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Pennsylvania child abuse registry posts names before due process

| Sunday, May 22, 2011

In Pennsylvania, a parent can be branded an abuser for spanking a child, and then remain on a state list with pedophiles and felons without the benefit of a court hearing, attorneys say.

"The process puts the cart before the horse," said Aaron Martin, a constitutional attorney with a private practice in Kennett Square, Chester County. "You are first declared guilty by the state, and then it is up to you to challenge that indication to assert your innocence."

Under state law, child protective service agencies such as county Children and Youth Services must investigate all reports of child abuse within 24 hours. When a social worker or police officer deems a report to be valid, law requires the immediate — and permanent — placement of the suspect's name on the state child abuse registry, regardless of whether police ever charge the person with a crime.

Pennsylvania's registry contained 112,580 names last year, the most recent figure available. Registry information is confidential and unavailable to the general public, but school districts, day care centers and other child service groups can use it to screen potential employees. The only way a name can be expunged from the registry is through an appeal hearing, attorneys said.

"The intent is to protect children from future abuse or neglect," said Cathy Utz, interim deputy secretary of the state Department of Public Welfare's Office of Children, Youth and Families, which maintains the registry.

Attorneys advocating on behalf of people who contend they were improperly placed on the registry said their main concern centers on what the state terms "indicated" determinations of child abuse. That's when a social worker — not a law enforcement official or judge — decides an abuse report is valid. Social workers base those decisions on an investigation, which can include medical evidence or a suspect's admission, according to the welfare department.

Nearly 88 percent of the names listed on the registry are there based on the decisions of social workers. State welfare officials said people suspected of abuse are afforded due process through appeals, and the department made system improvements over the years. Letters that are automatically sent to abuse suspects notifying them that their names are being entered into the registry and informing them of their rights were redesigned to more clearly outline those facts. The department includes abuse reports in the letters.

An officer from the welfare department's Bureau of Hearings and Appeals conducts the appeals hearings and decides the cases. Last year, nearly 23 percent of the 1,239 appeals hearings led to removal of names, according to department statistics. One percent of the decisions were upheld. Two percent of the appeals were withdrawn by appellants, and three percent of appellants were denied hearings. Seventy-one percent of the cases are pending.

Michael Race, a spokesman for the state Department of Public Welfare, said hearings take three to seven months, on average, and sometimes longer because of attorneys' postponements and procedural delays.

Attorney advocates complain the system denies people the constitutional right of due process by first placing them on the list, and the appeal process to seek removal takes too long — up to two years in some cases.

Even child advocates see potential problems.

"The registry has to be understood, and people have to have a very timely way to have their names removed so that we can assure fairness and justice," said Cathleen Palm, co-founder and executive director of the Protect Our Children Committee, a statewide coalition of child advocates. "If people don't trust the system, then, ultimately, we can't have the safest system for kids."

Some lawmakers have taken notice.

Sen. Kim Ward, R-Greensburg, who chairs the Aging and Youth Committee, said the committee plans to hold hearings this summer on problems with ChildLine, a 24-hour, state-operated hotline for reporting child abuse tips. She said the hearings should include discussion of any problems with the registry.

"First and foremost, we want to make sure the kids are protected," Ward said. "But we don't want to have people out there who haven't had their just due process. This is something that I will be following up on."

Sen. Ted Erickson, R-Newtown Square, Delaware County, introduced legislation two years ago that would have required holding hearings within 30 days of an appeal and ruling on a case within 45 days. His bill died because it lacked Senate support.

"We're going to try and take a look to see if we can get more support, and I will introduce it if we can," Erickson said.

Critics say legislators and policy makers are reluctant to change the system because they do not want to appear soft on child abusers.

"Over the years, we have tried to address this subject with legislators, and it's a politically touchy subject with them," said Janet Ginzberg, an attorney with Community Legal Services of Philadelphia who has defended numerous people accused of child abuse.

By law, people found guilty in court of child abuse cannot work with children for at least five years after a conviction.

Utz said schools or child care agencies must get permission from a job applicant to check whether that person is on the registry. She noted that "indicated" reports alone cannot legally prevent a person from getting a job.

But Sara Rose, a staff attorney with the American Civil Liberties Union in Pittsburgh, said chances of employment are slim when a person's name appears on the registry.

"There's no law prohibiting a child agency from hiring someone on this list, but I think it's a very low chance that you're going to be hired," Rose said.

Attorneys typically use pseudonyms or initials in lawsuits to identify clients suing to have their names removed from the registry. They said they do it to maintain confidentiality.

"I think people are understandably reluctant to be identified," Rose said.

Pennsylvania's child abuse registry isn't the only one drawing criticism.

A North Carolina appeals court last year declared that state's registry unconstitutional because it did not permit accused abusers hearings before they were listed, The Associated Press reported. Attorneys in New York filed a class-action suit in that state on behalf of thousands of people for the same reason.

Reports of flaws on the state level are delaying the creation of a nationwide child abuser database that Congress authorized in 2006.

"There's been litigation in a number of states over the years around due process and central registries," said Howard Davidson, director of the American Bar Association's Center on Children and the Law. "The best due process would be to withhold (entering a person's name) until an appeal has been resolved."

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