Fate of Child Abuse bills frustrates
New Mexico official
ALBUQUERQUE, NM – The head of New Mexico’s child welfare agency is frustrated that a string of measures aimed at closing loopholes and toughening penalties for those convicted of child abuse and similar crimes failed to reach Gov. Susana Martinez’s desk.
The 60-day legislative session wrapped up March 18, leaving on the table bills that had the support of Monique Jacobson, secretary of the Children, Youth and Families Department.
“We brought forth bills that hold those who hurt our children accountable, hold those who hurt our workers accountable and make our juvenile justice system more effective,” she told The Associated Press in an interview Tuesday. “We believe those should be priority pieces of legislation and so for them to either die or not have time to even be voted on is frustrating.”
Facing a state fiscal crisis, the Democratic-controlled Legislature spent some time wrangling over the provisions of budget plans that called for millions of dollars in tax increases and other fee hikes despite the governor’s promise not to raise taxes.
The governor chided lawmakers for wasting time on legislation she did not support, adding to the chorus of criticism from various advocacy groups that the Legislature was spending too much time on non-binding measures such as designating special songs and a state green chile cheeseburger rather than addressing serious problems stemming from poverty.
Senate Democrats have argued that key pieces of legislation are awaiting the governor’s signature, from a balanced budget to measures important to communities around the state, such as banning the possession or purchase of firearms by people under permanent protective orders for domestic violence incidents.
As for the child welfare bills, one would have made it a felony for someone to lure a child to a secluded place with the intention of raping them or committing some other illegal act. Another would have expanded “Baby Brianna’s Law” to require mandatory life sentences for people convicted of intentional child abuse resulting in death, regardless of a child’s age.
The child welfare agency also supported a bill that would have closed a loophole in existing law regarding the transmitting of sexual images to children.
Also, the House overwhelmingly supported a bill calling for tougher punishments for abuse that didn’t result in death or great harm, but the measure stalled in the Senate.
Jacobson described photographs in which belt marks and bruises covered one boy’s legs while another boy had two black eyes.
While the state has been rocked in recent years by a wave of deadly child abuse cases, she said those that don’t have fatal results shouldn’t be minimized.
The agency receives about 20,000 calls annually that warrant further review for possible abuse or neglect. That number has escalated nearly every year since at least 2009.
State figures show close to 30 percent of the cases reviewed during the 2016 fiscal year were substantiated, with more than 2,800 cases involving physical or sexual abuse.
Lawmakers also let languish a measure boosting protection for social workers battered or assaulted while on the job. There have been instances in which workers have been followed home and the windows of agency cars have been shot out.
Jacobson questioned inaction on that measure given that lawmakers previously approved similar legislation to protect sports officials who are accosted.
Some lawmakers argue there’s no appetite for increasing penalties and that the focus should be on preventative measures.
Jacobson said her agency is doing what it can administratively to protect workers but that legal changes are needed to support that work and establish consequences for offenders.
“In New Mexico we need to send a message that we will not tolerate child abuse and this is an issue that matters to us as a state and yes we will focus on prevention but we also will hold people accountable,” she said.
“I don’t know how they think they are serving the public by keeping this stuff under wraps.”
Thomas Clay, Kentucky lawyer
Louisville, KY – Grabbing the teenage girl from behind, Kevin Watson, a security monitor for Jefferson County Public Schools, slammed her head to the table, opening a gash that splashed blood on the girl’s clothes, the table and the floor, according to accounts of witnesses at Breckinridge Metropolitan High School.
As he forced the girl’s head back to the table, Watson was overheard taunting her.
Yet, despite a state Child Protective Services investigation that substantiated the incident as child abuse, Watson has a clean record with the state Cabinet for Health and Family Services, whose social workers issue findings in cases of alleged child abuse or neglect.
Using a secret process that not even victims may know about, Watson, exercising his right to a confidential appeal, was able to overturn the cabinet’s child abuse finding against him. That kept his name from being added to an official list — also confidential — known as the state Child Abuse and Neglect Registry that can restrict adults from some occupations or activities, such as child care, working or volunteering with youths or serving as foster parents.
And data obtained from the cabinet by the CJ show Watson’s case is not unique.
Of the hundreds of people who file such appeals each year, more than half are successful in overturning adverse findings through the same cabinet whose workers substantiated the abuse or neglect, according to the records. Appeals between 2012 and 2015 ranged from several hundred to nearly 1,000 a year, with anywhere from 56 percent to 66 percent being reversed or otherwise changed in favor of the person filing the appeal.
Because all proceedings are shielded by secrecy under Kentucky’s strict confidentiality laws regarding child abuse and neglect, it can’t be determined how the cabinet makes such decisions or who the cabinet notifies when someone appeals a case, including the alleged victims. Watson, who still works at Breckinridge, did not respond to requests for comment.
JCPS officials say they can find no record they were ever notified of Watson’s appeal or offered a chance to submit the school system’s investigation, which also substantiated witness accounts. Amari Walker, the injured student, never knew of the appeal or got a chance to participate, said her lawyer, Thomas Clay.
On July 6, 2016, the cabinet issued a single-page order with no explanation, reversing the abuse finding against Watson, according to records from his JCPS personnel file.
The cabinet rejected the Courier-Journal’s request for further records of Watson’s appeal, saying confidentiality laws protect its records of such proceedings.
Steve Davis, chief of staff at the cabinet, said the cabinet by federal law is required to offer people a chance to appeal findings of child abuse or neglect and state law requires that the records be kept confidential.
And while the law requires the cabinet to notify parties of an appeal, that generally applies to the person filing the appeal and the cabinet officials defending the findings, he said. Davis said he knows of no requirement in the law that victims or others with an interest in the case be notified.
Julie Locke, a Louisville mother, was shocked to discover that her ex-husband successfully overturned a substantiation of child abuse or neglect related to their two daughters. The substantiation stemmed from a 2014 finding by the cabinet that he had put the girls at risk during an incident in which he accosted Locke in front of them at a birthday party, grabbing, threatening and cursing her, according to a domestic violence petition.
“I never knew he filed an appeal,” Locke said. “I never knew they were even entertaining an appeal. For me not to have been notified is bizarre.”
Locke said that based on the cabinet’s reversal of its finding, a judge — over her objections — granted her ex-husband additional visits with their daughters.
Clay, who also represents Locke, said he thinks it’s time for such secrecy to end, that the state needs to revamp the laws and regulations that govern such proceedings.
“I don’t get it,” Clay said. “They’re concealing information about the very people they are trying to protect. I don’t know how they think they are serving the public by keeping this stuff under wraps.”
Walker, now 19, recently filed a lawsuit against JCPS and Watson. She said she still is in disbelief over the incident that left her with blood pouring down her face and required stitches.
“It was crazy,” said Walker, who now attends Doss High. “It happened so fast.”
Davis said he can’t comment on individual cases because of the confidentiality provisions of the law.
In Kentucky, when someone appeals a substantiation of abuse or neglect, the case is assigned to a cabinet lawyer who serves as a hearing officer and typically holds a hearing, takes testimony and makes a written recommendation to the cabinet secretary on whether to uphold or reverse the finding. The secretary makes the final call.
Davis said the cabinet relies on the judgment of the hearing officers and that cabinet officials don’t like to “tinker” with a case because people filing appeals are entitled to an impartial hearing.
“We expect them to issue sound decisions,” he said.
Some cases are settled through agreement of the parties or dismissed for various reasons without a hearing, according to the cabinet.
Dr. Melissa Currie, a pediatric forensic expert at the University of Louisville who occasionally is called as a witness at such hearings, said they tend to be informal, with participants seated around a table and the hearing officer in charge. She said she doesn’t know how the state reaches a decision.
“I don’t know how the system works,” she said. “There doesn’t seem to be any transparency.”
Currie said she has testified at hearings that involved what seemed to be obvious child abuse or neglect, only to find out later that the substantiation was overturned.
“There are cases that seem very clear-cut and they are overturned and we don’t know why,” Currie said.
Often, a lawyer represents the person filing the appeal. Currie said she’s heard lawyers make arguments that don’t address whether abuse or neglect actually occurred but rather, appear to seek sympathy for the client.
” ‘This is going to ruin this guy’s life, he won’t be employed,’ ” Currie recalled one lawyer arguing. “Of course, that should have no bearing whatsoever.”
State law says that the hearing officer should allow only “the evidence on the record” and exclude anything that is irrelevant or immaterial.
Acena Beck, a lawyer with the Children’s Law Center in Covington, said she had represented people at such hearings when she worked as a legal aid lawyer in Northern Kentucky. Generally, the hearings are held in the county of the person filing the appeal, she said, and how they are run depends on who’s in charge.
“It can vary greatly depending on which hearing officer you get,” Beck said. “There’s no consistency.”
Currie said she worries about the effect on social workers tasked with investigating difficult, complicated cases and reaching conclusions, only to have them overturned by the same cabinet that employs them.
“When a finding gets reversed, it undermines the investigation,” Currie said. “It’s demoralizing. They do all this work, they try to protect the kids.”
Locke said she’s still trying to find out how her ex-husband was able to reverse a finding against him.
His lawyer, Elizabeth Pepa, declined to comment, citing the confidentiality of the process.
“My client respectfully wishes for it to remain that way,” she said.
Locke provided the CJ with a copy of the Nov. 19, 2014, letter from the cabinet substantiating abuse or neglect, along with the 2014 domestic violence order she obtained against her ex-husband.
Locke said she was astonished when his lawyer in mid-2015 announced the finding had been reversed following an appeal she knew nothing about.
“How does anyone get a fair hearing if both sides are not represented?” Locke asked.
Even more disturbing to Locke is the lack of any records of the appeal or an official explanation.
As a parent, Locke is entitled to confidential records involving her children of any hearing but when she and her lawyer asked for them, they found there were none. A cabinet lawyer told her the case “was settled outside a hearing,” she said.
When they asked for records of the settlement, they received nothing, Locke said.
Seeking an explanation, Locke and Clay, her lawyer, said they met in December with cabinet officials who said they would look into it.
They are still waiting for an explanation, Locke and Clay said.
Some argue that at a minimum, the state’s confidential registry of people who have substantiated findings of abuse or neglect against them should be open to the public.
Among those arguing that case is state Rep. Dennis Keene, who is sponsoring a bill this year on behalf of a constituent whose infant daughter was injured by a babysitter in 2014.
Keene, a Democrat from Campbell County, said his House Bill 47 would require the cabinet to publish the registry on its website.
“It should be more transparent and accessible to the public,” Keene said.
Jennifer Diaz, the Northern Kentucky mother pushing for the law, said the babysitter was convicted of injuring her daughter and another child she cared for and sentenced to three months in jail.
Diaz said her daughter, now 2, recovered from the injuries that included bruises and head trauma. But Diaz said she believes there should be a way for parents seeking child care to check out individual sitters or other adults around their children.
“It’s very important to us to get this passed,” she said. “I want that registry to be accessible to the public so that everyone can see it.”