Blanket snatched off day care risks; Cutro probe exposed cracks in regulation
This story was originally published in The State on January 21, 1996.
Alarms that should have sounded were silent when two babies died and a third was severely injured in Gail Cutro's Irmo day care in 1993.
The case was more than a tragedy for the families of the three 4-month-old infants.
Cutro's case produced an agonizing murder trial that's still being debated. It also exposed serious flaws in the state's system for protecting children in day care.
From basic day-care regulation to child-abuse investigations, nothing worked as it should.
That includes parents who were troubled enough to take their children out of Cutro's day care, but didn't take their worries to regulators.
Eventually, Cutro was tried and sentenced to life in prison for causing brain injury so severe that Ashlan Daniel's vital systems shut down. The solicitor decided not to put the children's families through more agony and dropped charges that Cutro also killed Parker Colson and shook Asher Maier so hard he suffered brain injury.
Cutro might never have been caught had it not been for the creation about the time of Ashlan's death of a special child-death investigation squad at the State Law Enforcement Division. The squad was able to pull together information from numerous agencies that had only parts of the full picture and didn't tell one another what they knew.
From those pieces emerged a frightening picture of what Cutro did.
The picture also exposed a Department of Social Services that was so hamstrung by red tape, ill-written laws, lack of staff and training that it was incapable of doing what it was supposed to do: oversee day-care safety.
Chuck Daly, a deputy director in charge of the social services divisions involved in the case, said he would grade the agency's performance at ``no better than C work.''
The department has made significant changes, many because of the Cutro case.
However, a year after the trial, the Cutro case still offers sobering lessons about protecting children in day care.
Worry sooner, not later
It took police and regulators eight crucial months in 1993 to figure out what was going on at Cutro's day care. By that time, two children had died and a third was seriously hurt.
Later, authorities would learn the day care had been investigated for child abuse almost two years earlier on a complaint that a 7-month-old baby had been struck so hard that he had a welt on his back in the shape of a large handprint.
However, because investigators couldn't prove the abuse occurred in Cutro's day care,state privacy laws required the agency to remove any reference to Cutro from the files.
Without a paper trail, the agency could not put together any pattern of abuse when Parker Colson died on Jan. 4, 1993. If available, that information might have raised a red flag before Asher was injured from shaking six months after Parker's death.
``You don't want to throw away any information that would ever be a clue that a child is in danger,'' said Wilbert Lewis, chief of the department's child-abuse division. ``But on the other hand, you have to balance how much information a state agency should maintain on a family.''
There's not much information the state can gather on in-home day cares such as Cutro's.
They are nearly unregulated. The vast majority don't even register with the state. Those that do aren't required to have child-care or first-aid training. They don't have to submit to fire and health inspections. And their operating rules fill seven pages, compared with 31 and 32 pages, respectively, for more regulated group facilities and centers.
Time, as well as the law, helped Cutro hide her crime.
In the winter of 1993, the child-protection agency did not investigate child deaths or injuries in day care unless there was suspicion of abuse. No one complained to the department, and doctors said Parker died of sudden infant death syndrome (SIDS), which is a natural though unexplained cause of death.
By late summer of that year, the agency changed the way it did things so that at least a regulatory probe occurs when children die in day care.
Abuse caseworkers do not investigate SIDS even now, Lewis said.
SIDS is the No. 3 killer of South Carolina's infants. Only congenital problems and premature births claim more newborns, a review of health records shows.
In cases of suspected abuse, caseworkers or regulators cannot gain access without the operator's permission or a warrant.
The agency has little experience with investigating day cares because most child abuse occurs within families. During the three years between 1992-94, 421 complaints in day cares were investigated. That compares with 23,642 complaints of all sorts of child abuse just during the calendar year 1994.
On the rare occasion that caseworkers conduct abuse investigations in day cares, they can't tell anyone but the people immediately involved about it. That means parents of other children at the day care have no idea that abuse is suspected or the results of the investigation.
Privacy laws prohibit the agency from saying anything about abuse cases, said department lawyer Ginny Williamson. State and federal confidentiality provisions are so strict that violating them could jeopardize about $20 million in federal money, the agency said.
Last year for the first time, the department began placing a notice in some public files when it determines abuse has occurred in child-care centers. It won't identify the abuser because the law says that's not public information.
Even that limited disclosure doesn't apply to in-home day cares, where there's usually only one worker.
Parents ought to be told when an investigation is under way, said David Harvin, a child advocate and former senior staffer at the child-protection agency. ``Things can occur in day cares and the parents are shielded from knowing,'' he said. ``I think that's legally and morally reprehensible. My God, this is a business relationship.''
Bureaucratic bungling
When Parker died, day-care providers were not required to report deaths or injuries. But Cutro's husband reported it anyway.
That didn't trigger even a cursory investigation, a failing that showed a seriously flawed bureaucracy.
That was not the only time in the Cutro case when the agency didn't do anything with information it had.
For example, day-care regulators didn't learn of the Maier baby's injuries that were being investigated by abuse caseworkers until late September -- after Ashlan died. That poor handoff happened about the time the agency was switching the control of regulatory enforcement from county offices to state headquarters.
And the Lexington County office did not coordinate with the Richland County office during that investigation, said Johnny Gasser, the deputy 5th Circuit solicitor who prosecuted Cutro.
Though the day care was in Richland County, the Lexington office investigated Asher's brain injury because his mother, a suspect, lived in that county. That caseworker decided that Catherine Maier had hurt her own child.
After SLED's Child Fatalities Department began investigating, the Richland County office was called in and determined that Cutro was the one who violently shook the baby. Those conflicting findings have yet to be settled and are helping to keep Maier from regaining custody of her now nearly 3-year-old son.
Maier's past was checkered compared to Cutro's, who was active in her church and popular with most parents who had children in her care.
Caseworkers weren't up to this challenge, Gasser said.
``They never interviewed the doctors and the (shaken-baby) experts. And they still haven't,'' the prosecutor said. ``That's what's shocking. How can they defend that?''
The child-protection agency says its caseworkers consulted with a doctor who specializes in child abuse, but Gasser said they didn't go far enough.
``What they did not do is take the time to investigate the matter,'' Gasser said, referring to a 60-day deadline the law imposes on caseworkers to name culprits.
Lewis, director of abuse caseworkers, says the law should allow more time for day-care investigations. So many people have access to children in day cares that caseworkers need extra time to sort through witnesses and evidence.
But only the Legislature can make that change, Lewis said.
Having enough people to ensure safety is another issue for the General Assembly. There are few enforcers and so many facilities.
Eighteen full-time regulators process applications and monitor 4,000 day cares that keep 123,000 children. That's about 200 facilities per regulator, says Sherry Driggers, director of day-care supervision.
The caseload is worse for abuse investigators. About 400 caseworkers investigated nearly 24,000 complaints in 1994, Lewis said. That averages out to a daily caseload that's 50 percent heavier than professional guidelines suggest, Lewis said. In general, caseworkers handle 18 cases a day. The preferred national standard is 12, he said.
One thing the agency could do on its own but hasn't is to provide caseworkers better training in day-care investigations.
During five weeks of basic training, caseworkers spend one day on police investigative techniques, Lewis said. Certification standards were toughened last year, but no more time is allotted to evidence gathering and interviewing techniques. ``I believe our expertise is in social work,'' Lewis said.
Last month, Department of Social Services Director Jim Clark asked the Legislature to transfer most child abuse investigations to police.
Meanwhile, cross training has begun for the first time between day-care regulators and abuse caseworkers.
Coordination a challenge
Getting those two divisions together was one of the chief obstacles to stopping Cutro.
Harvin called it ``a miracle'' that five branches of the agency were able to pull together and work with police on the case. Harvin was a top aide to former DSS Director Sam Griswold during the investigation and worked on the case.
``There are enormous problems in coordinating the child protection system with the regulatory system,'' Harvin said. ``We need to . . . wire the system so it's self-starting.''
Harvin credits Child Fatalities and its chief, Lt. Patsy Habben, for making a case out of a mix of social service workers, police and medical authorities.
``There was a lot of confusion,'' Habben recalls of the first joint meeting six days after Ashlan's death. ``No one was sure who was in control of what information.''
What the prosecution determined as the case unfolded was:
No police agency investigated Parker's death.
No one from either the Lexington or Richland counties coroners' offices went to see the circumstances of the deaths for themselves. The American Academy of Pediatrics and child-death experts say thorough scene investigations are crucial in determining SIDS.
Out-of-state pathologists disagreed with SIDS findings by two local pathologists. Experts from Minnesota, Florida and England testified the babies either were shaken to death or suffocated, but did not die naturally. They also took issue with how the local autopsies were performed. That battle of experts still rages as Cutro seeks a new trial.
Few infant deaths had been prosecuted in South Carolina, so Gasser had to consult with a national district attorney's organization as well as with out-of-state prosecutors and medical experts to know how to proceed with the case.
The case also turned into on-the-job-training for Child Fatalities agents who had no real experience in child-death investigations before the Legislature created the department.
Parental involvement
Parents bear some of the blame for problems in the day-care industry, critics say.
``Parents have to be involved,'' Harvin said. ``The public has got to be aware and has to be concerned about what's going on in child day care.''
The Colsons are concerned and thought they were aware, but they did not know until after the trial that the state cannot investigate in-home day cares unless someone files a complaint. No one did.
Too many parents choose a facility for the wrong reasons: if the price is right and there's an opening. That's not good enough, warn day-care operators and state regulators.
But it's so difficult to find a good day care that many parents hesitate to move their children even when they're unhappy. Quality day cares often have waiting lists of a year or more.
Parents also can be fooled by appearances. Cutro's day care looked ideal.
The aroma of hot meals filled the well-kept home in middle-class Irmo. She was experienced and particular about caring for children. Her daily report cards detailed meals, moods and even the number of diaper changes.
She decorated for holidays and celebrated each child's birthday. Cutro and her husband were trained in CPR.
The Colsons feel betrayed by Cutro and the state's child-protection system.
Gary Colson, Parker's father, is angry with the agency. ``Where the hell were they?'' he asks. ``If they would have been there, if they would have gotten into Parker's case . . . maybe, just maybe . . . Asher wouldn't be going through what he's going through now and Ashlan would still be here.''
This story was originally published July 26, 2016 at 9:51 AM with the headline "Blanket snatched off day care risks; Cutro probe exposed cracks in regulation."