ON THE LIST
NO ABUSE. NO NEGLECT. BUT STILL ...
There are 81,000 names on an internal document at the Arizona Department of Child Safety.
These are people who, in theory, you don’t want around children.
The confidential list — known as the Central Registry — is intended to catalog people with proven reports of child maltreatment.
Before Arizonans can foster or adopt a child, or get a job that provides direct services to children or vulnerable adults, the DCS checks the applicant against the list.
Last year, the DCS added about 4,700 names to the Central Registry.
A Republic investigation of the little-known registry found shortcomings in the process for the accused and those it is intended to protect.
The agency doesn’t check its list to vet people who apply to work in schools and health-care professions. These are areas that have yielded disturbing accounts of child abuse in recent months, ranging from the USA Gymnastics scandal to teachers being prosecuted for sexual relations with students.
At the same time, some who are listed see the process as unfair:
There’s no way to guarantee people find out they’re being listed.
People on the list can appeal to be removed, but the agency can overturn that appeal.
But perhaps most important, the agency lists people even when they haven’t abused or neglected a child.
People’s names are added to the Central Registry when the DCS determines a complaint of child abuse or neglect is accurate — even if a follow-up investigation concludes the action being reported wasn’t actually abuse or neglect.
What does that mean in real life? Consider an example:
A mother posts a photo of her child online. Someone else sees the photo and believes it depicts child abuse. That person files a complaint.
Child-welfare workers investigate and determine the picture isn’t actually a case of child abuse. That’s where the case ends.
But later, the mother’s name is referred to the Central Registry, because the original complaint of abuse or neglect was deemed factual. It’s now up to the mother to object to being blacklisted, and she must hire her own attorney.
If that example seems confounding, imagine how Heather Whitten felt. Because that is what happened to her.
Photo goes viral, problems spiral
Whitten is a professional photographer. In 2016, while she was living in the small Arizona town of Sahuarita, she posted on her Facebook page a picture she had taken of her husband and son.
It was an eye-catcher: a naked 11month-old boy resting in his father’s arms in the family shower, water cascading around them.
The boy was sick. The father was comforting him. Whitten thought the picture captured the tender care her husband was providing. Judging by comments on her post, which rapidly spread on social media, many people agreed. Shot from the side, the photo did not reveal any private body parts.
Am I on the list?
The Central Registry maintained by Arizona's Department of Child Safety is a confidential document that lists people with proven reports of child abuse or neglect. It names a lot of people: 81,000, according to DCS records. Critics suspect the registry most likely lists people who have no idea they're on it. And a listing can complicate getting some jobs. Only the DCS can access the list, and it does so for limited purposes. Anyone who suspects they might be on the list can submit a request to the DCS, spokesman Darren DaRonco said. People are entitled to information about themselves. To seek that information, send a request to the DCS at DCSCentralRegistry@azdcs.gov. People who believe they shouldn't be listed can seek an appeal, even if they missed the 20-day deadline to contest a listing — if they can prove they never got a notification letter. But someone who saw the photograph thought it was overtly sexual and exploitative.
That unidentified person complained to the DCS, probably by calling the state’s child-abuse hotline. The DCS has to investigate any legitimate complaint.
But police in Sahuarita visited Whitten’s home and didn’t see anything to pursue. The DCS apparently didn’t either, because the agency soon closed its case, Whitten said. But months later, Whitten got notice that the DCS was adding her to the agency’s Central Registry for child neglect.
“It was horrifying, terrible,” Whitten said. “There’s a millisecond where you think, ‘Do I deserve this?’ Then common sense kicks in.” She considered the long-term consequences and got increasingly angry: A listing would be a black mark on her record.
The registry would likely block Whitten, a former foster-care parent, from ever fostering again. And forget trying to work at a social-service agency or a nursing home, she said.
She knew she would lodge an appeal. So she started scrambling to raise the money to hire an attorney.
How registry is supposed to work
For adults caught up with the DCS, the registry is largely an unknown.
Notices informing parents or caregivers that they’re being proposed for listing arrive months after their case has closed. The notice isn’t sent by registered mail, so there’s no way for the DCS to ensure anyone received the notice unless they appeal it.
There is an appeal process, but few pursue it even though inclusion on the registry can, for some jobs, be the equivalent of a no-hire list. Even those who appeal and prevail can still lose, because finding they should not be listed can be overturned by the agency.
Once on the registry, a name remains for 25 years.
“People get into the (child welfare) system and they’re confused, they’re scared, their kids have been taken away from them,” attorney Alane Ortega said.
Many of these parents deny the allegation of abuse or neglect but agree to give the DCS control of their children, she said. That consent can make them candidates for the registry, even as they think their denial clears them, she said.
“I think the process, like many of DCS’ processes, is broken,” Ortega said, echoing other attorneys who have tangled with the registry.
A helpful tool?
There’s a good reason for the registry. Federal law requires it, for one.
It also warehouses substantiated reports of child abuse and neglect. It lets the DCS know if there have been prior complaints to the hotline about a child’s safety. And it’s a resource for entities that work with children to screen job applicants.
People who work in child welfare say it’s a valuable resource.
“I see it as a safeguard,” said Suzanne Schunk, vice president of family-support services with Southwest Human Development, a private agency that provides counseling and instruction to families in the child-welfare system.
“I certainly want to know they haven’t had any problems with child abuse or neglect,” she said of job applicants.
“It’s helpful for us to know if someone has a history of abuse or neglect,” said Lauren Lowe, the DCS’ attorney.
The DCS can’t say how often it accesses the registry database or what happens after that. But a listing isn’t necessarily a “don’t hire” order, Lowe said.
There’s a ranking, effectively, of the level of offense within the registry. That can be persuasive to a would-be employer if an applicant chooses to share their records with the employer. But those who have challenged registry listings say they can’t understand why they should be on the list — branding them with a scarlet letter when it comes to job opportunities — if the DCS investigated and found no problem with abuse or neglect.
A deal, with no listing
Whitten opened a GoFundMe account, included the photo of her son and husband, and in eight hours raised $5,000 for her defense.
She said the agency had been urging her to just agree to the listing, noting her family was moving to Florida anyway. “They try to get you to take the substantiation, saying, ‘It’s no big deal,’ ” she recalled.
She refused. With an attorney at her side, she fought the listing.
The night before her appeal hearing, she reached a deal with the DCS: The agency agreed to not place her on the registry. In exchange, she promised she would not publicly display any image “in which any of her children are engaged in exploitive exhibition or other sexual conduct,” according to her settlement.
And she had to confirm that she does not currently do such things. Because, Whitten said, she never did.
An opaque process
The internal process the DCS uses to refer someone to the registry is problematic, attorney Jennifer Kupiszewski says.
The DCS only relies on its own documents in deciding to add someone to the registry, she said. That means accused individuals can’t submit evidence that contradicts the DCS’ evidence.
“There’s no way for the family to say, ‘You should look at this,’ ” she said.
To be heard, a family must appeal to a judge. And that process is fraught with its own problems.
For example, anyone getting a registry notice has 20 days to respond. But there’s no guarantee the recipient gets the letter. The DCS does not use registered mail to send notices, so the only way the agency knows if a parent or caregiver receives the notice is if they appeal.
“It can take them (the DCS) more than a year to send out the letter,” Kupiszewski said. If a family has moved in the meantime, even if they filed a forwarding address, it would have expired, she said.
Lowe said the DCS does its best to locate parents. If someone finds out years later they are listed, they can still appeal, she said.
Once on the list, it’s rare that people try to have their names removed. It’s even more rare to succeed: In 2017, 40 people won registry exceptions, state records show. Only 51 people even sought to be taken off the list.
A listing can have lasting effects beyond job prospects.
Attorney Gregg Woodnick said he has seen the registry used as a cudgel in custody battles. Although registry records are confidential, parents can obtain them from the DCS, and attorneys can argue the information is relevant in family court.
A finding of “substantiated” neglect or abuse can be alarming when fighting over who gets the kids, Woodnick said.
Appeals are rare
State records show few appeal their proposed inclusion on the registry. For those who do, the costs can be enormous. Unlike a juvenilecourt proceeding, there is no right to a court-appointed attorney for lowincome families.
“Contesting the DCS registry is a benefit afforded to those with shekels in their pocket,” said Woodnick, who has represented clients in appeals proceedings.
That’s one reason appeals are rare: In 2017, there were 195 appeals filed with the Office of Administrative Hearings, records show, representing just 4 percent of the 4,695 names the DCS added to the registry last year.
And even if an individual wins the appeal, the DCS can overrule or amend the administrative judge’s finding. It happened in 28 percent of the cases in 2017, records show. The year before, it was 41 percent.
That’s standard procedure for administrative appeals across state government. But it leads attorneys like Woodnick to conclude the agency director is “judge, jury and executioner.”
“If you had a judge sit for three hours, why should a director be able to overrule?” he asked.
After that, the only recourse is to go to a county superior court, a process that can add another year, as well as more legal costs.
A long, costly fight
For one Avondale couple, their registry fight lasted nearly three years and cost more than $21,000. They maxed out credit cards, tapped relatives for loans and considered selling their house. It was worth it, they said, because the father, who is a nurse, feared he would have been listed as having neglected his child. “I would have lost my livelihood,” he said. He asked that his name not be used over concerns it could affect his employment.
“We could have been debt-free if this had not happened,” the father said of that day in July 2013 when his 6-monthold daughter rolled off the bed as he was fixing her a bottle. She appeared unharmed. But later that day, while the baby’s mom was bouncing her on her tummy, the couple noticed the baby favoring her leg.
They went to the hospital, which triggered a mandatory report to the child-abuse hotline.
The DCS and the court closed their case after the family did a few weeks of parenting lessons. Life returned to normal.
But nine months later, they got a letter stating the father would be listed on the registry.
won the appeal to the state Office of Administrative Hearings, but DCS Director Greg McKay rejected it, records provided by the family show.
The family didn’t stop there, appealing that decision to Maricopa County Superior Court, where a judge overturned McKay’s finding.
“AzDCS has come to the conclusion that (the father) somehow neglected (the baby) by placing her in a situation that did not cause her any injuries,” Judge Crane McClellen concluded in his 2015 ruling.
McClellen reinstated the initial appeals judge’s finding, reversed McKay’s finding and awarded $5,000 in attorneys’ fees and costs to the father. The entire ordeal lasted nearly three years. It was worth the fight, the father said, but it has left him feeling paranoid.
“I get worried about sending her to school,” he said of his daughter, now age 5 and in preschool. He’s worried someone will misconstrue a bump or a bruise and the whole process could start again.
Teachers checked?
There is no national standard for how registries operate. Federal law gives states flexibility, and requirements vary widely. For example, while a listing on Arizona’s registry remains for 25 years, in California it’s 10. Several states don’t specify a term.
In Arizona, state law limits registry use to screens of potential DCS staffers, child-care centers and private firms that provide social services to children and vulnerable adults. It also is a required check for prospective foster and adoptive parents.
Registries in other states, such as Delaware, have a more expansive reach. Schools and health-care facilities must use the Delaware registry to check their hires, said Joseph Smack, spokesman for that state’s Division of Family Services.
Alabama uses it to check out potential teacher hires. Arizona does not, unless a request comes in from a state, such as Alabama or Delaware, that mandates a registry screening.
State education officials say they are confident the registry is used to screen teachers seeking state certification, since all applicants must produce a clean fingerprint clearance card from the state Department of Public Safety.
But the state police agency confirmed it can’t, and doesn’t, tap into the registry. Lowe, the DCS attorney, said it’s a “very, very common myth” that the DPS can use the database. “If I could dispel one myth, it would be that one,” she said. The DCS can make checks on behalf of schools, but such requests are rare, she said. People familiar with the registry were surprised to learn the registry is offlimits to schools.
It also surprised attorneys who have tangled with the registry. While they fault the registry process, they argue something intended to protect kids should at the very least be used to check out people who deal with large numbers of kids every day — specifically, in schools.
“It’s intellectually dishonest,” said attorney Markus Risinger, who has represented clients who have contested registry listings. “If you’re using it (the registry) to protect kids, but you’re not using it for schools, what’s the point?”
More change coming?
Arizona lawmakers have amended the laws governing the registry many times over its fourdecade history. In January, state Rep. Kelly Townsend, R-Mesa, proHe posed legislation that would have allowed listings only if there was a court finding of abuse or neglect.
She was motivated by the case of Brian and Janna Bentley, a Mesa family ensnared in a widely publicized case involving their then-7-year-old son.
The child disappeared one night in late March 2016 after he protested having to do his chores.
His parents searched for hours but fell asleep before finding him. They continued their search early the next morning, then called police when they still could not locate the boy. Before police arrived, a neighbor spotted the child hiding in a bush in her front yard.
Both Mesa police and the DCS investigated the couple for neglecting their son. The DCS closed its case three weeks later, but Mesa city prosecutors brought misdemeanor child-neglect charges against the couple. Last August, a jury found the family not guilty.
Three months later, the Bentleys got a notice from the DCS, proposing to list them on the registry for neglect. With an entourage of friends and family, they showed up at the administrative appeal hearing.
In late January, the hearing judge concluded the DCS did not prove its case, according to an exhibit filed with the Bentleys’ federal civil-rights lawsuit against the DCS. That exhibit showed the DCS upheld the judge’s finding, so the Bentleys were not included.
Townsend was outraged the family was forced to appeal. She later withdrew her bill, saying she needed to learn more about the process before suggesting changes, but still sees an injustice in the Bentleys’ case.
“It’s like saying you’re on the no-fly list because someone made an erroneous report on you,” she said. “You shouldn’t be on the list.”