State Child-Abuser List Ruled Unconstitutional
The state Appeals Court recently ruled that a state-maintained list of child abusers is unconstitutional on the same grounds raised by a Carthage attorney in a local case.
The N.C. Court of Appeals, in a unanimous decision earlier this month, ruled that the system the state used to place names on the Responsible Individuals List (RIL) violates the person's right to due process because it is done in secret without a hearing. Being on that list could prevent someone from adopting a child or getting certain jobs.
Carthage attorney Art Blue raised the same objections in a case involving a Moore County woman whose name was placed on the list after she was charged with child abuse. Even after she was found not guilty, the woman still had to go back to court to ask a judge to order the state to remove her name from the list.
Julie Morgan, whose husband has been serving in Haiti with the 82nd Airborne, was charged with child abuse based on allegations made by her teenage stepdaughter, who no longer lives with her.
But when the girl was put on the witness stand in court during Morgan's criminal trial last June, she admitted making up stories. Her school cheerleading coach testified she had seen the girl changing clothes in the locker room and never noticed any marks or bruises of the kind that would cause concern.
"Under oath during the criminal case before Judge Hill, the child admitted making prior false allegations," District Court Judge Scott Etheridge later found. "(She) admitted to other instances of fabricating allegations and recanting various allegations."
Morgan was found not guilty, but her legal problems did not end there.
The day before the criminal trial began, social workers with the Moore County Department of Social Services (DSS) placed Morgan's name on the RIL. There was no hearing, and Morgan did not have an opportunity to contest the accusations.
That list is not unavailable to the general public.
It is available to agencies and others who hire teachers or caretakers or when people want to adopt children. It contains the names of persons directors of social services say have been responsible for various forms of child abuse.
In the letter required by law, DSS notified Morgan she had been placed on the list and would have only a limited time to take action to have her name removed. When she asked the local director to take her off, he declined.
Morgan had to hire Blue and go back to court for a second hearing, this time to ask a judge to order her name expunged from the list.
According to court testimony, DSS workers said they had sent the teenager who made the accusations against Morgan to Butterfly House in Albemarle for evaluation.
Without talking to anybody other than the teen, Butterfly House reported to DSS that her allegations against Morgan had been "substantiated," according to court records.
"The child was evaluated by the staff at the Butterfly House, and they determined the petitioner had abused the child based solely upon the self reporting of the child, in the absence of any physical evidence or any other corroborating evidence," Etheridge would find in a later hearing.
Butterfly House is one of a number of sites used for such evaluations according to DSS Director John Benton, who testified at the expungement hearing.
"We contract with a psychologist," Benton said later. "He does evaluations across the state. We can send individuals across the state, many different places. The decision is made as to whether the merits of the case substantiate. You are not (finding someone) 'guilty' of neglect. You 'substantiate' neglect, abuse, dependency.
"Based upon that, we look at the statutes to see whether they go on the RIL. If they meet the requirements, then my designee provides a letter. I sign it, and it goes out to the individual. Then, that individual has a choice."
Morgan had 15 days to appeal the decision to put her name on the list. Once Benton refused, she would have 30 days to ask District Attorney Maureen Krueger to do it or go to court to get a judge to order her name removed.
Krueger routinely passed such questions to the court system. She had held no hearings or heard evidence, and there had been no adversarial procedure followed - just as the justices on the appeals court said in ruling the law unconstitutional.
"You certainly know 'due process' has not been followed when you don't see it," Krueger said last week.
That is pretty much exactly what the Appeals Court said in its March 2 opinion: The secret procedures used to put people on the RIL list do not follow due process and are unconstitutional.
"The pivotal issue raised by this appeal is whether the statutory procedures for placing an individual's name on the 'Responsible Individual' List ... violate the individual's procedural due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and ... the North Carolina Constitution," the court said. "We conclude that, at a minimum, the challenged statutory procedures violate an individual's due process rights under ... the North Carolina Constitution."
The case upon which the court ruled came from Wilmington, but the constitutional issues were the same ones Blue raised in Carthage. When a DSS worker showed up at Morgan's home with the required RIL list notification, Morgan simply followed Blue's advice not to discuss the matter with anybody and refused to talk to her.
Once Etheridge ruled that there was no justifiable basis for Morgan to be on that list, it meant he would not have to rule on the constitutional question Blue had raised.
Morgan is still trying to get her name removed from another state list, one kept for statistical purposes.
In the meantime, she said she takes comfort from the appeals court ruling that the RIL process is unconstitutional and that anyone could be named a child abuser without a hearing.
"It has long been recognized that justice can rarely be obtained by secret, one-sided determination of facts decisive of rights," the appeals court said, citing case law. "Validity and moral authority of a conclusion largely depend on the mode by which it was reached ... and no better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.
"Due process is perhaps the most majestic concept in our whole constitutional system. While it contains the garnered wisdom of the past in assuring fundamental justice, it is also a living principle not confined to past instances.
"Because the statutory procedures for placing an individual on the RIL deprive individuals of due process, they are unconstitutional under the North Carolina Constitution."
Contact John Chappell at (910) 783-5841 or by e-mail at firstname.lastname@example.org.
More like this story