State delayed review for people named on child abuse registry

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Verdicts & Settlements

March 1, 2011

State delayed review for people named on child abuse registry 

In New York, calls to a state child abuse hotline must be transmitted to a local child protective agency, which records the reports as “indicated” or “founded” in the Statewide Clearance Registry (SCR) if the allegation is supported by “some credible evidence.” People who are named in a report as indicated for abuse or neglect may request that the record be amended to remove that designation.

The request goes through several steps before the state makes a final decision about amending the record. If the state does not amend the record, the subject may request a hearing and appeal the results of the hearing. About half of the people who are indicated in the SCR are eventually exonerated.

Employers licensed to provide services to children must consult the SCR before hiring an applicant who will have regular contact with children. If the subject of a report has requested an amendment, the state is not allowed to disclose the listing.

If an amendment request is withdrawn or waived, the person’s name stays in the registry as indicated for abuse or neglect. In 2004, SCR officials began instructing employees to mark amendment requests as either “withdrawn” or “waived” when the requesters had done neither. They also called employers that had sought clearance for applicants from SCR years earlier but had not received a reply, asking whether they still wanted clearance. Because years had passed since the requests had been made, the employers no longer had an interest in the results. The SCR marked those files as “withdrawn” as well without telling the subject.

Despite time limits on the amendment process, thousands of amendment or hearing requests were ignored for several years. In 2001, for instance, someone reported Barbara Finch for leaving her 10-year-old child unattended at the bus stop, and the local child services agency indicated her for lack of guardianship. She was exonerated two years later. During that time, Finch—who had a degree in early childhood education and had worked with children for years—was denied two jobs, and the family court declined her request to become the foster parent of her infant grandson.

Finch and two other people on the registry filed a class action against the state Office of Children and Family Services and individuals in charge of the agency and the SCR, alleging the defendants deprived them of their liberty and property rights without due process by failing to timely schedule hearings or issue clearances and wrongfully terminating amendment requests.

After suit was filed, SCR officials instructed employees to shred or discard thousands of files. Several employees complained or refused to comply because there was no documentation that the subjects had withdrawn their amendment requests. The SCR also deleted documents and e-mails that pertained to the case.

A trial court limited the plaintiffs to injunctive relief against the individual defendants.

The agency and the individuals agreed to allow the subclass of members whose records were marked as withdrawn or waived the opportunity to request an amendment hearing. The defendants will notify the class members that if they don’t request a hearing, their names will remain on the registry. If members report that they are currently awaiting an employment clearance check previously submitted to the SCR or that they plan to apply for child-related employment within 45 days, the state will conduct a prompt administrative review. Reviews will also be conducted in every case marked as withdrawn or waived without documentation.

The defendants also agreed to institute several policy changes, including withdrawing or waiving claims only after written request from the member and requiring documentary support for a decision of withdrawal or waiver.

The court has granted final approval of the settlement. Still pending is another proposed settlement providing that beginning in November 2011, reviews for class members who have applied for a job and are awaiting clearance from the registry or who were fired or suspended from a job because of an indicated report will be conducted within 130 days of their requests. Those whose jobs are not immediately affected will have reviews within 310 days.

Citation: Finch v. N.Y. St. Off. of Children & Fam. Servs., No. 1:04-cv-01668 (S.D.N.Y. Feb. 18, 2011).

Plaintiff counsel: Thomas Hoffman, New York City.

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