The DHS’s Central Registry – The Secret List

There are courts of law that operate out in the open and in accordance with the Michigan Court Rules and Michigan Rules of Evidence.  It is the system most people think of for the settling of disputes.  It is the product of such constitutional rights as due process.  The rules provide the structure, tests, and predictability one expect to help achieve justice.  It is intent is to be objective.  There is, however, another world of the law that is much more murky.

The world of administrative law does not operate in the same openness with the same rules.  The rules of evidence rarely apply – advisory at best.  The rules that do apply are created by the very governmental agency at issue.  It is usually an agency of the executive branch.  Regardless of the intent of the rules, if not followed, the involvement of an actual court is a long way off.  That way usually costs anyone challenging that agency thousands of dollars before ever getting to an objective court.  It is a very subjective opinion driven system.

The Department of Human Services – Child Protective Services is the agency that gets called by police, anonymous callers, estranged spouses, hospitals, daycares, or schools, whenever those they feel or are compelled by a blanket policy to report suspected child abuse and neglect.

At first glance, this all sounds very reasonable.  Child abuse and neglect is a bad thing.  It should be reported.  We should encourage liberal reporting to ensure the safety of our children.  The problem is that this is a very subjective system with a great deal of power.  Even though most of those within the system are likely fair and honest, some make bad choices naively or maliciously.

DHS has what is called the Central Registry.  It is suppose to be a nonpublic list managed by DHS.  That means that the average person cannot have access to the list.  However, access may be given to governmental agencies or when granted by an individual unknowingly.  For instance, if someone is looking to adopt a child, obtain a license to be a teacher, obtain some other professional license, or serve in a public capacity, then simply being on the list is likely to impact him/her severely.  While it is held to be a “secret list”, it really is not so secret.

If there is a “substantiation of abuse and neglect” by DHS/CPS, one is put on the list.  We have handled cases where even if an investigator has found no such abuse occurred and an injury purely an accident, a supervisor, contrary to all of the evidence, has forced the investigator to change his conclusion.  The result is the person is then placed on the registry.  The fight to get off it is very expensive and emotionally victimizing.

This is where the administrative rules become important.  The rules permit the person to appeal the decision and ask for reconsideration.  This means that the person simply asks the CPS supervisor to change his/her mind.  We have yet to see that ever happen.  Then the person has the right to request further review before an administrative law judge.  At this point, one expects that this will be more like a courtroom process; however, that is not reality.

The administrative law judges are employed by the agency.  The agency, which is part of the executive branch, then is represented by the Attorney Generals office, which is also part of the executive branch.  There are few rules and nearly no rules of evidence.  Regardless, the person has the right to the hearing, to be represented by an attorney, and call witnesses and present evidence.

Regardless if the administrative law judge seeks to do justice and hold DHS/CPS to its burden, even a ruling in favor of the individual does not mean justice is served.  The problem with the system become very relevant after even a favorable ruling.  DHS/CPS can then seek a review from another higher up, at which the individual is not necessarily permitted to respond or advocate on his own behalf.  One can imagine that DHS/CPS is likely to squeeze out the result it wants.

Take the case of the “Smiths”.  Both were employed with good jobs.  They had no criminal history.  They had two children who do well in sports and school.  Their friend “Mary” was a foster-care parent.  They met “Jen”, a young foster-child.  They began the process of adoption.  The Smiths brought Jen home.  Learned they learn of Jen’s troubled past.  They worked closely with social workers, teachers, and counselors.  She had a history of outbursts in which she would throw herself around and hurt herself.  Then, one day, while making Jen shovel snow, as recommended by her counselors when she acts out, Jen became defiant.  Instead of spanking or yelling, Mr. Smith tapped her in the butt (according everyone) to return her to shoveling.  Jen then launched herself into a snow bank in a tantrum, similar to those familiar to her teachers, counselors, and Mary.  In the snow was an unknown chunk of ice.  She hit her face and leaving a mark requiring no treatment.  The Smiths reported it immediately to the social workers, teachers, and counselors.  DHS was called pursuant to a protocol.  Jen was removed from the home, yet the investigator found “no substantiation.”  It was an accident.  The DHS supervisor forced him to change his opinion.  The case made it to a hearing before an administrative law judge.  Meanwhile, Jen was adopted by close friends of the Smiths.  Jen still calls Mr. Smith daddy.  The new parents, Mary, counselors, social workers, and teachers all testified on his behalf.  The judge found in favor of Mr. Smith.  DHS sough a reconsideration.  Mr. Smith was not permitted to respond.  DHS got another judge, who did not review all of the evidence, to reverse the ruling.  The Smiths then take DHS to an actual court of law, which cannot be done until they have exhausted the administrative process.  Meanwhile, they have spent two years and thousands and thousands of dollars without justice.

Does that Central Registry sound like a fair system?

If you or a loved one is facing an allegation, investigation, or central registry consideration by DHS/CPS, contact a law firm experienced with the entire process.