April 4, 2008 in City

Toddler’s killing leads to updated caregiver policies

Meghann M. Cuniff Staff writer

Devon Miller never should have been allowed to live with the man now in prison for killing him.

But misunderstood policies and miscommunication between the Washington state Department of Social and Health Services and the Yakama confederation of tribes sent 20-month-old Devon to live with two relatives who should have been disqualified as caregivers, according to a state fatality review of the boy’s death.

Devon, a member of the Yakama Nation, was born prematurely in November 2004 with cocaine in his system. He spent the first year of his life in foster care. When a relative asked if she and her husband could take him in, a state social services worker conducted a criminal background check that showed both had criminal histories that should have disqualified the couple from caring for the boy, according to the state’s review.

But that didn’t prevent the agreement between the state and the Yakama Nation Tribal Court that put Devon in the Spokane home of Angelique and Avery E. Sam, the boy’s great-aunt and great-uncle, in February 2006.

Six months later, Devon was dead.

Avery Sam, 38, was sentenced last month to 24 1/2 years in prison for Devon’s second-degree murder. A doctor ruled the boy died of a “fantastically huge” subdural hematoma of the brain – swelling from internal bleeding – that prevented blood from reaching his brain.

As a result, DSHS and the Yakama Nation examined their internal policies to see what went wrong and how the mistakes could be prevented in the future.

“This was terribly tragic,” said Kenneth Nichols, the DSHS Region II coordinator.

Avery Sam declined an interview request. Angelique Sam couldn’t be reached for comment.

Devon Miller was, according to experts, among a disproportionate number of Native Americans in the child welfare system. Though Native Americans make up 1.7 percent of Washington’s population, they represent 11.9 percent of children in out-of-home placement; 14.5 percent of unexpected deaths among children who have had contact with the Children’s Administration within a year; and 9 percent of complaints to the ombudsman’s office, according to previously published data from the National Indian Welfare System.

Those children are often placed in homes devoid of Native culture and heritage, prompting measures such as the 1978 Indian Child Welfare Act, aimed at keeping Indian children with their families.

Miscommunication between the Yakama Nation and DSHS as well as pressure from the tribes to place Devon marred the process, Nichols said. Experts say such pressure can often be driven by a desire to keep children connected to Native cultures.

“It was the tribal sovereignty, everybody wanting the family to get together as quickly as possible and have those family bonds recaptured,” Nichols said.

Nearly a year and a half after the state issued its review of Devon’s death, most of of the recommended changes have been implemented. The fatality review concluded that the examination of the Sams’ home prior to Devon’s placement was “hurried and incomplete.” Since then, the state has reviewed 95 percent of the 317 current cases in Region II – Kittitas, Yakima, Benton, Franklin, Walla Walla and Columbia counties – in which the court placed a child with a relative rather than in foster care.

Each case was audited with criminal convictions rechecked and home visits redone. The result?

“We actually did move some kids,” Nichols said. “Legislatively, we need to place with relatives if that’s an option, but we also need to make sure it’s a safe and stable placement.”

DSHS didn’t reprimand any employees involved in Devon’s placement, said Nichols, who attributes the problems with the boy’s case to “misunderstanding” and “miscommunication” about department and tribal policies.

Officials rewrote polices to clearly indicate which crimes disqualify someone from caring for a child and for what amount of time. That is what confused employees who knew of Avery Sam’s conviction for Theft 2, Nichols said: They weren’t sure which crimes were disqualifiers and which were not.

Theft 2 should disqualify someone from caring for a child for five years, according to the fatality review.

“The error was the worker not telling the tribal court judge that the crimes … should have precluded them,” Nichols said.

Also, because of federal legislation passed in 2006, state workers now have access to a national crime database that would have revealed Avery Sam’s 1991 conviction for reckless driving in Nevada.

“Although the Reckless Driving charge would not have precluded placement of the child with the Sams, it is concerning that the complete criminal history was not available to the social worker at the time of the placement hearing,” the review stated.

Additionally, state employees now meet annually in small groups to discuss the policies. Such meetings could have alerted department heads to the confusion surrounding the background check policy that contributed to Devon’s placement, Nichols said.

Since Devon’s death, no other children in Region II’s child welfare system have died of abuse, said Karen Lee, DSHS spokeswoman.

The changes haven’t all been made through DSHS. Yakama Nation representatives now meet regularly with DSHS officials and the Yakima County prosecutor’s office.

Tribal Chairman Ralph Sampson didn’t return phone calls seeking comment.

But Nichols said one of the biggest changes since Devon’s death was implemented a little more than a month ago when the Yakama Nation secured a federal grant to pay a court-appointed special advocate for children like Devon.

The fatality review concluded Devon didn’t have an advocate in the court proceedings that placed him with the Sams. State workers felt pressured by the tribes and family to agree to the boy’s placement with the Sams, Nichols said.

“I think there was a lot of pressure on everybody to move this little child up there, and eventually we did,” he said. “Because of the pressure, we overlooked some really important things.”

But problems remain. Nichols would like his employees to have a lawyer present when they appear in tribal court. Before Devon’s placement with the Sams, DSHS employees involved with the boy’s care often met with tribal representatives in tribal court to discuss his situation, but the workers had little knowledge of tribal laws.

Though the department has ramped up tribal law training, DSHS employees still do not have that legal representation in court, Nichols said. Such representation could have helped alert the court to Avery Sam’s criminal history, Nichols said.

But the addition of the national crime database, the auditing of cases similar to Devon’s and the recent hiring of a court-appointed advocate in the Yakama Nation should help prevent other children’s deaths, Nichols said. “We’d much rather avoid the fatality than have to do one of these (child death reviews),” Nichols said. “It’s pretty traumatic to go through a fatality review and think you may have done something that caused a child’s death.”

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