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Secret list is danger to children -- from DHS
Portland Press Herald Saturday, July 21, 2001
MAINE VOICES: Richard Wexler
Secret list is danger to children -- from DHS
Just when it seems that nothing more that happens in Maine can shock me, something new turns up: In this case, the fact that Maine's lack of due process for people listed in the computerized database of alleged child abusers maintained by the Department of Human Services may well be the worst system in the nation.
I am aware of no other state that both lacks any way to appeal the decision (really the guess) of one caseworker and releases the information to potential employers. (Florida, for example, doesn't allow appeals, but it doesn't release the information either.)
The analysis by a University of Maine law professor, Jennifer Wriggins, that the list does no harm because no one has a right to a particular job, is contradicted by two federal court decisions.
In Valmonte vs. Bane, the U.S. 2nd Circuit Court of Appeals ruled that even though New York state does have an appeals process, it is inadequate precisely because a listing in the state's central register of alleged child abusers almost always deprives the accused of employment in their chosen field. Wriggins may not be aware of such a right, but this appellate court is.
The second decision, handed down by a federal district court in Illinois just three months ago, is even more sweeping. In the case of DuPuy vs. McDonald that court found the entire central register process unconstitutional on a variety of grounds, including the fact that, while it was possible to appeal, the process was incredibly cumbersome and lengthy. The decision, and one of the cases that led to it, were featured on an hour-long special edition of Dateline NBC.
One key point that was common to both cases: It turned out that in both Illinois and New York, when people did manage to appeal, the original finding of abuse or neglect was overturned 75 percent of the time. Perhaps that's the real reason there is no appeals process in Maine.
The Valmonte case was brought by a member of the board of directors of the National Coalition for Child Protection Reform. DuPuy was brought by a former NCCPR board member. Maine Equal Justice Partners is familiar with both cases.
Most alarming, however - but certainly to be expected - is the DHS claim that the issue is one that "balances" rights of parents and children. As it has before, DHS is using children as rhetorical human shields behind which to hide failed policies.
The fact is, depriving people of employment based on rumor and innuendo is enormously harmful to children in a number of ways:
If a parent can't get work, that's going to affect his or her children.
If information based on little more than a caseworker's guess is allowed to pile up in secret files, sooner or later some DHS worker is likely to claim that there is a "pattern" and use that as the basis to take away that person's children.
If unfounded reports are kept on parents, children need protection from the mindless piling up of rumor and innuendo in files about their families. These are files on people who are so innocent that the meager amount of evidence needed for one worker to substantiate the allegation, entirely on her own authority, couldn't be found.
If keeping such reports provides an incentive for people to use the system for harassment. Make enough anonymous calls, set off enough investigations, and sooner or later something is bound to stick. (This is the one place where I disagree with the paper's editorial on this issue. Reports deemed unfounded should be eliminated from DHS files precisely because this information is far more likely to implicate the innocent than the guilty.)
If you make it too easy for a worker to accuse the most convenient suspects, list them as "substantiated" child abusers and move on, there is a good chance that in situations where there really is abuse, the wrong person will be accused - and someone who really is guilty will never be caught.
And, perhaps most important, if children themselves are listed as child abusers. In the DuPuy case the accused was a 10-year-old girl who was accused of sexual abuse after she pulled on the pants of some much younger boys who were "playing doctor" in the day care home run by her family.
As the appeals process dragged on and on, the child became so depressed that at one point she attempted suicide. Perhaps Professor Wriggins can explain how this child was protected by the state.
And finally, as to DHS saying they're willing to set up an appeals process if they get more money: What DHS is in effect saying is this: "We'll make sure terrible things don't happen to you or your family - if you pay us."
This is a protection racket. There should be no surcharge on constitutional rights.
Richard Wexler Executive Director National Coalition for Child Protection Reform 53 Skyhill Road (Suite 202) Alexandria VA 22314 Phone/fax: (703) 212-2006 Website: http://www.nccpr.org/
PPHerald Home: http://www.portland.com/ Copyright © Blethen Maine Newspapers Inc.
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