Florida Abuse Registry Loses in Federal Court

Jeff Whalen^*

A federal judge in Tallahassee, Florida ruled last year that the "indicated-perpetrator unknown" classification of Florida's abuse registry is unconstitutional.  Judge Maurice Paul granted the motion for summary judgment because "Florida Statute 415.504 is facially unconstitutional as it does not provide any procedural safeguard or due process."  The relevant part of FS 415.504 read: "Any person named in an indicated report shall not have the right to challenge the department's classification system through the department or through administrative hearing" (emphasis supplied by judge).  The ruling resulted from a lawsuit by the Florida Teaching Profession-National Education Association (FTP-NEA) in behalf of three educators and the entire class of 211,000 persons listed on the "indicated" category of the abuse registry computer.  Judge Paul's October, 1990 ruling opened the door for 211,000 lawsuits against the Florida Department of Health and Rehabilitative Services (H.R.S.).  The Florida Legislature, during the spring, 1991 session, removed the "indicated-perpetrator unknown" classification from state law books in order to avoid substantial litigation costs.

Two years and two months after the horror of a false accusation, our teachers' union lawyer handed over a $25,000 check from the state of Florida.  My wife's award for damages resulted from an out of court settlement over wrongdoing by child protection services.  But there has been no admission of wrongdoing or apology from the perpetrator of a child abuse industry.  Money cannot change the hell that ambitious, self-serving bureaucrats have put us through.  Victory in federal court and the ensuing change of Florida Statutes is small consolation for my family's two-year nightmare of a false accusation.  Writing this article is one more example of how my life is still consumed by the ordeal.

Our success at obtaining justice is the exception rather than the rule for over half a million Floridians caught up in the abuse registry web. After joining other victims in our local lobbying and support group, Citizens for Reform of Child Abuse Laws, Inc. (C.R.C.A.L.), my wife Nancy and I have come to realize that many people have suffered much more than we have due to a false accusation.  The founder of Tallahassee's C.R.C.A.L. has watched her husband's health deteriorate in prison for four years as the judicial appeals process creeps along.  The scales of justice are cautious concerning the appearance of "being soft on child abuse."  Two other cases of incarcerated innocents are apparent within our small group of a few dozen persons in this medium size community.  Even in cases that are not prosecuted, the emotional and psychological scarring of individuals and families is difficult to measure.  Most victims of system abuse hesitate to come forward and discuss their ordeal.  A common statement by child protection workers, as shared in our support group discussion sessions, is "we can take your child(ren) if you don't cooperate" — a powerful disincentive to question authority. Non-cooperation often means not confessing to allegations.  Child protection workers call it "denial."

James and Mary Seay of Jacksonville, Florida were visited by H.R.S. abuse investigators concerning an infant with black eyes whom they allegedly picked up by the neck and would confine in their bathroom.  Whoever called this complaint to the toll free abuse hotline neglected to mention that "Princess" was a raccoon.  The Seays explained to CPS that their children were grown and it was necessary to pick up their raccoon by the neck to avoid being bitten.  Two days later, an H.R.S. worker called the Seays offering child abuse counseling to help them cope with stress.  After repeating that Princess was a raccoon, the Seays were told that they couldn't be helped if they persisted in their denial.  They were instructed to attend counseling or charges would be filed against them.  Upon arrival at the H.R.S. office complex, they were informed by virology and security personnel that Princess would have to be killed to check for rabies.  Why else, reasoned H.R.S. workers, would a raccoon be brought to their offices unless a rabid bite was suspected.  Finally, James and Mary and Princess convinced child protection investigators that they were victims of a prank call to the abuse hotline.  They received an apology for their inconvenience but were listed in the "unfounded" category of the abuse registry computer for 30 days as required by Florida law.  Had their ordeal occurred during the previous year, before statutes were changed, Princess would have been listed in the "unfounded" category for one year.

In 1988, H.R.S. centralized its statewide abuse reports with a highly advertised, anonymous, toll-free hotline and a seven million dollar computer to classify investigated reports of abuse/neglect.  Florida Protective Services System (F.P.S.S.) statistics for FY '89-'90 reveal that nearly 110,000 reports of abuse/neglect were closed during that period.  Prior to centralization, abuse reports were handled in 11 districts statewide.  Of the three classifications for reports closed that year, "unfounded" accounted for 57%, "indicated" for 29%, and "confirmed" for 13%.  The majority of "confirmed" cases were overturned on appeal or arbitrarily reclassified to indicated due to lack of evidence.  There was no appeals process afforded to persons listed in "indicated" reports.

A report of abuse/neglect that was classified "unfounded" maintained the investigated child's name in the registry computer for one year.  The purpose for keeping unfounded reports was "to track patterns of abuse," according to child advocates.  A report classified "indicated" was maintained for seven years in the computer.  Indicated reports were indexed by the name of the alleged victim and included any other person named in the investigation, listed alphabetically as "significant others."  Indicated reports covered the gray area between unfounded and confirmed reports and were defined in the law books as "when an investigation determines that some indication of abuse or neglect exists."  A report classified "confirmed" maintained the name of the confirmed perpetrator in the computer for 50 years and disqualified that person from employment with children or the disabled.  A background check is available to potential employers and is required by law for certain jobs.

Statutes aimed at confidentiality defined who had access to such reports.  Depending on classification, reports are accessible to as many as 12 specified agencies or groups: child protection, law enforcement, the state attorney. courts, professional regulatory agencies, various state administrators, hearing officers, bona fide researchers and potential employers.

A chronic failure by H.R.S. to abide by confidentiality laws contributed to the successful FTP-NEA lawsuit.  The federal judge's ruling agreed with that part of the motion which read "such information (confidential reports) is then 'published,' giving rise to the 'stigma' attached to being labeled an abuser."  Previous breaches of confidentiality were so blatant that those legal precedents were successfully argued to hold H.R.S. Secretary Greg Coler personally responsible for misuse of registry information and denial of due process.  The federal judge acknowledged Coler's failure to abide by several previous orders by state judges to correct abuse registry violations.  The teachers' union had prevailed in state court several times at considerable expense, only to be ignored by H.R.S.  The class action suit in behalf of 211,000 "indicated" citizens and the personal liability of Secretary Coler was a strategy that finally got the state's attention. FTP-NEA lawyer Ron Meyer was correct to recognize the pocket as the most sensitive nerve.

My wife's false accusation was a classic case of CPS bungling and provided a strong argument for the union lawsuit.  Suggestive interviews by a CPS investigator produced inconsistent allegations of an impossible incident from a child who admitted lying and being coached.  Nevertheless, the case was confirmed against my wife but she wasn't notified until nine months after her school, county, school board, and state teacher certification office were all sent the erroneous report.  Only after the lawsuit was filed did Nancy receive notice that she was a confirmed perpetrator — H.R.S. "was sorry for any inconvenience."  The appeals process can begin only after a confirmed perpetrator receives formal notification and the accompanying explanation of procedure.  We finally requested an appeal but the case was overturned upon review and arbitrarily reclassified as "indicated" by a mid-level bureaucrat.

Arbitrary reclassification from confirmed to indicated, upon appeal, was a routine procedure by H.R.S. that enhanced department statistics.  By shifting weak confirmed cases to the unappealable indicated category, a higher percentage of confirmed cases survived appeals and remained confirmed.  Deputy director of F.P.S.S. George Hinchliffe bragged that "85% of Florida's confirmed abuse cases stay confirmed, that's much better than the 50% conviction rate for serious crimes in 1986."  Major Florida newspapers researched and interpreted H.R.S. statistics quite differently.  The Orlando Sentinel found that 57% of "confirmed abusers" who took their case to an administrative hearing officer outside H.R.S. had the finding overturned and their names ordered expunged from the registry.  Newspapers in Jacksonville and Fort Lauderdale reported 92% of appealed cases were overturned during a six month period.  The procedure of reclassifying reports upon appeal was also a method of dealing with an overwhelming number of appeals by an overburdened system.

Florida's abuse registry was controversial prior to the issues raised in federal court.  State legislators were troubled to learn from constituents that over 60,000 unfounded reports were annually listed for a year.  The one year retention of unfounded reports was changed to 30 days in June, 1990 after one C.R.C.A.L. family lobbied our local representative. C.R.C.A.L.'s lobbying efforts have been most successful when working with rational legislators and pragmatic issues.  Self-proclaimed "child advocates" are often emotionally motivated and not receptive to suggestions.  Child protection is a sensitive issue for politicians.  Nobody is for child abuse but we all should want effective child protection.  But some legislators and self-proclaimed child advocates cling irrationally to bad laws and help set the stage for failed child protection services and lawsuits against the system.  One representative argued against reducing unfounded reports from a year to 30 days because "there would be no way to track the 10% of unfounded reports that show up again."  The statistic that 10% of unfounded reports are repeated does not "track patterns of abuse" so much as it reveals the prevalent and pervasive reporting in Florida — sometimes malicious.  A news article in the St. Petersburg Times reported that one in 12 Floridians has been involved in an abuse investigation.  The doubling of abuse from 1983 to 1987 in Florida does not reflect an increase in abuse of much as the hysteria surrounding abuse.

The policy of tracking patterns of abuse by amassing computer lists of unconfirmed cases hurts both child protection and the falsely accused.  The cycle of child abuse hysteria, over-reporting, unconfirmed cases, and wasted resources contributes to impossible caseloads, overburdened caseworkers, sloppy investigations and false accusations while real abuse is often overlooked and neglected.  One family's painful experience with a false accusation started with multiple malicious reports called in by an emotionally disturbed relative.  The reports of abuse and neglect were closed unfounded but the sheer number of reports resulted in an "indicated" listing for the whole family of mom, dad and four kids.  Several years later, the father was falsely accused of improper touches by three female students at the middle school where he coached physical education.  One girl later admitted the conspiracy "to get coach fired" because they received bad grades.  Meanwhile, investigators pursued the case very aggressively and suspiciously because of previous unconfirmed reports on the family.  The family was separated with dad in jail, the youngest daughter was taken from her school (without family knowledge or permission) for physical exams and suggestive interviews, and the mom was told by zealous investigators that her husband was a sick pedophile and until she cooperated, she was protecting him.  Three months and five hearings later, CPS lost their case and the family was reunited.  But the office of state attorney had committed its resources to the sensational, high profile case of a teacher accused by students and couldn't back off without losing face.  Several more months and $75,000 later, the coach was acquitted of criminal charges.  "The system works" we are told.

Many people caught up in the abuse registry web are not victims of a malicious false accusation or prank calls to the abuse hotline.  They are victims of well-intentioned but not well-thought-out laws and an unresponsive bureaucracy of overzealous, undertrained workers.  One C.R.C.A.L. family was investigated and the youngest daughter listed unfounded for one year after their pediatrician reported "neglect."  The parents were concerned about their daughter's one and a half years of nearly continual antibiotic therapy for chronic ear infection and chose not to fill a prescription.  The pediatrician is required by law to report neglect in such cases.

All of those persons included in the legal definition of "primary caregiver" (of children) can be prosecuted for not reporting a suspicion, no matter how slight.  Those required by law to report suspected abuse or neglect are sometimes faced with the conflict of which channels to use.  A teacher was scolded by CPS for reporting a potential problem to the school principal, through the public school's channel, instead of reporting directly to CPS.  Far reaching laws combined with our liability conscious society contribute to over reporting.

Amid the controversy, Florida has moved toward a new and improved CPS and social services in general.  The legislature has provided more child protection laws and our new governor is fulfilling his campaign promise to reorganize H.R.S.  Within a month after the FTP-NEA lawsuit was filed, legislators created a fourth registry category, "proposed confirmed," which included a new appeals schedule.  That attempt to address the due process issue and thus intercept the lawsuit failed due to the folly of retaining the old "indicated" category.  "Indicated" was soon to be ruled unconstitutional.  We will be watching to see if the new appeals procedure can provide the due process that the old appeals procedure failed to provide.  An executive/legislature mandated task force has reorganized H.R.S., shifting decision making from the state capital to 15 district planning bodies.  Even the name "Health and Rehabilitative Services" has been targeted for a public relations change.  "Rehabilitative" is considered and inaccurate and uncomfortable terminology in the social services lingo.  Governor Chiles has asked Floridians to suggest a new name for H.R.S. in keeping with his decentralized, grassroots approach.

Many are skeptical that top-down restructuring will improve social services.  As we pointed out in a C.R.C.A.L. recommendation, the erroneous theory and method of CPS, employed from the bottom up, remains unchanged.  CPS interviewers are still trained with axioms like "err on the side of the child" or "disclosure requires many (suggestive) interview sessions" or "believe the child no matter what."  A monopoly of professional doctors, psychologists, and therapists contracted to state services has acquired a vested interest in child abuse and perpetrates the "quantity not quality" approach to child protection.  We recommend broadening the pool of state contracted professionals to achieve objectivity in working with abuse.

Many good bills introduced in the legislature would bring accountability to CPS but they were voted down for various reasons.  A bill removing anonymity from allegations and providing for prosecution of malicious accusations was defeated.  The anonymous, highly advertised, toll-free abuse hotline is an invitation to mischief and nobody has ever been held accountable for false reporting in Florida.  Another bill provided compensation for the legal fees incurred by persons who prevail in their appeals and prove their innocence.  That bill was defeated because of the prohibitive cost of such compensation, yet Florida's eight billion dollar social service agency is purportedly the largest in the nation.

Rational, accurate, effective child protection could save many wasted resources and reduce the large number of unnecessary appeals at the same time.  There is much work to do.