The Child Abuse Registry – Part I

Creating databases to keep track of accused child abusers sounded like a wonderful idea during the 1970s. So did mandated reporting, and abuse awareness campaigns. What legislators entirely underestimated at the time was the remarkable ability of what was at the time a fledgling cottage industry to blossom into an omnipresent industry that would become truly international in its scope by the mid-1990s.

The sheer number of people listed on the abuse Registries throughout the nation is staggering. As of 2004, California had over 800,000 people listed on its registry as “perpetrators” of abuse or neglect, with approximately 35,000 new reports added to the list annually. 150,000 people are listed on the Illinois Registry, and the state reportedly adds 14,000 new reports to its centralized Registry each year. The number of people on the list in New York State ranges from an estimated low of 1.5 to as many as 2.5 million.

In the 2009 ruling in Humphries v. Los Angeles, United States District Court Judge Jay S. Bybee succinctly explained that even after one or more findings of actual innocence in the courts, one’s name may nevertheless remain on the Child Abuse Registry:

Appellants Craig and Wendy Humphries are living every parent’s nightmare. Accused of abuse by a rebellious child, they were arrested, and had their other children taken away from them. When a doctor confirmed that the abuse charges could not be true, the state dismissed the criminal case against them. The Humphries then petitioned the criminal court, which found them “factually innocent” of the charges for which they had been arrested, and ordered the arrest records sealed and destroyed. Similarly, the juvenile court dismissed all counts of the dependency petition as “not true.”

The judge pointed to a task force report issued in 2004 that suggested that as many as one half of the names 800,000 names on the California child abuse Registry should be purged. The court concluded that: “In sum, we are not persuaded that California has provided a sufficient process for ensuring that persons like the Humphries do not suffer the stigma of being labeled child abusers plus the loss of significant state benefits, such as child-care licenses or employment. The processes in place in California do not adequately reduce the risk of error.”

In 2004, the California Department of Social Services was party to a similar lawsuit. Gomez v. Saenz alleged that names were submitted to the state’s Child Abuse Central Index without the right to challenge the listing. The lawsuit also challenged the accuracy of the information retained on the Registry, saying that a significant number of listings were maintained without adequate information to support the listing. The suit was settled in October 2007, but it wasn’t until September of 2010 that the Department sent a letter out addressed to all agencies in the state explaining the new procedures concerning placement on the Registry, and the revised appellate procedures. Related sections of the policy manual were replaced in their entirety.

In Illinois, a district court judge noted that 74.5 percent of indicated reports that were appealed were eventually overturned by either voluntary withdrawal of the findings, or after hearings by administrative law judges. In a New York case, the court of appeals found a nearly-identical rate of 75 percent, holding that New York State’s “some credible evidence” standard created an “unacceptably high risk of error.”

In describing Dupuy v. Samuels, Redleaf modestly explains neither that she or her law firm filed it; rather she explains that “150,000 Illinois residents filed the landmark case.” She continues on to describe the legal action:

The suit is a constitutional case that challenges several core aspects of child protection investigations as violating the Fourteenth Amendment’s guarantee of due process of law. The challenged policies include the lack of a constitutional standard for determining who is guilty of child abuse, the excruciatingly long hearing delays for people who seek to clear their names, the inadequate notices and information given to persons accused of abuse or neglect to enable them effectively appeal investigative findings against them, and demands made by state investigators that parents or children leave their homes at the outset of investigations, under threats that if they do not do so, their children will be taken into foster care.

In Cavarretta v. DCFS, another Illinois case, the Plaintiff sought to appeal a decision to put his name on the child abuse Registry. He eventually received a letter from the Department that read:

Due to the numerous requests for administrative hearings that this office receives, we will not be able to schedule your requested hearing for several months. However, approximately one month before the hearing is scheduled, someone from this office will either contact you or send you a notice concerning the scheduling of the hearing.

On considering the inordinately long delay, the Court ruled: “We determine that a 299-day delay in providing a hearing, a 9-day delay in issuing a final decision, and a 598-day delay in completing the appeals process is a gross deviation of the established time limits and thus a violation of the plaintiff’s due process rights.”

In New York, the Second Circuit Court of Appeals in Valmonte v. Bane found it “staggering” that an estimated 2,000,000 names were listed on the state’s child abuse Registry. Even more troubling was that 75 percent of those who sought expungement of their record were ultimately successful. The court noted that: “We find it difficult to fathom how such a huge percentage of New Yorkers could be included on a list of those suspected of child abuse and neglect, unless there has been a high rate of error in determinations.”

That was in 1994. As of today, New York’s Central Registry is facing yet another challenge.

Finch v. State, filed in February of 2004, challenged the substantial delays in scheduling hearings. As appeals took years to complete, many people who were awaiting a “clearance” from the Registry lost job opportunities. “These delays were particularly troubling since 60% -70% of people who eventually received their hearings were exonerated,” attorney Thomas Hoffman explains.

Judge Shira Scheindlin of the Southern District of New York, in certifying the case as a class action, noted that the wait time for appeals ranged from a low of three months to several years. Trial was scheduled to begin in March of 2010. However, before the trial was to begin, a concerned whistle blower came forward, and it came to light that many cases had simply been run through a paper shredder, as the Department of Social Services sought to clear its docket of backlogged appeals.

During the early 1990s, over 100,000 names were listed on the child abuse Registry in Colorado; and by the mid-1990s about 5,400 Utah residents were on that state’s list, Of those, only about 1,290 were actually taken to court, while the other 4,100 had never had due process hearings. It was unknown how many of them even knew that they were on the list.

Due process issues arose as a major concern in an audit of the Colorado Registry. The audit identified 191 people whose Judicial records indicated that they had been acquitted of child abuse charges, but were nevertheless listed on the Registry as “perpetrators” of abuse. The audit explains: “The Central Registry is a civil, rather than a criminal, tracking tool. Individuals do not have to be charged with or convicted of a crime in order to be listed on the Registry as a perpetrator of child abuse. As such, assurance that alleged perpetrators have the right to challenge Central Registry actions is extremely important. Central Registry of Child Protection statutes contain due process elements that protect individual rights.”

During his testimony before the Utah Legislature, a man said that he’d been placed on the state’s Registry a full five years before he’d learned about it. A woman said that she didn’t know she was on the list until she applied to host youths who would be visiting Utah for a few days. She was turned down, and she told lawmakers that she was never able to determine what allegations led to her placement on the list. In reporting on these events, Deseret News reporter Lois Collins commented:

In a land whose laws are based on the premise that one is innocent until proven guilty, the data base carries no guarantee of due process. And someone who wants to clear his name must go through a cumbersome process that may ultimately require a lawsuit — with no guarantees that will work, either.

Missouri’s legislators are aware of similar problems. Senator Peter Kinder assumed the dais as President Pro Tem of the Senate, addressing its members explaining that he had appointed a special committee and charged it with investigating the policies of the Division of Family Services. In St. Louis, his committee heard four-and-a-half hours of testimony from witnesses; in Kansas City, they heard three-and-a-half hours of witnesses; and in Springfield, his committee convened at 6 p.m. for its third hearing. Six and a half hours and 83 witnesses later, the hearing adjourned at 12:30 a.m. This was followed by another all-afternoon hearing in the Senate lounge. Senator Kinder said:

If I may summarize what we heard, in 18 hours of hearings, it was an astonishing outpouring of anguish, tears, bitterness, frustration and despair. We heard witness after witness tell us that our current system has ruined lives, trampled on constitutional rights and torn families apart. Most of this was confirmed by the inquiry launched by the governor’s study and included in their report. Children who should be removed from homes weren’t, while other children, who should remain in an intact family, were ruthlessly taken and placed into foster care. The testimony was so lopsided against our system, including DFS, judges and juvenile officers, that had our hearings been a prize fight the referees would have stopped it.

Mildred Jamison and Betty Johnson came to understand Missouri’s child abuse Registry all too well, having taken their case all the way to the Missouri Supreme Court. Ms. Jamison was the founder and CEO of Faith House, and Betty Dotson was a nurse employed there. All it took to set their nightmares into motion was an anonymous call to the hotline, alleging that they had negligently failed to supervise the children in their care.

After four years of navigating the labyrinth of administrative and legal proceedings, the state’s Supreme Court at long last ruled in their favor. Judge Laura Denver Stith wrote the opinion for a unanimous Court, explaining: “This Court holds that individuals subject to having their names included in the Central Registry have a constitutionally protected liberty interest because the dissemination of their names from the Central Registry creates a stigma damaging to their reputation and effectively precludes their employability in the profession of their choosing.”

As of late 2011, between 50,000 – 60,000 Iowa residents were listed on the state’s Registry. About 8,890 abuse reports were “founded” by social workers over the course of the year, adding to the numbers. About 1,270 people filed appeals. Of those, 109 were from a finding of “not confirmed.” The remaining 75 percent to 80 percent were settled, the most common finding being that the abuse is “confirmed,” but not listed on the registry. The state’s legislators were well aware of the problems, as Lee Rood, reporting in the Des Moines Register, explains:

Legislators and parents have complained for years that people whose names are placed on the registry have few due-process rights. It takes no conviction in court to end up on the registry – only a finding by DHS staff that it was “more likely than not” that the person neglected a child or, in a much smaller number of cases, abused a child.

What kind of cases are included in the Iowa child abuse Registry? Consider the case of Joy Brown, who was declared to be “an exemplary parent” by agency officials. Her son wandered away from the house, and as a result her name wound up on the list. By the state’s reasoning, because she had “allowed” her son to wander alone on a road, jeopardizing his safety, her case was cast as a “denial of critical care.”

As of early 2012, legislation was being discussed in the Connecticut General Assembly that would offer some relief to the estimated 90,000 people listed on its Registry, As Associated Press writer Shannon Young explains:

Currently, anyone identified as a suspect in Department of Children and Families investigations of child abuse and neglect is listed in a registry for such offenses, even if the individual is not convicted of a civil or criminal offense. Those listed in the registry can initially appeal the listing and can appeal it in court, if necessary.

There’s just one catch that comes with that approach. Young explains that “if they lose the appeal, they are permanently placed in the DCF child abuse database.”

Thomas DeMatteo, assistant legal director for the agency, did not produce a precise figure. He did say, however, that around 30 percent of all alleged offenders who appeal their listing are successful in removing their names from the registry.

As of 2012, some 83,917 Kentucky residents were listed on the state’s abuse Registry. As of 2010 North Carolina’s Registry held about 8,000 names, while Pennsylvania’s registry held 112,580 names.

Our journey begins in Louisville, where a Sunday school teacher found his name in and among those 80,000-plus entries. The teacher, described only as “W.B.” in court filings, was appalled to learn that his name was to be included on the state’s child abuse Registry because of an accusation for which he was never charged.

He feared that being listed would cost him his teaching position, as well as his reputation, so he demanded a trial by jury. A Jefferson Circuit Court judge and the Kentucky Court of Appeals ruled against him. He currently has an appeal pending before the Kentucky Supreme Court.

In the legal challenge raised in North Carolina against the policies of the abuse registry, the state’s Court of Appeals found in 2010 that as the statutory procedures for placing an individual on the Registry deprive individuals of due process, “they are unconstitutional under the North Carolina Constitution.”

Nearly 88 percent of the names listed on Pennsylvania’s registry were there based solely on the decisions of social workers. State welfare officials said that people are afforded due process through appeals, and that letters are automatically sent to abuse suspects notifying them that their names are being put on the registry. An officer from the department’s Bureau of Hearings and Appeals decides the contested cases.

In 1996, the seven judges in the Maryland Court of Appeals unanimously ruled that accused people have the right to a full-blown administrative hearing, complete with witnesses and evidence, when their names are put on the state’s registry. At the time, the Registry held the names of 12,500 people, many of whom had been determined by social workers to have cases in which some “credible evidence” was found to back up abuse claims.

The reform, however, was short lived. Another Maryland case involving the state’s Registry was decided in 2012, with the Court of Appeals writing that the state regulations at issue “perpetrate an injustice.” The regulations, the Court concluded, are “incompatible” and “inconsistent” with Maryland laws concerning child abuse allegations.

The case stemmed from a Baltimore City Public School teacher and paraprofessional having been independently accused of abuse. They were “investigated” and tagged with an “unidentified unsubstantiated” determination. They appealed. When the Baltimore City Department of Social Services refused to hear their appeal, the law firm of Kahn, Smith and Collins, at the behest of the Baltimore Teachers Union, filed suit on their behalf. The decision issued by the Court of Appeals noted that the challenged regulations were “untenable,” “illogical,” and oxymoronic.

Elsewhere, the Athens Daily News reported: “The Georgia Supreme Court ruled that the state’s child abuse registry is unconstitutional, upholding the decisions of two lower courts.” The 1998 decision struck down the statewide Registry on Constitutional grounds. It had collected over 73,000 names since its inception in 1991.

Prior to that, a Virginia Court ruled that the state’s Department of Social Services had to purge its child abuse Registry of all those individuals who had been listed in the systems as “reason to suspect.” The category covered those who were suspected – but not convicted – of child abuse.

By 1989, Florida’s teachers were growing weary of the false allegations. About that time, 211,000 names were on the Sunshine State’s abuse Registry. An attorney with the Florida Teaching Profession-National Education Association said that eight school employees had filed lawsuits seeking to have their names removed from the child abuse Registry, and another fifteen were planning to file similar suits.

During task force hearings, Florida’s legislators heard about a kindergarten teacher who was near retirement who wound up being listed among “confirmed” child abusers on the Registry. They heard of a father of seven – twice named teacher of the year – who brought clothing in for a needy student, only to find himself on the list as a result. Fifty seven Dade County teachers faced abuse accusations after breaking up fights. For those who could afford them, appeals could easily run into the thousands of dollars, and may take several months to complete even as a is teacher suspended awaiting the outcome.

At time went by, the Orlando Sentinel reported that 57 percent of “confirmed abusers” who took their case to an administrative hearing officer had their findings overturned, their names ordered off the Registry. Newspapers in Jacksonville and Fort Lauderdale reported that as many as 92 percent of appealed cases were overturned over a six month period.

“It has been more than a decade since Child Protective Services entered Gary and Melissa Gates’s home in the Houston area and removed their two biological children and 11 adopted ones, after an allegation that the pair had emotionally abused one of the children. Within three days, a judge had returned all the children to their parents; within eight months, the child welfare agency had dropped its case,” writes New York Times reporter Emily Ramshaw.

The Gates family is not alone. They share their few kilobytes of disk space in the Texas child abuse Registry with a half-million other people.

What makes their case unusual is that the family is well-to-do financially. “From my side of the socioeconomic scale, this is nothing you’d ever think would happen,” said Mr. Gates, who has spent “well north of $500,000” trying to get off the registry and to hold Child Protective Services accountable. “The reality is, very few people have the emotional and financial fortitude to fight this.”

Ramshaw explains that “the confidential registry is made up largely of people who are not convicted criminals or registered sex offenders. It contains the names of more than 500,000 people — 5,700 of them ages 10 to 17 — who state investigators have found ‘reason to believe’ sexually abused, physically harmed or neglected a child.”

Only one third of those who appeal their cases are successful, while the remainder may pursue administrative appeals through the State Office of Administrative Hearings — a process that “can take years because of a shortage of lawyers in the Department of Family and Protective Services’ legal division.” At the end of 2010, more than 2,100 people were awaiting administrative reviews. More than 1,000 of them had been waiting for over a year, and nearly 200 had been waiting three years or more.

As of April 2011, the couple remained on the Texas Registry after having lost an administrative appeal that they’d waited over eight years for.

Approximately 40 States, the District of Columbia, American Samoa, and Guam have provisions in their statutes for the expungement of child abuse and neglect reports. Statutes vary widely as to the standards of evidence and the procedures employed.

Ten States — including Alaska, Idaho, Kansas, New Mexico, North Dakota, Ohio, Oregon, Tennessee, Texas, and Wisconsin — as well as the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands — do not have any provisions in their statutes allowing for the removal of child abuse and neglect records in their registries.