Chapter 16 The Impact of Abuse and Neglect Findings Beyond the Juvenile Courthouse: Understanding the Child Abuse Register System and Ways to Challenge Administrative Child Abuse Register Determinations

• Library: Representing Parents in Child Welfare Cases: Advice and Guidance for Family Defenders (ABA) (2015 Ed.)

CHAPTER 16 The Impact of Abuse and Neglect Findings Beyond the Juvenile Courthouse: Understanding the Child Abuse Register System and Ways to Challenge Administrative Child Abuse Register Determinations

Diane L. Redleaf

"The current flood of unfounded reports is overwhelming the limited resources of child protective agencies. For fear of missing even one abused child, workers perform extensive investigations of vague and apparently unsupported reports."
—Douglas Besharov, Child Abuse Realities: Over-reporting and Poverty, 8 Va. J. Soc. Pol'y & L. 165, 191 (2000).

16.01 Introduction

Most of the chapters in this book focus on practices and procedures when child welfare cases are prosecuted in court. But the child welfare system operates well beyond matters that ever get to court. Indeed, the majority of work done by child welfare agencies never ends up going to court or involving lawyers. This chapter focuses on an important but relatively unknown feature of child welfare investigations: how individuals end up with their names on a state-wide child abuse register ("Register"); the potential consequences to them for being on the Register; and how to seek the removal of their names from it.

Before discussing the Register itself, however, it is important to describe the investigative function of child welfare agencies, which is an integral aspect of Registers. Investigations are the overwhelming activity in which child welfare agencies engage in the United States. The number of children brought to the attention of child protection authorities due to hotline calls in the United States is truly staggering: in 2012, 6,300,000 children were the subject of a call to a child abuse or neglect hotline. Not all of these calls were accepted for investigation, but more than 3.2 million children in 2012 alone were the subjects of investigations for abuse or neglect by a person in a caretaking role, most often a parent. This chapter will often refer to "caregivers," rather than "parents," because any person serving in a caregiving role, including day care workers, social workers, health care workers, and teachers, among many others, may become the subject of a child protection investigation. Of the investigated cases, less than 40 percent are "indicated" or "substantiated" by child protective services investigators (the rates vary widely from state to state). This chapter will use the term "indicated" to refer to all findings made by the person or Agency responsible for investigating allegations that a child was maltreated (abused or neglected), regardless of the terminology of any particular jurisdiction.

When a case is "indicated," it results in the name of the person found to have maltreated a child to be placed into the Register maintained by every state. Only a small fraction of the indicated investigated cases result in charges being brought in court. In Illinois, for example, more than 80 percent of cases in which initial investigations were indicated never result in judicial proceedings being commenced against the caregiver. An even smaller percentage of such cases result in criminal prosecutions. For example, of the 150,000 names in the Register in Illinois in 1997, only 5,000 had criminal convictions for child abuse.

In addition, a staggeringly high percentage of names in Registers are removed after an administrative review. Federal courts in Illinois and New York concluded that as many as three out of four names on the Register in those two states are removed when challenged through the administrative process. See Valmonte v. Bane, 18 F.3d 992, 1004 (2d Cir. 1994) (describing the system as having an "unacceptably high risk of error"); Dupuy v. McDonald, 141 F. Supp. 2d 1090, 1136 (N.D. Ill. 2001) (terming the 74.6 percent reversal rate a staggering rate of error), aff'd in relevant part, 397 F.3d 493 (7th Cir. 2005). A Missouri court found a 35-40-percent reversal rate in administrative register appeals. See Jamison v. Mo. Dep't of Soc. Servs., 218 S.W.3d 399, 409 (Mo. 2007). According to the Connecticut's Department of Children and Families' website, in 2004, the Connecticut Child Welfare Agency found that half of its CPS findings of abuse or neglect got overturned on appeal. In 2013, the Illinois Supreme Court issued a ruling resulting in the expungement of more than 19,000 names on the Register. See Julie Q. v. Dep't of Children and Family Servs., 2013 IL 113783, 1 44, 376 Ill. Dec. 294, 489, 995 N.E.2d 977, 986 (2013).

When cases end up in court, caregivers have the opportunity as defendants or respondents to defend themselves and to have the court determine after an evidentiary hearing whether or not the charges are proven. But when no court action is commenced—in other words, the vast majority of the time—unless the caregiver challenges the initial indicated finding in an administrative proceeding that the care-giver needs to commence, the caregiver's name will end up on the Register, often remaining there for many years.

Lawyers who are assigned to represent caregivers in court proceedings commonly regard the child abuse administrative register process as beyond their workload, in part because the court assignment does not go beyond the court proceeding itself. Many lawyers who represent caregivers in child protection court proceedings know relatively little about child abuse registers. To the extent lawyers have an awareness of registers generally, they are too often confused with criminal registries (including Sex Offender Registers), which are entirely different systems having no connection to the subject of this chapter. Caregivers' lawyers in child protection cases may not even realize, for example, that even when the caregiver wins in court, in many states, the caregiver's name may not be automatically removed from the Register. Unless removed, the person's name will stay in the Register, in some states, for as long as fifty years or until the person dies.

There are, however, important—and accessible—administrative proceedings with internal reviews and appeals that are available to all persons whose name is placed on the Register. The Register is an important aspect of the child protection system imposing very significant, long-lasting consequences on persons whose names end up on it. In some cases, challenging the decision to put an individual's name into the Register may have an immediate impact on the dependency case. Lawyers representing caregivers in child protection cases should become familiar with how the child abuse reporting, investigation, and findings system works in their state. Moreover, lawyers should know how the resolution of the court case may impact efforts to secure the removal of a caregiver's name from the Register. This chapter is written both to inform lawyers about the available processes and to encourage them to become more involved in challenging indicated findings and seeking the removal of their clients' names from the Register.

As will be shown, when someone is listed in the Register, considerably more is at stake than mere reputation. Lawyers for caregivers in court proceedings who expand their focus to the administrative process not only will come to enjoy a new practice that has considerable opportunity for success but they will be advancing the interests of their clients dramatically.

16.02 The Origins and Operation of the Child Abuse Hotline and Register System

In 1974, Congress enacted the Child Abuse Prevention and Treatment Act (CAPTA), which revolutionized and created the modern child welfare system in place in every state in the country. Child Abuse Prevention and Treatment Act, Pub. L. No. 93-247, (codified at 42 U.S.C. § 5101 (1996)). CAPTA mandates that each state maintain an...