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Flaws found in state child-abuse registries

- The Washington Times - Monday, April 26, 2010

NEW YORK | Combating child abuse is a cause with universal support. Yet a push to create a national database of abusers, as authorized by Congress in 2006, is barely progressing as serious flaws come to light in the state-level registries that would be the basis for a national list.

In North Carolina, an appeals court ruled last month that the registry there is unconstitutional because suspected abusers had no chance to defend themselves before being listed.

In New York, a class-action settlement is taking effect on behalf of thousands of people who were improperly denied the chance for a hearing to get removed from the state registry.

The U.S. Supreme Court is scheduled to hear a case this fall arising from the plight of a California couple whose names remain on that state's registry years after they were cleared of an abuse accusation made by their rebellious teenage daughter.

"Nobody wants to be seen as soft on child abuse and that's gotten us where we are," said Carolyn Kubitschek, a New York lawyer who has waged several court battles over the registries. "In the state of New York, it is still almost impossible to get off the list."

More than 40 states have the abuse registries, which are distinct from the better-known registries of convicted sex offenders that every state makes publicly available on the Internet. The abuse lists aren't accessible to the public but are used by day care centers, schools, adoption agencies and other entities to screen people who want to adopt, be foster parents or get a job working with children.

Even critics of the registries say they can serve a vital purpose in barring perpetrators of serious abuse from roles where they would interact routinely with children. It's the process underlying many of the registries that has come into question and their potential to entangle innocent people as well as wrongdoers.

A person doesn't have to be convicted or charged with a crime to get listed. Under the general practice in most states, entries are based on a child protection investigator's assertion that the person committed an act of abuse or neglect; hearings or appeals, if granted at all, often come long after the name is entered.

"Anybody can call a child abuse hot line and report abuse — anybody, including your ex-spouse who hates you, your landlord who's trying to evict you," Ms. Kubitschek said.

By law, she said, child protection services must investigate each call and their subsequent reports can lead to a person's placement on an abuse registry before they are notified or allowed to defend themselves.

The problems with due process were highlighted last year in an interim report by the U.S. Department of Health and Human Services, which has been directed by Congress to assess the feasibility of a national child abuse registry.

"Strong due process protections could necessitate significant changes to CPS investigation processes in some states that could be costly to implement and may discourage participation in a national registry," the HHS report said.

The report also questioned whether a national registry might be plagued by "false positives" affecting innocent people sharing a name with a perpetrator.

The potential problems will be assessed by a new HHS-commissioned study over the next two years, examining the state registries, gauging the states' interest in participating in a national registry, and trying to determine whether one is indeed needed.

"Would a national registry in fact be useful to states?" said Barbara Broman, an HHS official who oversaw preparation of the interim report. "We do not know the answer to that question."

Congress authorized a national child abuse registry in 2006 as part of the Adam Walsh Act, named for a Florida boy abducted and killed in 1981. His father, John Walsh, hosts the TV series "America's Most Wanted."

Among those urging faster progress toward a national registry is Sen. Charles E. Schumer, New York Democrat, who says such a list would help track child abusers who cross state lines to avoid detection and offend again in the new location.

"It doesn't make any sense at all that while we try to watch sex offenders like hawks, we let child batterers, who physically batter children, slip through the cracks," he told a news conference last month.

Howard Davidson of the American Bar Association's Center on Children and the Law said most people on the state registries are accused of neglect, not battering or other physical abuse.

Mr. Davidson supports use of the registries to screen potential adoptive or foster parents. But he questions whether they're a suitable tool for employers to vet job applicants because of inconsistencies in the level of proof required to register a name.

A disproportionate number of people on the registries are poor, Mr. Davidson said, decreasing their chances of successfully challenging an unfair inclusion on the list.

The National Child Abuse Coalition, a major player in Washington in advocating on behalf of abused children, is cautious about the proposed national registry.

Tom Birch, the coalition's legislative counsel, said there are many unanswered questions about the registry's costs and how it would reconcile differences in the states' definitions and handling of child maltreatment.

"Rushing ahead to create a national registry is not the way to go at this point," he said. "It would need to be done right."

While the abuse registries remain out of the spotlight in most states, there have been some notable recent developments.

California has had a series of cases involving people who were exonerated of abuse allegations yet struggled to get their names off the state's Child Abuse Central Index.

One such case is scheduled to be heard by the U.S. Supreme Court this fall. Lawyers say it will draw attention to the registry debate even though the issue before the justices involves a dispute over Los Angeles County's position in the case, not some of the more fundamental issues raised during their nine-year legal battle.

Craig and Wendy Humphries of Valencia, Calif., were arrested in 2001 after their daughter, then 15, accused them of abuse; their younger children were placed in foster care. State courts ruled that the accusation was false, but they remain on the list of 800,000 names.

In 2008, a federal appeals court found the registry system unconstitutional because there's no way for the innocent to clear their names. The ruling empathized with the Humphries as "living every parent's nightmare."