Monday, November 04, 2013

Getting off the CPS abuser database

I sent this to CPS, as a result of a recent appeals case in San Jose and discovering that I have a right to a hearing:
Cecilia Espinola, Director
Human Services Department
1400 Emeline Ave., K
Santa Cruz, CA 95060
(831) 454-4222

Oct. 17, 2013

Dear Ms. Espinola:

I demand that I be removed from the Child Abuse Central Index (CACI). The Referral Number is XXXX-XXXX-XXXX-XXX3279.

Background
I was put on the CACI after an investigation by your social worker Sally Mitchell in Nov. 2007, and after a complaint from my ex-wife to her in a bitterly contested divorce.

Mitchell’s 2007 report was a collection of inaccurate anecdotes about my parenting practices, as described by my kids. It admits that none of described incidents constitute emotional abuse. The report also admits that a neutral observer would be likely to regard all of the incidents as unimportant and impossible to have a negative impact on the kids.

Mitchell testified at a family court hearing where my ex-wife made a motion for sole child custody before Commissioner Irwin Joseph, but did not make a recommendation regarding custody. She testified that the best examples of my so-called emotional abuse were how I once reset an alarm clock from 5:00 am to 7:00, and a crazy story about running over a dog. The dog owner testified that no one ran over his dog. Her main criticism, she said, was that she disapproved of the sum total of my parenting style. Since then, the family court has only issued a series of temporary orders.

Eligibility for a hearing
According to PC 11169(d), I am entitled to a grievance hearing, satisfying due process requirements. An opportunity for a hearing was not previously provided, apparently because either the county had no grievance process, or because the issue was thought to be pending in a child custody dispute before the family court. There are no longer any abuse accusations pending in court.

Admittedly, Joseph expressed the opinion on Jan. 11, 2008 that I had “engaged in emotionally abusive behavior and conduct.” That would seem to be decisive in my case, because PC 11169(e) provides for denying a hearing “when a court of competent jurisdiction has determined that suspected child abuse or neglect has occurred”. However that reasoning is incorrect for several reasons.

(1) The family court is not a court of competent jurisdiction for child abuse.
(2) Joseph did not really make a determination on that day, because he only made temporary child custody orders and ordered a psychological evaluation for a subsequent hearing. That evaluation found no abuse, and the subsequent hearings did not either.
(3) The statute only applies if the court confirms what CPS suspected. But the CPS agent was discredited in court, and in that same speech Joseph said, “Third, this Court is not relying on what Sally Mitchell said.”
(4) The CACI law does not allow listings for “emotionally abusive behavior and conduct.”

These might seem like technical arguments contrary to the spirit of the CANRA and CACI, but they are not. I elaborate on them:

(1) The county has a criminal court and a juvenile dependency court for deciding child abuse. CPS could have initiated an action in either of those courts, but Mitchell testified that there were insufficient grounds. The family court can decide child custody, but the standards are completely different.
(2) The intent is to yield to a more competent determination, when available. Joseph eventually appointed psychologist Ken Perlmutter of Palo Alto to evaluate the allegations, and he found no abuse of any kind on my part. He testified that I am just as good a parent as my ex-wife, and that there is no example of a substandard parenting practice on my part. At a later hearing in 2010, psychologist and nationally-recognized abuse expert Donald G. Dutton also testified that there was no abuse. No psychologist or anyone else testified that there was abuse.
(3) When the CACI is used for background checks, recipients are required to review the child abuse allegations as part of their screening process and to draw an independent conclusion about the allegations, according to SOC 832. That process is subverted if the CACI is allowed to indicate an allegation and a confirmation, but the confirmation is not of the allegation. Thus the listing can only be “confirmed” if the CPS alleged abuse is confirmed, and not if some other form of abuse is confirmed.
(4) According to PC 11165.12, a “substantiated report” requires a finding of “child abuse or neglect, as defined in Section 11165.6”. That definition consists of physical injury or death, sexual abuse, neglect, willful harming or injuring or endangering, and unlawful corporal punishment or injury. Those are defined in different sections. It pointedly does not include “serious emotional damage”, which is defined in PC 11166.05. And it certainly does not include “emotionally abusive behavior”, as that is not actionable at all.

Thus the law requires that you either remove my name or give me a hearing. The report was almost six years ago, but I have had no earlier opportunity for a hearing. The SOC 833 sect. 2d says that I have 30 days to request a hearing after becoming aware of the grievance process. I only learned about the process from the court case mentioned below.

CPS negligence
Mitchell investigated a report with about a dozen allegations, all of which were false. She was unable to confirm any of them. All she did was to interview my kids at school, and she never got any adult confirmation for anything they said. She believed fantastic and nonsense stories, such as me repeatedly running over the same dog in a car and the dog being unharmed.

She came to me with complaints about setting an alarm clock and buying soup in the grocery store, but she could never explain how I should do anything any differently. She ignored guidelines about collecting information, verifying it, and trying to correct problems.

Mitchell’s testimony also showed that she misunderstood the statutory requirements for a finding of emotional abuse.

The Child Abuse and Neglect Reporting Act [CANRA] was amended in 2004 to make its definitions closely track those in Welfare & Institutions Code §300. The definitions of abuse and neglect under CANRA are now essentially the same as what is actionable in juvenile dependency court. Mitchell testified that there were not sufficient grounds for an action under WIC §300 in the juvenile dependency court. Hence they cannot be the subject of a CPS investigation under CANRA, and cannot justify a listing in the CACI.

CANRA might be summarized by saying that suspected physical abuse, sexual abuse, and child neglect must be reported by teachers and others. Suspected emotional abuse may optionally be reported, but only if it results in serious emotional damage, and only if it is evidenced by behavior such as severe anxiety, depression, withdrawal, or untoward aggression. Neither Mitchell nor anyone else ever alleged any emotional damage, serious or minor, and no one ever alleged any such behavior evidence in my kids.

Mitchell testified that my kids had not been emotionally damaged from my treatment, and that their behavior did not reflect any substandard treatment. She also testified that she failed to get adult confirmation for any allegation.

Mitchell apparently relied on a pamphlet based on an earlier vaguer version of the California statute, and not the law that was in effect at the time. Your department was negligent in not training your social workers in the current child abuse law. There were not even any allegations that can support a proper finding of emotional abuse under the law.

Law requires harm, intent, and due process
I refer you to the recent case of the California Court of Appeal, Gonzalez v. Santa Clara County Dep’t of Social Servs. (Cal. Ct. App. Oct. 8, 2013). There the appeals court in San Jose ruled that spanking with a wooden spoon was not child abuse, even though it left bruises, because an assortment of other conditions was not met. Furthermore, it ruled that the superior court can issue an administrative mandamus to force your agency to remove a name from the CACI.

Those conditions were not met in my case either.

The decision said:
Under CANRA, a report of child abuse is “ ‘[u]nfounded’ ” if it “involve[s] an accidental injury.” (Pen. Code, § 11165.12, subd. (a).) “ ‘In its plain and ordinary sense, “accidental” means “arising from extrinsic causes; occurring unexpectedly or by chance[; or] happening without intent or through carelessness.” ’ ” (Insurance Company of the West v. Haralambos Beverage Co. (1987) 195 Cal.App.3d 1308, 1318, disapproved on another point in Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 841, fn. 13.) (Italics added.) There can be no doubt that Mother’s conduct — striking her Daughter’s buttocks with a wooden spoon — was intentional. The resulting bruises, however—the only “injury” even arguably involved —appear to have been “accidental” in that they “happen[ed] without intent,” and at most “through carelessness.”
In my case, no injury was even alleged, except that Mitchell claimed that the alarm clock made my kids late for school. In court, she admitted that the kids were never late for school and never missed doing homework. While it could be said that I “intentionally” reset the alarm clock one morning, it was never even alleged that any harm or injury was intended or ever occurred. There was no intent to abuse, as the court has now defined these terms.

Whatever the judgment of your social worker in 2007, it cannot outweigh the subsequent analysis of two court psychologists, and a CACI listing cannot be maintained without the factual support required by the above appellate court decision.

Therefore I demand that you remove my name from the CACI, and to inform the Department of Justice that the report is “unfounded.” If you refuse, then please give me a grievance hearing, as I am entitled under the law. I have court transcripts for all of the above testimony by Mitchell, Perlmutter, and Dutton, and I can prove that your agency is delinquent in its responsibilities. I also submit an SOC 834 form.

Sincerely,

[George the Angry Dad]

References
CANRA
http://leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=11001-12000&file=11164-11174.3
Gonzalez v. Santa Clara County Dep’t of Social Servs.
http://www.courts.ca.gov/opinions/documents/H038241.PDF
California Dept. of Social Services forms
http://www.dss.cahwnet.gov/cdssweb/entres/forms/English/SOC832.pdf
http://www.dss.cahwnet.gov/cdssweb/entres/forms/English/SOC833.pdf
http://www.dss.cahwnet.gov/cdssweb/entres/forms/English/SOC834.pdf
All transcripts are on file in ..., Santa Cruz family court.
I was not sure about admitting the most damaging evidence against me in the letter -- namely that the family court ruled against me, seemingly in confirmation of the CPS opinion. After all, maybe CPS is too incompetent to figure out what the family court did. My court file is 100s of pages, and is not easy to make sense of it.

Until talking to San Diego CACI lawyer Tate Lounsbery, I thought that I did not get a CPS hearing back in 2007 because the matter was being resolved in the family court. But he explained to me that the family court is not a court for resolving CPS issues. Furthermore, CPS was not giving anyone hearings back in 2007, and only started a couple of years later following changes in the laws, regulations, and court precedents. CPS is still not properly following the law, which is how he can do a business explaining the law to CPS. He also advises people outside of San Diego county, and I recommend him for anyone being bullied by CPS. He is also the first one I found who actually understands the legal requirements for a CPS finding of emotional abuse.

I decided not to hide anything, and to squarely address the legal issues. I wanted to write the sort of letter that would force the CPS bureaucrats to turn it over to county attorneys for evaluation. My only hope for getting off the CACI was to get the matter in the hands of someone who understands the pertinent legal issues, and the mush-head social worker bullies do not.

I just got this reply:
October 29, 2013
Mr. [George AngryDad]
[address]
Referral Number: XXXX-XXXX-XXXX-XXX3279
Dear Mr. [AngryDad]:

In response to your request, the Santa Cruz County Human Services Department, Family and Children's Services Division, has completed a reassessment of the investigation to determine whether the report made to the Department of Justice (DOJ) was made in accordance with the statutory requirements.

Section 11169 of the California Penal Code requires child protective agencies to forward to DOJ a written report on each case of known or suspected child abuse that the department investigated and determined to be "substantiated". However, at the time of the investigation pertaining to your family, the Penal Code also required Child Welfare agencies to submit reports on investigations to the DOJ that were determined to be "inconclusive" as well. In 2012, the reporting requirements changed and Child Welfare agencies are no longer required to submit reports with "inconclusive" findings.

Based on our review, we have determined that the outcome of the investigation pertaining to you was incorrectly found to be "substantiated". Specifically, the documented facts of the investigation should have led to a conclusion of "inconclusive", as defined by the Penal code, instead. Though at the time of the investigation, a finding of "inconclusive" would have still resulted in a report to the DOJ, making this change to "inconclusive" now allows the Department to notify the DOJ and request that your name be withdrawn from their records. We have notified DOJ and requested your name be immediately removed from the Child Abuse Central Index (CACI).

Please keep this letter for your records and to provide to your employer if necessary.

Regards,

Abby Wexler, MSW
Assistant Division Director
Family and Children's Services
831-454-5038
Of course they do not apologize for the bogus listing or for ruining my life or for making my kids grow up without a dad. But I am happy to be removed from the database. This removal would never have happened, except for recent due process requirements, and the possibility of CPS being reviewed by an outside authority.

5 comments:

Anonymous said...

...we have determined that the outcome of the investigation pertaining to you was incorrectly found to be "substantiated"... We have notified DOJ and requested your name be immediately removed from the Child Abuse Central Index (CACI).

If they apologize that might imply some civil liability. It's a win. Pat yourself on the back. A rogue public employee misperformed and a supervisor fixed it. Too bad it took almost seven years.

George said...

Yes, it's a win. But I do not credit any supervisor for good judgment. I appeals to the CPS director 6 years ago, and got nowhere. I think that it is more likely that CPS got a legal opinion that it was acting contrary to the law, and that a court might overrule them. If not for that, the supervisors would continue breaking the law.

Anonymous said...

George,
Congratulations and well done!

Have you considered legal actions against your ex, her attorneys and other individuals for tort damages such as defamation, malicious litigation, etc.? I note your point that child abuse is a criminal offense and being registered as a child abuser placed you in the category of a criminal from the point of view of employers, etc.

Those who perpetrated this injustice against you only understand and submit to 3 things: money, public humiliation, and criminal indictment.

lisa said...

wow, the miracle is that they responded so quickly.

CONGRATS

do follow-up and make sure you are actually off the databases, often they say they are going to and dont.

in terms of legal action, the time to file has lapsed. even if they lied to get you onto the database, the clock starts ticking once they lie to get you onto it. but even if it had not, it would be hard to survive a motion to dismiss.

George said...

That is a good suggestion -- to confirm that I am really off the CACI. I will have to look up how to do that.