Sunday, December 21, 2008

Concerns over possible false accusations and long-term consequences

Child Abuse Central Index offers no way out, even for the innocent: An accusation is enough to land people on California's list of child abusers, but only long legal battles can clear their names.
Williams, Carol J. Los Angeles Times, Dec. 7, 2008.

Accused of child abuse by a vindictive ex-girlfriend 22 years ago, Bakersfield stockbroker Scott Whyte ceased contact with their son for years, fearing that another allegation would land him in prison, before a court cleared him.

Craig and Wendy Humphries went to jail after a rebellious teenage daughter fled to Utah and told police there that her father and stepmother had abused her. While the Valencia couple were locked up in Los Angeles County on charges eventually ruled groundless, their two younger children were placed in foster care.

Esther Boynton, a Beverly Hills lawyer who helped Whyte and the Humphrieses fight to clear their names, had her own hellish experience getting off the state's Child Abuse Central Index, a database containing 819,000 names from which even a judgment of innocence isn't enough to secure removal.

Unlike the better-known database created by Megan's Law, which registers and tracks 63,000 named sex offenders, the child abuse index is neither actively managed by the state nor periodically purged of erroneous or unsubstantiated entries -- despite efforts by the wrongly included to escape its shameful stain.

The California Department of Justice has been ordered in at least three court decisions in recent years to create a standard way to remove from the index the names of those exonerated by courts or social service investigations.

But in response to the latest judgment, a U.S. 9th Circuit Court of Appeals ruling last month that the Humphrieses' privacy rights had been violated, the Office of the Attorney General plans another appeal in defense of the state's handling of the database.

Whyte, 59, looks back on a life irreparably damaged by the abuser label and the threat of punishment for a crime he didn't commit.

When the mother of his then-4-year-old son made the false allegations against him in 1986 and Kern County authorities put his name in the abuser index, Whyte said, his initial anger "quickly gave way to complete terror."

The mother's report was made during a veritable witch hunt that grew out of child abuse allegations against day-care workers in the county throughout the 1980s.

"The atmosphere was such that if you were accused, you might as well turn yourself in to prison and look to spend the rest of your life there," Whyte recalled.

For months after learning of the report, Whyte so feared his arrest was imminent that he left a blank check and the deed to his house with a relative to post bond for him.

"I just couldn't believe that this could happen to a person in this country, that [authorities] would destroy families with nothing but a phone call," said the father who protected his liberty at the cost of any relationship with his son. "There are not any words strong enough to describe that situation, the shame, the travesty. Somebody ought to be shot."

The Humphrieses, still listed as abusers, "are living every parent's nightmare," the appeals court said. It ruled the state in violation of the 14th Amendment because people in the index aren't given a chance to challenge the allegations against them.

The couple's ordeal began in March 2001, when Craig Humphries' 15-year-old daughter from a previous marriage took their car without permission and drove to Utah, where her mother and stepfather lived. She told them she had been abused since being sent to California nine months earlier, and a Utah emergency room doctor who examined the teen reported to Los Angeles County authorities that she had "non-accidental trauma with extremity contusions."

On the basis of that one phone call, the Humphrieses were arrested, jailed and charged with felony torture. The arresting sheriff's deputy filed a "substantiated" child abuse report that got them entered in the index. Their two younger children were placed in protective custody.

"My clients didn't have any idea where their kids were," said Boynton, who, because the case is still in litigation, has advised the couple against discussing their ordeal with The Times.

The Humphrieses got their children back about 10 days later, and California medical records proved that the daughter's bruises were the result of surgical removal of melanoma.

"The Humphries have taken advantage of every procedure available to them, including the California courts," Judge Jay S. Bybee wrote in the 9th Circuit Court opinion. "They went to the dependency court, which found that the allegations were 'not true' and returned their children to them. They went to the prosecutor, who dropped all the charges against them. They went to the criminal court, which declared them 'factually innocent' and sealed their arrest records. None of this had any effect on their CACI listing."

Wendy Humphries, a teacher, had to hire an attorney to avoid losing her credentials, because employers of people who work with children are required to consult the index. The list can be accessed by educational, child-care, adoption, foster-care and child-welfare agencies throughout the country and is referenced about 400,000 times a year, said Abraham Arredondo, spokesman for the attorney general's office.

Boynton landed in the child abuse database in 1990 after accidentally splashing her 17-year-old daughter with hot coffee. She learned three years later, when applying to volunteer as a reading tutor, that the Los Angeles Police Department had reported her to the state based on her expressions of remorse to emergency room personnel for the burn on her daughter's shoulder.

It took two years and much expensive litigation to get their names expunged from the index, and Boynton remains suspicious that distorted records of the incident still linger elsewhere.

The state agreed to make individual changes in its listing, notification and challenge practices in Whyte and Boynton's cases and in a negotiated settlement with Amelia Gomez, a Los Angeles woman denied custody of her grandchildren because of index errors.

"We have an order requiring them to rewrite the regulations. As far as we know, they haven't done anything to comply with it," David Greene, a lawyer with the First Amendment Project in Oakland, said of the state court ruling a year ago that the index violated constitutional privacy guarantees.

Among the changes the state agreed to were the rights of named individuals to see their government dossiers, to challenge inaccuracies and to have their versions appended to the records.

"To the extent you want this index to serve some function, to have usefulness, it has to be accurate," Greene said.

The law now requires that anyone added to the abuser index be notified, but the lawyers say decades of secrecy in compiling and maintaining the list created in 1965 probably means many on it are unaware of their inclusion and the need to pursue removal.

Those listed can now demand a hearing among officials of the reporting agency, whether a county child protective services office or law enforcement.

But the standard of proof of wrongdoing remains so low and the pressure to continue identifying any potential abuser so high that the hearings are often "almost worthless," said Peter Sheehan, a lawyer with the Social Justice Law Project in the Bay Area.

Though the intent of the index was noble in seeking to protect children, Sheehan said, its value and reliability are compromised by its flaws.

A halfhearted and piecemeal effort a few years ago to update the index showed significant error rates -- more than 20% in some counties -- among the few reporting agencies that carried out the reviews, Sheehan said. The 9th Circuit Court ruling in Humphries vs. County of Los Angeles cited a 2004 review of listings from San Diego County that suggested as many as half were erroneous.

Sheehan called the state's request for 9th Circuit rehearing of the Humphries ruling and the possibility of an eventual appeal to the U.S. Supreme Court "the scary part," in light of the high court's conservative majority and its tendency to rule against claims of government interference with privacy rights.

"What happened to the Humphries could happen again today," said Boynton, noting the state's resistance to reforming its administration of the index. "Ultimately there will be critical mass, and the government will have to fix the system."

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