnesses Tuesday said they were involved in redacting the records or could explain why the records were withheld.
The investigation into Rafe’s welfare came after an insurance case manager called Feb. 19, 2010, to report suspected medical neglect because the family had missed several doctor’s appointments following up on complications from Rafe’s premature birth.
Brenda Clark, who supervises investigatory teams in Jefferson County for the cabinet’s Department for Community Based Services, testified Tuesday that the social-service worker’s visit — three days after the report —failed to come within the 48 hours required by cabinet protocol under neglect reports.
Clark — who was not involved in the 2010 investigation— said the investigator focused on helping the mother overcome transportation and other hurdles in getting to medical appointments.
Clark said the records from before Rafe’s death are relevant in investigating how he died.
Tuesday’s testimony did answer one question that had been left unanswered in previous proceedings.
Commissioner Teresa James of the cabinet’s Department for Community Based Services said she was the one who determined this summer to reclassify Rafe’s death as not being related to medical neglect.
“As commissioner of this agency, I made the final decision,” she said, citing a medical examiner’s report that found Rafe’s cause of death undetermined.
While the department confirmed there was medical neglect, James’ decision reversed its previous finding that Rafe’s death was related to that neglect. Department officials testified Tuesday that they disagreed on whether the reversal was justified.