Listen to thisKENTUCKY
Joyce Givens was never accused of beating a child, or torturing a child or molesting a child. The Lexington foster mother cared for more than 400 children over 16 years with an unblemished record.
Then a 15-year-old foster child with a transplanted kidney lied about taking her medication and wound up hospitalized. Givens didn’t know the child wasn’t taking her medicine. The state never told Givens the child had a history of failing to take medication. Yet for this, a caseworker for the Cabinet for Health and Family Services decided Givens “neglected” the child – and listed her as a child abuser on Kentucky’s Central Registry.
When she appealed the decision, a hearing officer, also from the Cabinet, upheld the listing.
Yes, there are serious problems with the secret, unaccountable system by which appeals of such decisions are heard, as the Courier-Journal reported recently. But the problems go in all directions.
If, as Acena Beck of the Children’s Law Center in Covington says, “there’s no consistency” and hearings “can vary greatly depending on which hearing officer you get” then it stands to reason that some child abusers will be let off the hook, but also many innocent people will wrongly be labeled child abusers.
Both kinds of error have severe consequences for children – who themselves can be wrongly listed as perpetrators.
To understand why it’s so important to have a fair process for getting off the registry it’s urgent to understand the process for getting on.
Unlike registries for sex offenders, the child abuse registry is not restricted to those who were found guilty beyond a reasonable doubt after a trial. In Kentucky, to be listed in the registry, a caseworker need simply conclude that it is slightly more likely than not that the subject of the report abused or neglected a child.
And Kentucky’s definition of neglect includes any parent who “does not provide the child with adequate care, supervision, food, clothing, shelter, education, or medical care necessary for the child's well-being.”
So almost any impoverished parent can be branded a child abuser and listed on a central registry at the whim of a caseworker. That parent’s only recourse is to appeal to the same department that made the decision – a department that has had its share of scandals involving harm to innocent families.
There was the exposure of quick-trigger adoptions, children torn from everyone they know and love and rushed to termination of parental rights so the state could collect what amounts to bounties from the federal government. And there was the scathing report from the Cabinet’s own inspector general finding rampant bias against families in Hardin County.
Given a deck so stacked against families, the fact that more than half the time the listings are overturned suggests that the biggest problem is not rogue hearing officers defying their own caseworkers, but rather caseworkers rushing to do things like confuse poverty with “neglect” and scapegoat good foster parents.
There is nothing unusual about Kentucky’s reversal rate – except that it may be too low. In New York and Illinois class-action lawsuits revealed that when people finally made it through a slow, cumbersome appeals process they won 75 percent of the time. (My organization’s vice president brought the New York suit.) In North Carolina and Missouri state supreme courts ruled that the very idea of blacklisting someone first and forcing them to appeal afterwards was unconstitutional. Those courts ruled there must be a hearing before a listing in a central register.
Yet now, in Kentucky, there is even a proposal to make public all the names on what amounts to a giant blacklist of rumor and innuendo compiled in secret with no accountability.
As always, when child welfare systems operate that way children suffer most.
First, there is the harm that was the focus of the Courier-Journal story – cases where there may be strong evidence of abuse but the accused gets off the registry.
But also when an impoverished parent is wrongly listed on the registry it further limits his or her job prospects, increasing the chances that the family will have to endure all the harm of poverty.
And the alleged perpetrator isn’t always an adult. Kentucky lists children as young as 12. The lead plaintiff in the Illinois lawsuit was listed when she was about that age – for sexual abuse – because she helped pull up the pants of much younger children who were “playing doctor” in the family’s home day care.
Fortunately, the solutions to the errors in all directions are the same:
Before anyone is listed in the registry there should be full-fledged hearings with a strong rebuttable presumption that they will be public. The hearing officer should not be employed by the agency that listed the accused on the registry in the first place. All parties should be notified, full records should be kept, there should be a high standard of proof, and counsel provided for those too poor to afford it.
Transparency and due process are in everyone’s best interest.
By Richard Wexler
Richard Wexler is Executive Director of the National Coalition for Child Protection
25 January 2017
