Kentucky opening secret files to help prevent ‘a mother’s worst nightmare’

To protect children from the people who are paid to care for them, the General Assembly passed a bill this month that will crack open confidential files at the Kentucky Cabinet for Health and Family Services for prospective employers.

Senate Bill 236 will allow parents hiring babysitters — and it will require public schools and publicly funded youth camps hiring anyone who will work with minors — to ask job applicants for a letter from the cabinet that shows whether they are one of the 92,418 people who currently have a “substantiated finding” of child abuse or neglect, as determined by a child protection caseworker. The bill prohibits schools and camps from hiring people who have such a black mark.

Licensed child-care centers already are required to vet their job applicants against the cabinet’s database of people with a substantiated finding of abuse or neglect. In 2016, the cabinet performed 26,608 searches at the request of day care centers. Of those, 211 searches, or not quite 1 percent, turned up a finding.

The bill will take effect in July 2018 if Gov. Matt Bevin signs it into law. (Bevin’s office had not announced his plans for the bill as of Friday morning.) It’s one of several that lawmakers filed during this session either to strengthen background checks for the tens of thousands of people who work with Kentucky children or to create a public registry of people who have been accused or convicted of mistreating them.

“There’s a lot of people out there who don’t have good intentions, who have a history, and I don’t want them working with our children,” said Sen. Julie Raque Adams, R-Louisville, sponsor of the Senate bill.

“My expectation is that if you’re trying to get a job with a school system and you know you have a finding on your record, once you’re told to provide this letter, you’re going to want to save face,” Adams said. “You’ll say, ‘Thanks very much, I’ll get right back to you,’ and then you’ll just move on to another job. You won’t even continue with your application.”

However, critics say Adams’ bill would deny Kentuckians employment because of internal cabinet records that sometimes contain factual errors and offer little due process for those accused of wrongdoing by harried caseworkers investigating families in chaos.

“These findings are often based on someone’s gut feeling. But we’re supposed to be a nation of laws, not digestive tracts,” said Richard Wexler, executive director of the National Coalition for Child Protection Reform.

Unlike a criminal conviction in court, which requires that evidence prove the defendant’s guilt to a judge or jury beyond a reasonable doubt, child protection caseworkers can substantiate a finding of abuse or neglect through “a preponderance of the evidence.” That’s legal jargon for saying it’s more likely than not that the suspect is guilty. Some call it “the 51 percent rule,” because it rests on the assumption that at least 51 percent of the evidence points to wrongdoing.

“You don’t have a trained judge making that finding. It’s an administrative finding by a cabinet worker, with a supervisor looking at it,” the cabinet’s deputy secretary, Tim Feeley, explained to senators at a hearing earlier this month. “Again, the focus there is to protect the children.”

Findings can be overturned through a formal appeal process. But critics say the process is poorly explained and secretly conducted, without informing all parties to a case, and appeals can drag on for years. Even so, about 400 people appeal a finding with the cabinet’s ombudsman in a typical year, with more than half ultimately getting their records cleared.

Among those to fight the cabinet over a finding was a longtime Lexington foster mother named Joyce Givens. In 2009, the cabinet found Givens guilty of neglect because a 15-year-old girl in her care failed to take medicine she needed to protect a transplanted kidney from rejection. The caseworker assigned to investigate acknowledged that the teenager lied to Givens, claiming to have taken all of her pills every morning, until she landed in the hospital.

“As a 15-year-old, it would be hoped that (the girl) would have been capable of understanding the importance of taking her medication as prescribed and shouldering the responsibility to do so. However, this was not the case,” cabinet officials wrote in their order. Still, they wrote, “More rigorous supervision would have prevented the health crisis that occurred.”

Without an attorney, Givens filed a two-sentence appeal with the cabinet, which promptly denied it. Next, with an attorney, she sued the cabinet to get the finding overturned. A circuit judge and the Kentucky Court of Appeals ruled against her, deferring to the cabinet’s appeal process.

“They’re so strict about how you’re supposed to appeal, and yet they’re also so vague about what your rights are and why you’re being denied,” said Gayle Slaughter, Givens’ lawyer. “I don’t like that these findings are made by a social worker who, as far as I know, has no particular legal or investigative skills. I’ve had clients who never even got to see the evidence that was used against them to substantiate a finding.”

‘A mother’s worst nightmare’

Over the winter, state lawmakers heard horror stories about paid child-care workers who deliberately injured the infants they were supposed to be nurturing. In some instances, the workers had undisclosed histories of harming children, parents testified.

“A mother’s worst nightmare just came true,” Lori Brent of Henry County tearfully told the Senate Health and Welfare Committee on March 1, testifying about the babysitter who broke her 4-month-old son’s arm and leg in 2008. “Just because you’re happily married, have a college education, go to church and eat family meals together does not exclude you from child abuse. Our family is proof that child abuse is real and can happen to anyone.”

Lawmakers responded with two kinds of legislation. The first would give parents and other employers access to records identifying people with allegations of child abuse or neglect in their past. The second would require state agencies to create and post online a “child abuse and neglect registry” that anyone could search, similar to the state’s sex offender registry, with names, ages, cities of residence, a description of the offenses and photographs if they are available.

House Bill 47, which was assigned to a committee but saw no further action, would publicize the names of anyone who has a substantiated finding of abuse or neglect. A competing measure, House Bill 129, was written more narrowly to identify only those who have been convicted of various felonies involving children. Essentially, it would compile public court information from 120 counties into one large, easily searchable database.

The House unanimously approved House Bill 129, but it has been stuck for nearly a month in the Senate Judiciary Committee. Two days remain in the 2017 legislative session for lawmakers to pass bills, next Wednesday and Thursday. Senate Judiciary Chairman Whitney Westerfield, R-Hopkinsville, did not return calls seeking comment.

“My argument is that we have a list of bad babysitters, but we aren’t making that list accessible to the public,” said Rep. Dennis Keene, D-Wilder, who initially sponsored House Bill 47 but has agreed to back House Bill 129.

Keene said he hears from many parents whose children were abused by babysitters or day care workers. Some parents, especially single mothers, are reluctant to file criminal charges because they feel guilty for relying on paid caregivers and fear that they will be held partly responsible for the injuries to their child, he said.

“This is something that I suspect happens a lot more than we know,” Keene said.

In Jessamine County, Natasha and Joe Sizemore are lobbying for House Bill 129, which carries the name of their daughter, Kylie Jo. Last year, the infant was hospitalized with fractures to her skull, ribcage and leg after a severe beating. Police charged her 35-year-old babysitter with criminal abuse and assault; a trial is scheduled for later this year.

The only job their daughter’s alleged attacker ever held was baby-sitting for families, so it’s likely that even if she is convicted, she will try to resume that occupation after serving her time, the Sizemores said. A registry of convicted child abusers could alert future employers to the woman’s history, they said.

“More often than not, people who abuse children are like sex offenders. They’ll do it again when they get out,” Natasha Sizemore said. “You can’t necessarily stop them from trying, but you can warn people so they’ll at least keep their kids away from them.”

‘Rumor and innuendo’

Using criminal convictions against job applicants has proven less controversial around the country than using findings by child protection agencies — as Senate Bill 236 would — because convictions are a matter of public record, and they rely on a higher burden of proof. Kentucky already requires public schools to run criminal background checks on job applicants that turn up past convictions.

By contrast, a public registry of findings “would amount to little more than a statewide database of rumor and innuendo,” said Wexler of the National Coalition of Child Protection Reform. Caseworkers try their best to determine whether an alleged incident of abuse or neglect really happened so they can decide how to protect the children who are involved, not so they can create “a blacklist,” he said.

“These registries are clearly a big mistake, because they have misinformation that errs in all directions. There are people who should be on there but aren’t, and there are people who shouldn’t be on there but are,” he said. “You are creating a blacklist of innocent Kentuckians who won’t be able to get a job in their fields even though they have done nothing wrong. This is a classic example of feel-good legislation that simply lets politicians thump their chests.”

Federal courts have urged states to be careful not to violate the 14th Amendment’s right to due process when they publicly identify people as child abusers based on a caseworker’s conclusions.

In 1995, the U.S. 2nd Circuit Court of Appeals sided with a teacher’s aide, Anna Valmonte, who sued to have her name removed from New York’s statewide child abuse registry. (Valmonte slapped her 11-year-old daughter when the girl was caught stealing; an employee at the girl’s school reported the slap to a child abuse hotline.) In her lawsuit, Valmonte said New York lets people appeal an abuse finding only after they were denied at least one job because of it, by which point their professional reputations already were tarnished.

The court sympathetically noted in its decision that three-fourths of the New Yorkers who appealed the state’s abuse findings prevailed.

“If 75 percent of those challenging their inclusion on the list are successful, then we cannot help but be skeptical of the fairness of the original determination,” the court said. “Although we recognize the grave seriousness of the problems of child abuse and neglect, and the need for the state to maintain a central register for insuring that those with abusive backgrounds not be inadvertently given access to children, we find the current system unacceptable.”

In response, New York agreed to change its procedure, allowing people to appeal the findings against them in formal hearings before the information is released to prospective employers.

Terry Brooks, executive director of Kentucky Youth Advocates, said his organization worked for passage of Senate Bill 236 because there should be more barriers between vulnerable children and adults who would harm them.

However, Brooks said, the Cabinet for Health and Family Services does need to reform its systems for substantiating abuse findings and giving those accused a fair chance to appeal. One major problem, Brooks said: Varying rates of child abuse substantiation among the cabinet’s regional offices suggest a “spin-the-bottle situation, where substantiation means something different in Western Kentucky than it does in Eastern Kentucky or in Lexington.”

“Senate Bill 236 was, to me, the opening chapter in what should be an ongoing story. If we stop here, then I think we’re going to have some unfinished business,” Brooks said.

Adams, the senator sponsoring the bill, said she understands the due process concerns about using a caseworker’s conclusions against applicants for teaching and child-care jobs.

“I don’t think there’s any system that’s perfect,” Adams said. “But at the end of the day, you know, there are many different ways you can be employed. I’d rather err on the side of keeping our kids safe.”

This story was originally published March 24, 2017 at 11:24 AM.