State continues to withhold child-abuse records

By Valarie Honeycutt Spears — vhoneycutt@herald-leader.com

Posted: 5:55am on Apr 29, 2012; Modified: 12:34pm on Apr 29, 2012

Despite promises of transparency by Gov. Steve Beshear, state officials are refusing to release child-protection records about a man who was convicted of beating his 3-month-old son prior to the mysterious deaths of his two infant daughters.

The Cabinet for Health and Family Services won’t release records about Jesse Allison, who is charged in Caldwell County, in Western Kentucky, with murder in the 2009 asphyxiation death of his 7-monthold daughter Ariel.

The Lexington Herald-Leader and The Courier-Journal of Louisville have fought the cabinet for access to such documents in Franklin Circuit Court for more than a year. A judge ordered state officials on Nov. 3 to turn over its files on dozens of children who died or nearly died from child abuse and neglect, including Ariel.

After Franklin Circuit Judge Phillip Shepherd ordered the documents released, Beshear said Nov. 29 that his administration would comply with the order and that “transparency will be the new rule” in the cabinet.

Five months later, most details of how child-protection workers interacted with Ariel and her family before her death remain secret. The only document that has been released is a two-page internal review of Ariel’s death, which Shepherd released in January after forcing the cabinet to turn it over to his office.

In March, the Herald-Leader renewed its request under the Open Records Act for other documents about Ariel and sought documents about her half-sister Erin, who was found dead in her bed of undetermined causes in 2008 when she was 22 months old.

The cabinet denied the newspaper’s request March 7. In its denial, the cabinet said records about Ariel were exempt from disclosure under the law because child-protection workers have never determined that her death was caused by abuse or neglect.

“Until the criminal charge is litigated there is no finding of abuse or neglect that would qualify it as a case which the cabinet may release,” general counsel Christina Heavrin wrote.

That claim doesn’t match the limited information available in the cabinet’s two-page internal review of Ariel’s death. The internal review says the cabinet decided to file in court a “physical-abuse petition on the father regarding this child.” That means Allison would have to answer in court to the cabinet’s allegations that he abused Ariel.

“The cabinet is splitting a hair that is not authorized by the law,” said Kif Skidmore, an attorney representing the Herald-Leader. “The decision to file a physical-abuse petition is sufficient to make the records public — there is simply no requirement of a criminal conviction.”

Kerri Richardson, a spokeswoman for Beshear, defended the cabinet’s decision to withhold additional documents about Ariel.

“The cabinet continues to comply with the directive from the governor, and they continue to release records weekly. However, in this case, a criminal case is pending in the courts, which exempts those records from release under the Open Records Act,’’ Richardson said.

Skidmore said the exemption that allows a law enforcement agency to withhold criminal investigation files does not authorize the cabinet to withhold its records in the Allison case.

“This is just another example of the cabinet choosing to adhere to a culture of secrecy rather than adopt an approach of maximum transparency,” Skidmore said.

Allison maintains Ariel’s death was an accident, that his daughter got trapped between her mattress and the crib rail. His September murder trial ended in a hung jury. He is scheduled to be retried starting May 29.

Allison’s court-appointed attorney, Jack Faust, said a judge has ruled that incidents involving other children in Allison’s family — including his 2000 neglect conviction in Virginia for beating his infant son — are inadmissible for the trial that begins in May.

Faust said Ariel’s death “was a tragic accident. We certainly put on proof at the first trial that it was an accident.”

Bounced ‘like a basketball’

Nearly a decade before Ariel’s death, Allison was telling police in Virginia how he fractured the skull and broke the ribs of his 3-month-old son.

He pleaded guilty to two counts of child neglect in 2000 and was sentenced to 10 years in prison, but the sentence was suspended and he served probation instead, according to court records in Norfolk.

In that case, a court document said Virginia social workers began visiting Allison’s home twice a week in February 2000 after physicians saw bruises on his son Matthew.

Allison denied abusing Matthew, but on Feb. 23, 2000, Allison’s now ex-wife Laura Allison found a large bump on the back of the baby’s head after she left him in Jesse Allison’s care to return a video.

In a detailed statement to Norfolk police, Allison told police he hit and punched Matthew and bounced him on the couch “like a basketball.”

“When he was in his colicky mood, I use to pick him up and squeeze his chest, turn him around and hit the back of his head, bounce him on the couch, face down, pinch his toes and his fingers,” Allison told police, according to a transcript of his statement.

A year later, there was another report of possible child abuse involving Allison.

The cabinet’s review of Ariel’s death mentioned that in 2001, Allison “was part of a physical-abuse referral where a child received a skull fracture and a possible fracture of the right femur.”

The review of Ariel’s death does not say where the alleged abuse occurred in 2001, although Faust said it was not in Kentucky. He said he did not know the identity of the child involved.

The review says the 2001 report of abuse was unsubstantiated, but a “general family case” was opened by some entity. The document provides no further details about the incident.

Cabinet officials denied the Herald-Leader access to additional records on the 2001 report of suspected child abuse, saying they were not subject to the Open Records Act.

Erin Allison

Erin Allison was Jesse Allison’s daughter with a woman who died while having a Caesarean section when Erin was born, according to The Paducah Sun.

Erin died in January 2008 at 22 months. An autopsy listed the cause of death as undetermined, according to the cabinet’s review of Ariel Allison’s death.

Jesse Allison found his daughter dead in her toddler bed, according to The Paducah Sun.

The newspaper reported that Erin’s maternal grandmother said that Erin suffered seizures related to fevers and that she had a fever the night of her death.

After Erin’s death, the cabinet initiated a risk-of-harm investigation, but it found that the family was not in need of services, according to the fatality review in Ariel’s case.

Ariel Allison

Jesse Allison found Ariel unresponsive in her crib, according to the cabinet’s review of Ariel’s death. She died Sept. 5, 2009.

“She was found hanging between the mattress and the crib rails with the back of her head against the rail with face pressed against the mattress,” the review said.

Jesse Allison fathered Ariel with his wife at the time, Marae Allison. Marae Allison was in the process of divorcing Jesse Allison when she testified against him at his September trial.

Marae Allison testified that she supported her husband in the days after Ariel’s death. She testified that he had convinced her the baby had a habit of getting stuck in her crib, Paducah TV station WPSD reported.

“I was upset, and that was just all Jesse kept talking about, so I assumed that’s what had happened,” she said, according to the television station. “Once I had time to go back and think about what happened, she couldn’t have been down that far, hadn’t been down that far.”

Two doctors who testified during the trial reached differing conclusions about how Ariel died.

Dr. Deirdre Schluckebier, who performed Ariel’s autopsy, testified that because of the crib’s construction, Ariel should have had additional injuries on her body if she became wedged in it, according to The Paducah Sun. Schluckebier ultimately changed her ruling on the cause of death from undetermined to homicide by intentional asphyxiation.

Dr. George Nichols, the state’s chief medical examiner from 1977 to 1997, testified for the defense that he reviewed autopsy and police reports and multiple photographs, and came to the conclusion Ariel died from being wedged in her crib, the newspaper reported.

In an interview Friday, Nichols said he also examined the crib, which was the subject of a Consumer Product Safety Commission investigation and was recalled by its manufacturer.

“The crib is defective,” Nichols said. “It was dangerous sleeping that caused the child’s death. Not murder.”

Caldwell Circuit Judge C.A. Woodall did not allow any testimony about the Consumer Product Safety Commission investigation or the crib recall during the trial.

Problems with the crib that resulted in the recall were “not the cause of the asphyxiation by the child in this case,” he ruled.

Room for improvement

After Ariel died, the cabinet’s review of how it handled the case said there was room to improve how it researches the backgrounds of alleged abusers.

The review determined that “more resources are needed to be available to search history on families, especially when they have been in or come from another state.”

The review also said “workers need to be made aware of accessing more information, especially how family support records could be of assistance in cases.”

State law does not require cabinet officials investigating a report of child abuse or neglect to check a family’s history. However, a cabinet policy manual requires a check of a state information system that logs abuse and neglect information on children and adults.

Cabinet spokeswoman Jill Midkiff said the Allison family’s history was researched and documented in the cabinet’s records in January 2008, when the cabinet had its first contact with the family.

Still, after a statewide review of child deaths in 2008 and 2009, Midkiff said the cabinet determined that increasing staff training on obtaining a family’s history would be beneficial.

Training was developed in 2009 and largely delivered in 2010. It emphasized the need to gather historical information from in-state and out-of-state sources about allegations of abuse and neglect and criminal history.