Post and Courier
September 16, 2014

Wrongful-death suit filed against DSS, foster parent in Charleston infant's death

Posted: 06/07/2014 10:00 p.m.
Updated: 06/08/2014 08:57 a.m.


By Christina Elmore

By all accounts, the birth of Aiden Dean Clark was nothing short of miraculous.

His mother, wheelchair-bound from spina bifida, had miscarried three times before Aiden was born July 7, 2011.

The hopeful beginnings of new life in the family came to an abrupt end less than two weeks later after state social workers removed him from his parents' Charleston home.

They had placed Aiden with a foster mother after allegations of abuse surfaced against his father shortly after the baby's birth. Aiden died 15 days later.

Aiden's parents stood by the then-brain dead infant at Medical University Hospital as doctors turned off the machines keeping him alive. His father held Aiden's tiny foot as the baby took his final breaths.

Ellen Babb, an attorney for the family, said this didn't have to happen. A wrongful death lawsuit she filed last week in Charleston County alleges Aiden essentially suffocated after the foster mother left him alone in a sweater box instead of a crib.

The suit is the latest in a string of setbacks for the beleaguered state Department of Social Services, which has been the subject of widespread criticism regarding its practices and child deaths that have occurred on its watch.

Former DSS Director Lillian Koller and the foster mother, Jennie Downard, 71, of North Charleston, are both named as defendants in the suit. Aiden's parents weren't identified in the court documents.

Charleston County Coroner Rae Wooten said she can't say whether the baby died as a result of the foster mother's actions. A lengthy and thorough investigation conducted by her office failed to determine a manner or cause of death, she said.

"Whatever Ellen Babb alleged in her complaint is what she believes to be the case," Wooten said. "It's not necessarily based in fact."

No criminal charges were filed in the case, North Charleston police spokesman Spencer Pryor said.

"As a result of our investigation at the time, there was no evidence presented to show any intentional and harmful acts, nor was there any probable cause to lead to criminal charges in this incident," Pryor said.

DSS spokeswoman Marilyn Matheus would not speak directly to the allegations in the suit, but she defended the decision to remove Aiden from the parents' home.

A DSS investigation and subsequent court order resulted in his father being placed on the Central Registry of Child Abuse and Neglect and Aiden's placement with a well-regarded foster mother, Matheus said.

"Law enforcement conducted a full investigation into this incident and the police report described Ms. Downard as a wonderful woman and caring person, that in no way was suspected of any wrong doing," Matheus said in a statement. "As an agency, we are constantly exploring new ways to better serve the at-risk children of this state and will never stop fighting to place them with the best and most devoted foster parents possible."

Agency problems

The family's wrongful-death suit was filed in the wake of some state lawmakers' calls for a massive overhaul of DSS to ensure South Carolina's children are adequately protected.

Gov. Nikki Haley announced changes last month to the department's Richland County office after an infant in that county died in April while a DSS staffer searched for the baby's family. She's sending in back-up workers to help deal with case loads and is taking steps to improve communication between the office and law enforcement.

Similar problems have been reported in the Lowcountry and other parts of the state, but Haley has not announced any policy changes addressing issues outside of Richland County.

In an email, state Rep. Peter McCoy, R-Charleston, said that as a former prosecutor and a father of three children, he's been "extremely concerned" with the string of child deaths that have occurred under DSS supervision.

"When children are placed in their care, there has to be a series of checks and balances to ensure the safety of these children at all times. It's time for the Legislature to take a hard look at DSS and their day-to-day operations and safety checks for children," McCoy said.

"Anytime there is a fatality of a child, especially if the safety of that child has been placed in the hands of an agency like DSS, there should be absolute accountability to that agency," he said. "I'm hopeful we can get to the root of the problem at DSS and do all we can to ensure the safety of our children."

After months of rebuffing calls for her resignation, Koller stepped down from her post as the agency's chief last week, the same day the wrongful-death complaint was filed in Aiden's case.

A life cut short

Questions about possible abuse arose shortly after Aiden's birth, prompting DSS to take an interest in the baby.

The infant had been left in his father's care while doctors treated his mother for an infection that had developed following a Caesarean section. The father checked into Trident Medical Center days later, on July 20, after a neighbor advised that he should be evaluated for possible mental health issues, a North Charleston police report said.

Hospital staff who examined Aiden during his father's visit called authorities to report signs of what was thought to be malnutrition, sepsis, pinkeye and bruising to his abdomen and knee, Babb said.

The baby was transported to Medical University Hospital for a more thorough exam.

That hospital's staff could not immediately tell whether a pair of bruises to the child were signs of an assault or if they were caused by something else, a police report said.

Babb said Aiden was deemed to be in good health but he was placed with a foster mother anyway.

"He was not malnourished and no signs of sepsis were found. He didn't have pinkeye, his tear ducts were just clogged," Babb said. "He was a healthy child when he left that hospital and was released to the foster mother."

Aiden was placed with Downard on Aug. 2 and died roughly two weeks later. Downard could not be reached for comment.

'Another tragic tale'

While in the foster parent's North Charleston home, Babb said, Aiden was left unattended in a sweater box that was filled with towels and blankets. He rolled onto his side on Aug. 14, 2011, and fought in vain against cloth and plastic as he gasped for air, she said.

By the time Downard returned, the baby was unresponsive.

Downard did not have CPR training and was unable to provide the care that Aiden needed to save his life, the complaint alleges. He lingered on life support for three days before he died.

A crib in Downard's home had been filled with boxes during Aiden's stay. According to Babb, Downard reported during a deposition that social workers were aware that she kept the child in a sweater box perched atop a stool instead of the crib.

At least three social workers had visited the home, Babb said, yet no one intervened.

"The first time you go into a home as a caseworker and you see a child is kept in a sweater box, you should alert someone," Babb said.

"It's a broken agency, and to be honest with you, it was broken long before Lillian Koller took over. She just made things worse," Babb said. "Caseworkers have too many cases and people aren't following up with what those caseworkers are doing."

A Post and Courier story last month revealed that nearly a third of DSS workers were shouldering larger than recommended case loads for the month of May, according to internal preliminary reports.

In Charleston County, 39 percent of the office's 33 workers had 20 cases or more, while 60 percent of workers had to see 21 children or more in a month.

The numbers differed from a reported statewide case load average of six per worker, a number frequently repeated by agency leaders.

Matheus said the department's caseworkers saw nothing in Downard's home that was cause for alarm. The sweater box that Aiden slept in, Matheus said, was a makeshift bassinet.

"If you go into any hospital or NICU (neonatal intensive care unit), you would see similar situations where newborns are kept in an open container," Matheus said. "That wouldn't be an immediate cause for concern."

A history of service

Matheus said DSS caseworkers are trained to look for all safety concerns in addition to noting a child's condition during their visits. DSS is "dedicated to protecting South Carolina children" in partnership with foster parents and group homes that provide care when others cannot, she said.

Downard said during a deposition that she had served as a foster parent for more than three decades and cared for more than 100 infants, Babb said. She reported watching over at least five other children in the wake of Aiden's death.

Wooten, the coroner, said Downard had "a great track record," considering the number of infant children the woman had cared for over the years. "A lot of foster parents don't take children that young."

Reach Christina Elmore at 937-5908 or at Twitter.com/celmorePC.