New York OCFS denied thousands accused of child abuse the chance to clear their name

"" By John O’Brien / The Post-Standard

March 22, 2010, 6:00AM

Syracuse, NY – The State Office of Children and Family Services in 2004 had a backlog of requests for hearings from people accused of mistreating children.

Three women had recently sued the agency over the delays that were costing them jobs working with kids because they couldn’t get their names cleared.

The agency had a solution to the thousands of pending written requests that would come under scrutiny by the lawsuit, according to sworn testimony from state workers: Shred.

For a month in 2004, the workers were under orders to take carts of the requests for name-clearing hearings and shred them after hours in their Albany offices, according to the testimony. They shredded about a thousand a day for a month, one OCFS worker testified.

The revelation came in a proposed settlement of a class-action lawsuit last month that could affect 25,000 people across the state who are listed in a statewide database as reported child abusers. Under the settlement, anyone who requested a hearing on child abuse or maltreatment charges but never got it regained the right to the hearing.

Employers such as day care centers check the database to see if a job applicant was ever accused of child abuse. Those accused could request a hearing with OCFS to clear their names. More than half of those challenges result in the accused person being cleared, according to Thomas Hoffman, a lawyer for the three women who sued the state over the lengthy delays.

Those women claimed they lost opportunities for jobs working with children because the state took up to two years to give them a name-clearing hearing. By then, the potential employer had filled the job opening.

Four years after the suit was filed, a whistleblower who works for OCFS called Hoffman, he said.

She told him how the agency was getting rid of the written requests for hearings, then marking the case “waived” or “withdrawn” on the database, court papers said.

The state never told the accused. To the inquiring employer, it would appear that the person had given up on their request for a hearing, and the child abuse accusation stood.

The backlog of hearing requests was much longer than two years — some requests had been sitting around for seven years, court papers said.

The whistleblower came forward in February 2009.

Hoffman then took testimony of 18 or 19 OCFS workers about the handling of the requests for hearings, he said.

In some cases, workers called the prospective employers with whom the accused person had applied for a job, according to the workers’ testimony.

If the employer was no longer interested, the state workers were told to mark the file “waived,” according to the testimony of six OCFS workers.

The accused person was never notified in those cases.

The written requests were shredded or thrown in the garbage,
at least three of the workers testified.

If the whistleblower hadn’t come forward about the shredded cases, Hoffman would never have known the extent of the backlog, he said.

Cathy Dufty, a clerical worker in the office, testified that Supervisor David Peters ordered her to gather a bunch of temp workers and start shredding.

“I would go down to his office about 3:30 and I would take the cart back, and it would be, ‘These are to be shredded, and these over here are to be refiled,’” Dufty testified last year.

Peters was then the director of the statewide Central Register of Child Abuse and Maltreatment.

He has since retired. In his deposition for the lawsuit, Peters denied that his agency did anything improper, Hoffman said. Peters could not be reached for comment.

The assistant state attorney general who represented the state in the lawsuit, Robert Kraft, refused to comment.

A spokeswoman for OCFS, Pat Cantiello, said no one from the agency could comment because the settlement has not yet been approved by a federal judge.

The whistleblower, who still works for OCFS, also would not comment.

Under the proposed settlement, the state would have to send notices to the 25,000 people on the central register whose requests for hearings were ignored between 2003 and 2007.

U.S. District Judge Shira Scheindlin will hold a hearing in April in Manhattan, then decide whether to approve the settlement.

As part of the settlement, the state agreed to stop the practice of calling potential employers to see if they still wanted to hire the person accused of child abuse.

The state agreed that the accused person has a right to a hearing whether the employer is interested or not, Hoffman said.

The settlement only applies to people who requested a hearing and never got one. It doesn’t affect anyone who never requested a hearing or who withdrew his or her hearing request.

Once the settlement is approved, Hoffman will submit a bill for legal services to the court. The state will pay those costs, but will not pay damages under the proposed settlement.

Anyone who might be affected should check Hoffman’s Web site on the case: www.RegistryClassAction.com .

The state gets about 350,000 inquiries a year from prospective employers, including child care centers, foster care agencies, juvenile detention centers and other employers who work with children. The register is accessible only to employers who are required to check a job applicant’s background.

"The employer doesn’t know why you’re on the list,” Hoffman said.

“You could be a pedophile or it could be something benign.” """


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