DCF won't release reports on Zoey Felix because she wasn't 'alleged to be in need of care'

Despite receiving several reports about Zoey Felix before she was killed, the state's child welfare agency says she was not "alleged to be in need of care" and therefore the government doesn't have to release records of those reports.

The Kansas Department for Children and Families received nine total reports about Zoey, at least five of which came before the 5-year-old girl was allegedly raped and killed by a homeless man on Oct. 2.

While the agency did previously release a summary of those reports, state law also provides for the release of the full reports when a child dies as a result of abuse or neglect. But DCF denied The Topeka Capital-Journal's request for those records.

"The Department has determined that the records you seek are not open to disclosure due to the child in question was not a child in need of care," wrote Jenalea Randall, a DCF spokesperson. "The statute requires the child at issue to be a child in need of care (or alleged to be in need of care)."

The statute, K.S.A. 38-2212(g)(1), states that "in the event that child abuse or neglect results in a child fatality or near fatality, reports or records of a child alleged or adjudicated to be in need of care received by the secretary, a law enforcement agency or any juvenile intake and assessment worker shall become a public record and subject to disclosure."

What does 'alleged' mean when it comes to a child in need of care?

At issue are the legal definition of "alleged" and "child in need of care."

While neighbors have said they tried to get DCF to help Zoey, and DCF received multiple reports concerning her welfare before she died, the agency doesn't consider Zoey to have legally been alleged to be in need of care.

A "child in need of care" is a specific term defined in state law, referring to any of 14 situations that could apply to a minor at the time that authorities seek to put a child in state custody. But there is no such statutory definition for a child "alleged" to be in need of care.

The agency interprets it to mean the point when DCF has gone to a county or district attorney and they have filed a petition in court alleging a child is in need of care. That is how the term is used in K.S.A. 38-2233 and elsewhere.

That means that reports about Zoey aren't public records because DCF never went to the Shawnee County district attorney to pursue legal action to take custody of Zoey.

There are also examples from legislative testimony or agency policies where the agency uses "alleged" in a different way that could suggest it would apply once DCF received reports from neighbors or others alleging Zoey was being abused or neglected.

Last year, DCF used the phrase "a child alleged to be a Child In Need of Care" when testifying about the agency's legal duty to make contact with a child when investigating a report of child abuse or neglect.

It is likewise used in a similar way in the agency's policy and procedure manual on prevention and protection services. The policy on initiation of investigative interviews of child abuse or neglect states that DCF is required "to make inquiry when a child is alleged to be in need of care."

Zoey has also previously been referred to as being alleged to be in need of care.

When the Joint Committee on Child Welfare System Oversight went into executive session on Oct. 4, lawmakers said they were discussing a child death involving "a child alleged or adjudicated to be in need of care." That executive session came a few hours after DCF secretary Laura Howard told legislators they could meet in executive session to discuss a recent Shawnee County case of a 5-year-old child who was killed.

Despite 'alleged' definition, records were unlikely to be released soon

Had DCF adopted a definition of "alleged" that meant when the agency received reports alleging Zoey needed care, the agency still likely would not have released the reports anytime soon.

That's because the law would require DCF to notify affected parties of the open records request, and then those parties or DCF could file a motion with a court to prevent the disclosure of the reports. Among the justifications for blocking the release of the records whether it would affect a pending criminal prosecution.

Mickel Wayne Cherry is charged with capital murder and could face the death penalty if convicted. His public defenders would likely have asked a court to seal the records, at least for now, as they did with the police affidavit.

In speaking to lawmakers earlier this year, Howard said requests for those broader records are unlikely to be approved by courts before the prosecution is over.

"I would say that in my tenure, I've not seen a court authorize that release while a criminal investigation or trial is ongoing," Howard said.

But because DCF determined Zoey was never "alleged" to be in need of care, the records won't be released even after the prosecution is over unless there is a change in the law or its interpretation.

DCF has backed a change to a different provision of the law, dealing with the release of the summary. Currently, DCF must release a summary of reports once the agency has made a finding that that a child died from abuse or neglect. House Bill 2628, which was expected to be signed by Gov. Laura Kelly on Friday, would allow that summary to be released once criminal charges are filed.

In Zoey's case, that would have meant releasing the summary within days of her death instead of weeks.

Jason Alatidd is a Statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jalatidd@gannett.com. Follow him on X @Jason_Alatidd.

This article originally appeared on Topeka Capital-Journal: Kansas DCF denies records request for reports in Zoey Felix's death