Ninth Circuit Holds CA Child Abuse Index Violates Due Process

California's Child Abuse Central Index, a database of known or suspected child abusers, violates procedural due process in failing to give listed persons a fair opportunity to challenge the allegations against them and obtain delisting, the U.S. Court of Appeals for the Ninth Circuit held Nov. 5 (Humphries v. Los Angeles County, 9th Cir., No. 05-56467, 11/5/08).

Being listed on the CACI is stigmatizing in itself, and it also makes access to certain licenses, jobs, and benefits less likely, Judge Jay S. Bybee said. But the state spells out no procedure for getting delisted. Bybee thus concluded that the innocent plaintiffs' being listed on CACI resulted in the “stigma-plus” needed under Paul v. Davis, 424 U.S. 693 (1976), for their reputational injury to be actionable under the 14th Amendment's due process clause.

The court followed Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994), interpreting a similar New York statute, but rejected Smith v. Siegelman, 322 F.3d 1290 (11th Cir. 2003), involving a variant Alabama law, “[t]o the extent that the Eleventh Circuit refuses to recognize a liberty interest [under the due process clause] where the state functionally requires agencies to consult a stigmatizing list prior to conferring a government benefit.”

Under California's Child Abuse and Neglect Reporting Act, Cal. Penal Code §§ 11164–11174, and implementing regulations, law enforcement and child welfare agencies are required to investigate reports of child abuse or neglect and determine whether the incident is “substantiated, inconclusive, or unfounded.” The incident must be reported to the California Department of Justice and included in the CACI unless it is determined by the investigator to be “unfounded,” that is, “false,” “inherently improbable,” an accidental injury, or not constituting child abuse or neglect.

CACI data is made available to state and local agencies and persons involved in licensing or making background inquiries regarding child care providers, peace officers, adopting parents, or foster parents. It is also made available for use in out-of-state background checks in foster or adoptive parent cases. Certain in-state agencies are required by statute to check the CACI before granting child care-related licenses.
An agency forwarding an incident for listing on the CACI must notify the listee. But the statute provides no procedure for challenging a listing, and, while indicating that the state DOJ shall not retain a report “which subsequently proves to be unfounded,” it does not specify who makes that determination, although the court surmised that it is the submitting agency.

Daughter Reports Abuse.

In this case, the plaintiffs' 15-year-old daughter reported that they had abused her for several months. Based on an emergency room examination and a police report from Utah (where the child had driven herself to be with her biological mother), a Los Angeles County Sheriff's Department detective obtained warrants and arrested and booked the plaintiffs for cruelty to a child and torture. The couple's other two children were placed in foster care. The detective identified the case as a “substantiated report” of child abuse, and their names were listed on CACI.

The criminal case against the couple was dismissed, however, after the prosecutor learned that a doctor had surgically removed a melanoma from the daughter's shoulder and had fully examined her during the alleged period of abuse, but had found no signs of it. The couple was found “factually innocent” of the torture charge.

But when they asked the Sheriff's Department to remove their names from CACI, a sergeant told them that the fact that charges were filed “would indicate to us that some sort of crime did occur,” and the dismissal of the case “would not negate the entries” into CACI. The couple then filed this 42 U.S.C. § 1983 suit, alleging in part that their initial and continued inclusion in CACI violated procedural due process, and seeking damages and injunctive relief against the county and individual officials. The defendants won summary judgment.
Stigma-Plus Test.

Reversing, the Ninth Circuit said that its procedural due process inquiry has two steps. It first asks whether a liberty or property interest exists with which the state has interfered. It then examines whether the procedures used to deprive any such interest were sufficient.

Read full article here. [Brooks Holland]