Names On Child Protection List Hard To Remove by Lisa Demer

Reproduced under the Fair Use exception of 17 USC § 107 for noncommercial, nonprofit, and educational use.

No day in court: Once on child protection services list, name is not easily removed; repercussions can be far-reaching.

January 9, 2006 — Hundreds of Alaska parents have been labeled as abusive or neglectful by state investigators, many of them without ever getting a chance to defend themselves in court.

These parents weren't convicted of any crime. No judge or jury listened to the evidence and concluded they hurt a child.

A child protection worker did and that was enough for the government to blacklist them from certain jobs working with children and, in some cases, from even being around kids.

Now a settlement in a civil rights lawsuit is giving these people a way to clear their name.

Mark Ruby, 45, who lives near Wasilla, sued state officials last year in U.S. District Court, saying they branded him a child sex abuser without telling him and, when he discovered he was on the blacklist, allowed him only a minimal avenue of appeal.

The allegations against him were investigated by Wasilla and Anchorage police. No criminal charges were filed, and he's always denied the accusation.

“It is bad enough to be wrongly accused, have one day's in court and lose. It is much worse to be wrongly accused, and never be allowed a day in court,” said Kenneth Kirk, the Anchorage lawyer who represented Ruby.

Officials with the state Office of Children's Services said their workers require proof before they conclude that parents have mistreated children. A supervisor must sign off on the decision, said Joanne Gibbens, an agency program administrator.

Under state policy, “a substantiated finding is one where the available facts indicate a child suffered harm as a result of abuse or neglect.” If a worker can't determine what happened, or if there are no facts to support the allegation, the case is supposed to be closed as “not substantiated.”

But often situations are muddy. In Ruby's case, a teenage relative in 1995 accused him of having sex with her, but there was no physical evidence, the lawsuit said. At the time the girl was struggling with mental problems and drug use and had made inconsistent statements, the lawsuit said. Ruby has a criminal record of assault and theft, a database of court records shows, but nothing sexual. He cooperated with law enforcement and passed a polygraph test, his lawyer said.

People labeled as abusers were sometimes not told about the decision or didn't know they could appeal, although the state's child protection agency, now OCS, has had a general grievance procedure since 1990, Gibbens said.

State policy on whom to notify and how has evolved over the years. In 1978, parents were supposed to be told of their right to a fair hearing, but that wording dropped out of later policy revisions. OCS only clearly spelled it out in June 2004, to comply with a federal law, Gibbens said. Now parents and others who are accused must be notified of an investigation's outcome, and the accused also must receive a written notification of how to appeal.

Ruby said he didn't even know there was an OCS case against him until 2003, eight years after the complaint. That's when his girlfriend, whom he since married, became embroiled in a custody battle over her own children and a custody investigator found the old case. The state sent the girlfriend, who's now Rebecca Ruby, a letter threatening to take away her children if they were around Ruby unsupervised, Kirk said. Rebecca Ruby said she believed her husband's denials and stood by him. The children's father became alarmed and disappeared with the kids, she said.

Ruby finally appealed last year after hiring Kirk. The lawyer said the appeals procedure was extremely limited. A grievance panel, composed of two OCS workers and a school nurse, considered only whether the investigator followed proper procedure, not whether the substance of the abuse claim was true. Plus, the lawyer wasn't able to call or subpoena witnesses, unverified information in the file was accepted as fact, and the proceeding wasn't tape recorded, the suit said.

The settlement, signed in late December, says the Office of Children's Services will create a new procedure to ensure people are treated fairly, in part by making sure they know of the abuse or neglect finding and how to appeal it. The state now must write regulations, which can take months. In the short term, people who want to challenge newly issued abuse or neglect findings will be able to choose between the existing grievance procedure or an independent review by the state Office of Administrative Hearings.

OCS hasn't cleared Ruby's name but did agree he could fight the blacklisting at an administrative hearing yet to be scheduled. In addition, Ruby was awarded $5,000 plus attorney fees of nearly $9,000 for Kirk.

The abuse or neglect label essentially sticks throughout one's life; OCS destroys the records 75 years after the child turns 18, Gibbens said.

A finding of abuse or neglect can affect jobs too. People are barred from serving as foster parents or working in child care or residential children's services if they have such a history.

The state never admitted its existing grievance procedure is flawed.

The interim option for an independent review doesn't apply to people already labeled as perpetrators or those who have vetted their case in criminal or civil court, the settlement says.

People who worry they may be the subject of an old complaint can call their local OCS office to find out, Gibbens said.

OCS is a powerful and controversial agency, as are its counterparts all over the country. In the 12 months ending June 30, it received 9,543 reports of children believed to be in danger. Serious situations, in which the children are taken away because of beatings, or sexual abuse, or their parents' chronic addictions, are overseen by judges. Other cases involve minor neglect or abuse, or aren't substantiated at all.

If an investigator finds child abuse or neglect, the agency can provide in-home help, send parents to outpatient treatment, close the case with no services, or take the children and make the parents prove themselves fit through extensive counseling, parent training, substance abuse treatment and other therapies. Some lose their kids forever.

Soon, the state will be able to tap into abuse and neglect histories even more efficiently. Under a law that passed last year, the state must create a central abuse registry where all the histories will be recorded, along with cases of exploitation, medical assistance fraud and mistreatment of the elderly, said Stacie Kraly, chief assistant attorney general.

Proposed rules to put Alaska's new registry into effect will give people a right to appeal before they are ever listed, Kraly said.

“It is rife with due process protections,” she said.

Most states operate some kind of central registry, and they've been controversial. Some states have failed to give parents a fair chance to challenge the information, said Richard Wexler, executive director of the National Coalition for Child Protection Reform, in Alexandria, Virginia. “What you end up creating is a statewide database of rumor and innuendo,” he said.

In New York state, about 2 million people were on the child abuse registry when attorney Carolyn Kubitschek won a class action lawsuit to reform it in 1994. Before then, people could appeal to clear their name only when they were fired or denied a job. And three-quarters who appealed won, she said.

Just how many people has Alaska found to be abusive or neglectful over the years? No one at OCS could say. How many appealed under the grievance procedure? The agency doesn't know that, either. OCS doesn't even know how many cases of child abuse it substantiated last fiscal year, which ended June 30, 2005. A case management system put into place in 2004 cannot yet produce such reports, but it should be able to by March, Gibbens said.

Daily News reporter Lisa Demer can be reached at ldemer@adn.com or (907) 257-4390.

Top

| Chapter 8 — Child “Protective” Services — Who's Minding The Minders? |

| Next — Could Your Kids Be Given To 'Gay' Parents? by Stephen Baskerville, Ph.D. |

| Back — Child Welfare Costing Illinois Taxpayer's Millions by Elaine Hopkins |

Added February 1, 2006

Last modified 4/20/20