The Child Abuse Registry – Part II – Victory in California

There is a fine line between Unfounded and Inconclusive determinations. An Inconclusive determination automatically places an offender’s name on the Child Abuse Central Index without conclusive evidence and a legal framework to ensure due process. This may give the appearance of “guilty until proven innocent,” contrary to legal tradition.
–Solano County Grand Jury


OVERVIEW

California’s Child Abuse Central Index, or CACI, as it is commonly called, has been the subject of countless reviews, investigations, Grand Jury reports, and lawsuits. Yet, nothing ever seemed to change. At least not in a manner that would have meaningfully impacted the estimated 800,000 people whose names were listed on the Registry. Maintained by the California Department of Justice, the Registry “is not actively managed by the State. It is not routinely purged of erroneous or unsupported entries.” Individual reporting agencies hold the responsibility for updating the database, something that they have historically been reluctant to do.

Among the more recent examinations of California’s Child Abuse Registry were those of two Grand Juries. In its report, entitled Health And Social Services Child Abuse Reporting, the 2008-2009 Solano County Grand Jury explored these issues, following up on prior reports that it had issued. Thereafter, the 2009-2010 Orange County Grand Jury followed up with a report of its own, ominously entitled CACI: Child Abuse Central Index: Guilty Until Found Innocent.

A VICTORY FOR FAMILIES

On October 14, 2011, Governor Edmund G. Brown Jr. signed into law Assembly Bill 717, introduced by Assemblymember Tom Ammiano (D-San Francisco) amending the Child Abuse Central Index. The newly revised statute went into effect on January, 1, 2012.

The Act was amended to include only “substantiated” claims of abuse or severe neglect. According to the Act, an agency “shall forward to the Department of Justice a report in writing of every case it investigates of known or suspected child abuse or severe neglect that is determined to be substantiated,” with the clear proviso that an agency “shall not forward a report to the Department of Justice unless it has conducted an active investigation and determined that the report is substantiated,” as defined in the revised Code.

The revised legislation states also that: “If a report has previously been filed which subsequently proves to be not substantiated, the Department of Justice shall be notified in writing of that fact and shall not retain the report.”

Much to their credit, both the Solano and Orange County Grand Juries went to great lengths in conducting their investigations, as the Orange County report explains:

The Grand Jury completed its study through interviews with Hot Line staff and emergency response investigators at Children and Family Services as well as in-depth discussions with the administrative and program leadership of the agency. The Grand Jury interviewed local police agencies and reviewed their policies and procedures. The Grand Jury obtained CACI definitions and requirements from the state Department of Justice and reviewed internal reports and documents issued by CFS and local police agencies. Additionally, the Grand Jury reviewed all appropriate state and federal guidelines regarding Child Abuse Central Index and reports published by prior California Grand Juries.

The extent to which these two critical reports may have played a decisive role in the passing of the legislation is a question best left open for historians, however the arguments they set forth are worthy of review by advocates seeking similar reforms in their own states.

SOLANO GRAND JURY FINDINGS

Individuals whose names appear on the Registry often appeal the placement, however the appeal may or may not result in removal from the list. The Solano County Jury notes that it can be difficult and expensive to challenge a listing. During the timeframe of July 2006 to December 2008, Solano County residents listed on the Registry were only successful in challenging their listings between 10 to 50 percent of the time.

As the Solano Grand Jury explained, following an investigation, and using the information gathered, the Social Worker “makes one of three determinations” as defined in the California Penal Code:

. Unfounded: The report is determined by the investigator who conducted the investigation to be false, inherently improbable, to involve an accidental injury, or to not constitute child abuse. The person’s name is not submitted to be listed on CACI.

. Inconclusive: A report is determined by the investigator, who conducted the investigation not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse and/or neglect have occurred. The person’s name is placed on the CACI list and remains for 10 years (if no further incidents occur).

. Substantiated: The report is determined by the investigator who conducted the investigation to constitute child abuse and/or neglect. The person’s name is permanently placed on the CACI list.

Part of the problem are the burdensome and often-contradictory regulations that come with shifting mandates. The practical effect of all this, as the Jury explained, is that: “CPS does not have investigative manuals designed to teach and direct Social Workers in their duties and responsibilities in Solano County. The materials used by CPS comprise many binders containing broad guidelines provided by the State of California and the Northern California Training Academy. They are designed to assist employees and are not meant to be specific to Solano County. The manuals are voluminous, sometimes vague, and confusing. A reader would have to spend hours in researching a single subject.”

This is not the first time that Solano County’s Grand Jury had visited this particular issue. The 2008-2009 Jury echoed the findings of some of its prior reports:

. There was an absence of manager signatures on reports documenting managerial review, decisions, and/or approval

. When Social Workers prepared their reports based on their observations in the field, the content of the reports were sometimes altered by the supervisors and/or managers; consequently, Social Workers were given the option to refuse to sign altered reports or clarify in court testimony that they did not personally write portions of what might be viewed as evidence

. There was confusion on the part of CPS staff regarding procedures and policies

. There was oversensitivity to negative feedback

. There was a lack of mutual accountability and teamwork at all levels

. CPS has continued to demonstrate an inability to self-correct, although there have been internal and external attempts to correct these deficiencies; its organizational culture is subverting the achievement of the CPS mission.

The Jury found instances in which people who had not even been interviewed were nevertheless placed on the Registry, or who may not have been informed of an impending listing, or of their right to appeal. As the Jury concluded:

There is a fine line between Unfounded and Inconclusive determinations. An Inconclusive determination automatically places an alleged offender’s name on the Child Abuse Central Index without conclusive evidence and a legal framework to ensure due process. This may give the appearance of “guilty until proven innocent,” contrary to legal tradition.

For many years, family and child advocates have asserted that the presumption of innocence is turned upside-down when it comes to child abuse investigations. Many assert that this presumption of being “guilty until proven innocent” runs throughout the entire fabric of the child protection industry; from initial investigations through removals, as well as through the various stages of administrative and legal proceedings that may follow.

ORANGE COUNTY’S EXAMINATION

In 2009, “Orange County added the names of 792 county residents to the state list of child abusers based on investigations that did not establish sufficient evidence to say that abuse had occurred. The names of the accused were sent to the Child Abuse Central Index (CACI) in an Inconclusive category. Those accused with an inconclusive report can remain on the list for 10 years from the last report,” begins Orange County’s Grand Jury Report.

As is the case in all of California’s Counties, the information is maintained in a centralized location by the state’s Department of Justice, and this information “is made available to employers who have interaction with children, including schools, law enforcement, child welfare agencies, foster homes, adoption agencies, and licensed child care homes.”

The Orange County study explains that the “process and guidelines for placing someone on the Child Abuse Central Index based on an Inconclusive finding are confusing, highly subjective and provide little protection for those individuals falsely accused of abuse.” More to the point, the report came to the critical finding that:

The California Penal Code requires that a result of an Inconclusive finding be reported and placed on the Child Abuse Central Index because there is insufficient evidence to make a determination of whether abuse occurred.

This represents a confict with the American legal principle of innocent until proven guilty.

The Jury notes that there are “numerous examples” in which a court finding in favor of an accused did not result in removal of the name from the Registry. Children and Family Services is not required to respond to a court action, the Jury explains, and the agency may on its own determine that there are other reasons to retain the name on list. Since Registry listings can be made without a criminal complaint even being filed, “there is no opportunity for the accused to prove innocence in a court of law.”

THE CANRA TASK FORCE

It was an Assembly Bill during California’s 2001-2002 legislative session that eastablished the the Child Abuse And Neglect Reporting Act Task Force, which came to be commonly known as the CANRA Task Force. The report itself candidly explains that: “Calls for legislative reform, as well as litigation, were the impetus for the creation of the CANRA Task Force.”

By the time the Task Force came into being, Californians had been impacted by the state’s reporting laws for forty years. Efforts at reforming the laws in the legislature failed to gain ground, hence a compromise measure was reached establishing the Task Force.

California’s Child Abuse And Neglect Reporting Act was “premised on the belief that reporting suspected child abuse is fundamental to protecting children.” The legislative purposes behind the Act are: (1) to identify child abuse victims for early intervention and protection by public authorities as early as possible; and (2) to provide “an important source of information assisting local law enforcement officials and child protective agencies in identifying, apprehending and prosecuting child abusers.” The statutory procedures for reporting have been deemed by California courts as being “essential” in accomplishing these goals, the report explains.

So, what exactly was the problem? In short, that there was a broad and grey area between a finding of “substantiated” and “unsubstantiated.” By definition, an “inconclusive” report “is one that is not unfounded but in which the findings are inconclusive and there exists insufficient evidence to determine that child abuse or neglect occurred.”

As 0f 2004, the Index contained approximately 905,000 entries, listing about 810,000 suspects, and 1,000,000 potential victims. Per year, California’s Department of Justice received approximately 35,000 new reports to be added to the Index; some 10,000 inquiries for investigative purposes; and 40,000 inquiries for non-investigative functions.

“Although the Task Force followed its mandate to review the value of the Index in protecting children, the most prevalent calls for change were from individuals whose names had been placed on the Index as suspects,” the Task Force found.

“Additionally, individuals who believed their names had been unfairly placed on the Index as suspects contended that their inability to challenge placement of their name before being listed and their inability to remove their names afterwards, without expending significant monies on attorneys, amounted to a violation of their due process rights.”

One of the key findings of the Task Force was the wide discrepancies between Counties and how or whther they provided any avenue of due process to challenge a listing on the Registry:

Due to the expense and complexity of private litigation options, leaving such as the sole method to address due process concerns places an enormous hurdle before all suspects wishing to challenge a CACI listing and makes such a challenge all but impossible for low or moderate income suspects. The law already requires notice to suspects, but then provides no method to act on that notice if a suspect believes that the government’s action is inappropriate. While some counties appear to have informal mechanisms to address requests for listing removal, most do not appear to have such. In fact, it appears that there are still counties in which the notice requirement is not effectively in place. Such inconsistent access to process, ifthere is process at all, does not square with the concept of fairness and calls for some type of consistent, statewide process to be in place to address this issue.

The Task Force is concerned that a suspect’s county of residence should not determine the level of process available. The Task Force also believes it is unfair for residents of one county to have access to a governmental review at little or no cost as residents of another county are required to hire expensive counsel and file suit to obtain review.

In summary, while the Task Force made a few worthwhile recommendations, precious little meaningful change came of the effort. For historical purposes, its work perhaps stands as a highly detailed model of how not to run an abuse Registry.

REMARKABLE RESILIANCY

As harmful as the Child Abuse Central Index may have been, it nevertheless enjoyed a remarkable resilience, having withstood several legal challenges.

In a case that gathered media attention, Catherine Donahue Burt, a chronic sufferer of migraines who took regular injections of Demerol, realized that her syringe had slipped out of her pajama pocket as she was putting her baby to sleep. She frantically called 911 for help.

“Paramedics and emergency-room doctors later determined that no Demerol had gotten into the baby’s system, according to Knight-Ridder News Service.

“But nearly a year later, Burt said she regrets making that call.”

It wasn’t so much that the police placed the child in the County’s “temporary custody pending completion and review of a full investigation of the incident” that did it. Two days later, the child was returned unharmed. Rather, Burt was informed that the result a “probe” by the County determined that her name was to be put on the Registry, without any recourse for an appeal.

Burt, herself a pharmacist, and her husband, a decorated navy pilot, fought to clear her name, and on June 30, 2004, victory arrived in the form of a Court of Appeals ruling that held that under the Constitution, “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”

This was the first of the meaningful legal challenges to the Registry.

On July 27, 2004, the Orange County Board of Supervisors, in a closed-door session, by a vote of 3 to 2, voted to authorize “County Counsel to file a petition for review in the California Supreme Court in the case of Catherine Dohahue Burt v. County of Orange, et al.” Supervisors Wilson, and Silva voted in favor, and Supervisors Norby and Campbell voted against the proposal.

On December 6, 2005 — also during a closed-door session — the Orange County Board of Supervisors did a remarkable about-face, and in consultation with County Counsel unanimously approved a settlement in the Burt case.

Burt v Orange County was followed by Gomez v. Saenz. That lawsuit originated in July 2004, and it was settled on October 9, 2007. The suit addressed the rights of individuals whose names either are — or will be — listed on the California Child Abuse Central Index.

Based on the settlement agreement, beginning March 1, 2008, individuals were to be provided appropriate notice of their CACI listing, as well as of their right to appeal the listing via an administrative grievance proceedure. In addition, the settlement allows individuals who may not have received a notice of their right to appeal prior to March 1, 2008, to challenge their continued listing on the CACI.

According to a Procedural Guide issued by the California Department of Social Services, keeping up with the legislative and judicial changes was becoming a fulltime job in and of itself, requiring several revisions to operating manuals along the way. The Guide explains:

Previously, in response to Burt v. County of Orange, DCFS established a process for individuals, who believe that DCFS incorrectly reported them to the Department of Justice or that their name was listed on the Child Abuse Central Index in error, to challenge DCFS’ action. However, because of the Gomez v. Saenz lawsuit, that process has been revamped to meet the requirements of the lawsuit settlement.

According to the updated procedures, under the terms of the Gomez settlement, the grievance officer conducting hearings challenging a listing on the Registry shall be:

. A staff or other person not involved in the investigation of the alleged child abuse or severe neglect.

. Neither a co-worker nor a person directly in the chain of supervision of any of the persons involved in the investigation of the alleged abuse or severe neglect unless the grievance officer is the Director or Deputy Director of DCFS.

. Knowledge in the field of child abuse or neglect investigations and capable of objectively reviewing the complaint.

TAKE A LETTER, MARIA:
THE NUTS AND BOLTS OF IMPLEMENTING GOMEZ

In a letter addressed to all county directors on the state’s Department of Social Services letterhead, Mary L. Ault, Deputy Director of the Department’s Children and Family Services Division, informed one and all of the changes that the Gomez settlement would bring to day-to-day operations.

The letter, dated December 28, 2007, was addressed to All County Welfare Directors, All Child Welfare Services Program Managers, and Chief Probation Officers. The letter explained that:

The Gomez v. Saenz lawsuit originated in July 2004, and was settled on October 9, 2007. The lawsuit addresses the rights of individuals whose names either are or will be listed on the CACI. Based on the settlement agreement, beginning March 1, 2008 individuals are to be provided appropriate notice of their CACI listing as well as the right to appeal. In addition, the settlement allows individuals who may not have received a notice of their right to appeal prior to March 1, 2008, to challenge their listing on the CACI.

There were specific public notification requirements. Child welfare agencies and Community Care Licensing Division offices were “required to post for 30 days (in a prominent manner in locations to which the public has regular access) a notification informing the public of their right to determine whether or not their name is listed on the CACI.”

These notifications were to be distributed prior to March 1, 2008. In addition to the posting of notifications, the settlement required publication of the same information in both English and Spanish newspapers that had widespread circulation.

The purging of the Registry itself was to begin immediately. Also to be purged were those files “where no underlying files exist,” such as those that may have been destroyed as a result of floods or fires. (The true extent to which the estimated 800,000 files may have sat on the Registry without any supporting documentation may never be known.) The letter also specified the timeframes required for the great purge to begin:

Next Steps

“Because this is a legal settlement with specific requirements,” the leter explained, “the activities must be carried out as specified in the settlement. It is important that the implementation of the activities is carried out in a consistent manner throughout the state in order to assure accurate notification and purging of unsupported CACI listings.” The timelines for settlement activities follow:

Fall 2007

.Begin purge process to remove from the CACI those names or dates for which supporting documentation is unavailable.

March 1, 2008

.Post and Publish notifications of individual’s right to determine CACI listing and to
request grievance hearing

September 1, 2008

. Survey to begin in 12 counties as noted in the settlement.

More detailed instructions regarding implementation were said to be forthcoming, and were to include “the required noticing forms and grievance procedures, as well as Q & A from the counties.”

THE CONSTITUTION, DUE PROCESS, AND
CHILD WELFARE WORKERS

By May of 2009, the Central California Training Academy at California State University, Fresno, had established the Gomez vs. Saenz Settlement: Training for Child Welfare Workers & Supervisors. Much to their credit, the designers of the curriculumn devote attention to the civil liberties that most citizens take for granted.

In a section of the training module under the heading “The Constitution, Due Process, and Child Welfare Workers,” Constitutional protections against government actions are specifically explained to trainees, including the provisions of the Fifth and Fourteenth Amendments to the Constitution.

“The actions taken by child welfare services workers often affect people’s liberty rights,” the training module explains, citing as examples:

. Parents have the liberty right of freedom of personal choice in matters of family life, including the right to raise their children.

. Children have the liberty right to grow up in a permanent, secure, stable and loving environment, free from abuse or neglect.

. A person accused of abuse or neglect has the liberty right to ensure that his or her “good name” and reputation are not stigmatized by false information maintained by the government, where it is likely that members of the public will see the damaging information.

The training module clearly explains the rationale underlying due process:

Remember what the framers of the Constitution had in mind when they created the Constitution — protecting the people from abuse by their government. Therefore, the due process protections set forth in the Fifth and Fourteenth Amendments to the Constitution are intended:

. To protect individuals from unwarranted or arbitrary governmental intrusion.

. To prevent the government from abusing its power over individuals.

After continuing on to describe the concepts of due process, substantive and procedural — including such vital elements as being provided with notice and having a meaningful opportunity to be heard — the training module hammers the point home to case workers and other child protection personnel in training, emphasizing:

You work for the County. California’s county governments are considered subdivisions of State government. Bottom line:

YOU represent the GOVERNMENT!!

THE LUCRATIVE INDUSTRY OF REFORM

The Bay Area Training Academy, operated by San Francisco State University, put together a similar curriculum, featuring a two-day conference to be held on December 2 and 3, 2008, on the topic of “Gomez v. Saenz Hearing Officer Training.”

The first day focused on “background information and history on Gomez, during which Diane Brown and Mary Shepard, both of the Department of Social Services, were to “present an overview of the implications of Gomez including regulations and implementations.

Attendees on the second day of the conference were in for a treat. Not only did they enjoy a continental breakfast, but they were also treated to a seminar provided by Honorary Jose Banuelos, Presiding Administrative Law Judge of the Fresno Regional Office. The event was held at the Contra Costa Social Services Department, in Hercules, California, and the day two conference was restricted to hearing officers only.

Such training doesn’t come cheap, in the child welfare industry. A memorandum sent out on City and County of San Francisco Human Services Agency letterhead, dated September 18, 2009, indicates that the Bay Area Training Academy had been awarded a generous grant of $2,547,626 for training provided between July 1, 2006 through December 31, 2009. The substance of the letter was such that a modest increase of $76,660 was to be alloted to the Academy, bringing its total for training to $2,624,286.

The money was “for the provision of training services and curriculum development for the ‘Strengthening Families, Community and Neighborhood Deciding as One’ initiative; and, training and consultant services for Family and Children’s services to ensure compliance with the Gomez v. Saenz Grievance Process, in the amount of $76,660 for the period of October 1, 2009 to December 31, 2009.”


RELATED READING

Governor Brown Press Releases.

Text of Assembly Bill 717.

CACI: Child Abuse Central Index, Guilty Until Found Innocent, Orange County Grand Jury 2009-10.

Health and Social Services Child Abuse Reporting, 2008-09 Solano County Grand Jury.

L.A. Superior Court Settlement Gomez v. Saenz.

Gomez v. Saenz Trainee Manual.

Burt v County of Orange(2004) 120 Cal.App.4th 273, 15 Cal.Rptr.3d 373, review den. Sept. 15, 2004.

Writeup on Burt case by Attorney Richard Gaines Heston.

Humphries v Los Angeles, 554 F. 3d 1170, Court of Appeals, 9th Cir.

Related Documents.