Assessing the Feasibility of Creating and Maintaining a National Registry of Child Maltreatment Perpetrators: Research Report. APPENDIX E. State Comparison of Select Due Process Requirements

This table provides a summary of State survey responses relating to critical Due Process of Law issues, often addressed in court cases challenging the operation of State data repositories. Answers in each field reflect survey responses from States, cross-tabulated with each other, as well as staff-performed statutory and case law research. "Yes" and "no" responses reflect State answers to the survey or answers found through staff-performed case law or statutory research. "Does not specify" answers reflect that statutory research was conducted and statutory language addressing the question was not identified. State policy, regulations or rules were not reviewed. "Missing" answers mean that the State did not participate in the survey and staff did not conduct research to answer the questions.

Requires Preponderance of the Evidence Standard for Substantiation

Thirty-three States reported that they use a "preponderance of the evidence" standard or higher to substantiate a maltreatment finding. Nineteen States reported that they use some lower standard, such as "credible evidence" or "reasonable cause." Some courts, such as the Second Federal Circuit and the Supreme Courts of Missouri and Hew Hampshire, have required that the "preponderance" standard be used before any name is placed on a State data repository. However, other courts in the Seventh Federal Circuit and Illinois have upheld lower standards, as long as other conditions are met.

Notice of Designation on Data Repository

Thirty-one States reported that they notify individuals that they will be designated (placed) on the State data repository. Sixteen States reported that they did not provide such notification, and four States indicated that they notified individuals only under certain circumstances. Several State Supreme Courts have held that to satisfy due process, States must provide alleged perpetrators with specific notice of the allegations before their names are placed on a State data repository. However, one case, an unpublished State court opinion in California, has held otherwise.

Right to Challenge Designation on Data Repository

Twenty-eight States offer at least one level of review for alleged perpetrators to challenge designation on a State data repository. Only one State indicated that they do not. However, 17 States did not respond to this question. Federal courts in the Ninth Circuit and the Federal District of New York have struck down State data repositories as unconstitutional that had nonexistent or significantly delayed review processes.

Placement on State Data Repository during Appeal of Designation

Nineteen States reported that they placed individuals’ names on the State data repository while there was an appeal pending of their designation. Ten States reported that they did not add a name to the repository while an appeal was pending. Twenty States did not specify whether they did or did not delay placement on the repository while an appeal was pending. Several State court cases have required hearings before individuals are placed on State data repositories in certain circumstances (e.g., when their employment is at stake).

 

Appendix E: State Comparison of Select Due Process Requirements
STATE REQUIRES PREPONDERANCE OF THE EVIDENCE STANDARD FOR SUBSTANTIATION
Is the state required by case law, statute or policy to use a preponderance of the evidence standard or higher when making the substantiation decision?
NOTICE OF DESIGNATION ON DATA REPOSITORY
Is the state required by case law, statute or policy to notify individuals that they will be designated a perpetrator on the state data repository?
RIGHT TO CHALLENGE DESIGNATION ON DATA REPOSITORY
Is a first level of review provided for a person to challenge being designated a child maltreatment perpetrator in the data repository?
PLACEMENT ON STATE DATA REPOSITORY DURING APPEAL OF DESIGNATION
Does case law, statute or written policy allow an individual to be added to the state data repository while the first level of review of designation on the state data repository is being conducted?
Alabama Yes Yes Yes No
Alaska No No Missing Does not specify
Arizona No Yes Once found to have committed abuse or neglect by a preponderance of the evidence or probable cause standard of evidence, perpetrator is automatically placed on the Central Registry. No
Arkansas Yes Yes Yes Missing
California Yes Yes According to Humphries v. County of Los Angeles (9th Federal Circuit, 2009), California's repository violated due process by failing to afford persons listed a fair opportunity to challenge allegations against them. Does not specify. According to Kindler v. Manheimer (unpublished opinion, State Court of Appeals, 2007), notice to a suspected perpetrator is not required until after the agency places his name on the repository.
Colorado Yes Yes Yes Yes
Connecticut No Yes Yes Yes
Delaware Yes Yes Yes Does not specify
District of Columbia No Yes Missing Does not specify
Florida Yes No There is no statewide policy, process or procedure for a person to challenge the finding that he/she is a perpetrator of child abuse and neglect. There may be local protocols whereby if a person challenges a finding, there is a review of written documentation by an individual at the agency at a higher level than a caseworker or supervisor. There is no formal appeal process for any administrative/agency finding. However, the department is in the process of establishing a formal due process appeals procedure. Does not specify
Georgia Yes No No data repository Missing
Hawaii No No Missing Does not specify
Idaho No No Missing Does not specify
Illinois No Yes Yes Yes
Indiana Yes Yes Yes Yes
Iowa Yes No Missing Does not specify
Kansas Yes Yes Yes No
Kentucky Yes No Missing Does not specify
Louisiana Yes Yes Yes Yes
Maine No Yes Yes Yes
Maryland Yes Yes Yes No
Massachusetts No No Massachusetts did not participate in the legal survey. Pease v. Burns (Federal District Court, 2010)) provides some evidence that the State provides individuals an opportunity to challenge their designation. The case found that a several year delay in scheduling an appeal hearing violated due process. Does not specify
Michigan Yes Yes Yes Yes
Minnesota Yes No Yes Yes
Mississippi No No Missing Does not specify
Missouri Yes Yes Yes Yes. However, the State reported that the person could not be designated pending the appeal of the maltreatment determination.
Montana Yes No Missing Does not specify
Nebraska No Yes Yes Yes
Nevada No Yes Yes Does not specify
New Hampshire Yes Yes Yes No
New Jersey Yes Yes Yes Does not specify. However, the State reported that an individual could be designated on the repository when there is a substantiated finding.
New Mexico No Yes No Does not specify. However, the State reported that a maltreatment finding is sufficient to document the case in their FACTS system.
New York No Yes Yes Yes
North Carolina Yes Only those individuals determined to be responsible for abuse and serious neglect as defined in statute as the result of a CPS Investigative Assessment. Yes No
North Dakota Yes Yes Yes Yes
Ohio Yes No Determined by each agency's policy Does not specify
Oklahoma No No Yes Yes
Oregon No Yes Yes Yes
Pennsylvania Yes No Pennsylvania did not participate in the legal survey. C.E. v. Dept of Public Welfare (State Commonwealth Court, 2007) provides some evidence that the State provides individuals an opportunity to challenge their designation. The case found that individuals must be given a fair opportunity to cross-examine witnesses at hearings to challenge placement on the repository. Does not specify
Puerto Rico Yes Yes Yes Yes
Rhode Island Yes Missing Missing Missing. However, the State reported that an individual could not be designated on the repository pending an appeal of the maltreatment determination.
South Carolina Yes Childcare, foster care, residential group care and institutional cases require notice. All others are entered on the Central Registry only after a court order. Yes Yes
South Dakota Yes Yes When the designation is based on the investigation by the Division of Child Protection Services, the individual can request a review. When the designation is based on a court finding, the individual does not have the right to a review. No
Tennessee No Yes Yes Yes. However, the State reported that an individual could not be designated on the repository pending an appeal of the maltreatment determination.
Texas Yes For CPS cased no notice is required. For child care licensing, notice is required by policy. Yes Yes
Utah No If the Division makes a supported finding that a person committed a severe type of abuse or neglect, it must notify the individual that his name has been listed in the licensing information system. Missing Yes
Vermont No Yes Missing No
Virginia Yes Yes Yes No
Washington Yes Yes Missing Does not specify
West Virginia Yes No Missing Does not specify
Wisconsin Yes No Missing Does not specify
Wyoming No Yes Yes No

 

Endnotes

[1] Puerto Rico was not recruited for the Prevalence Study due to a lack of Census migration data between it and the 51 States (including the District of Columbia) necessary to model national estimates.

[2] New Mexico supplied data for an earlier pilot of the prevalence study, but was unable to participate in the actual study. The pilot data were used in analyses to identify perpetrators who had moved to other States, but no 2009 data were available to estimate interstate perpetrators in New Mexico itself. That estimate was modeled as for nonparticipating States.

[3] U.S. Department of Health and Human Services, Administration on Children, Youth, and Families, Children’s Bureau. (2010). Child Maltreatment 2009 Available from http://www.acf.hhs.gov/programs/cb/pubs/cm09/cm09.pdf.

[4] This is based on a finding that 16.7 percent of child victims of maltreatment had been revictimized within 5 years. Cited in U.S. Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation. (2009). Interim Report to the Congress on the Feasibility of a National Child Abuse Registry. Washington, D.C. p. 16.

[5] Molloy, R., Smith, C., Wozniak, A. (2011). Internal Migration in the United States. Table 1. Finance and Economic Discussion Series, Divisions of Research and Statistics and Monetary Affairs, Federal Reserve Board, Washington, D.C. paper 2011–30.

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