Case exposes flaws in Hawaii’s child-abuser registry, critics say

For the past seven years, Courtney Bird, 38, has been trying to get off Hawaii’s registry for child abusers, a confidential list that includes about 40,000 names.

Unbeknownst to Bird, the state placed her on the registry in 2007. To this day, it considers her a confirmed child abuser.

But when Deputy Attorney General Ryan Akamine emphasized that point at a recent 9th Circuit Court of Appeals hearing at the University of Hawaii, he received a stern rebuke from one of three federal judges presiding over the case.

“Wow, counsel,” said Judge Jay Bybee, interrupting Akamine’s opening statement. “That just seems contrary to everything in the record. If that’s your opening salvo, you lost me completely. There is nothing in this record that suggests she is a confirmed child abuser, and there’s every reason to believe she is not.”

The 9th Circuit panel later issued a two-paragraph order referring Bird’s case against the state to mediation. The order noted, among other things, “the apparent inadequacies” of the state’s procedures. It did not elaborate.

The Bird case highlights what critics say are major flaws with Hawaii’s registry system, including a lack of due process.

Bird’s attorney, Margery Bronster, told the 9th Circuit that the law governing the registry is unconstitutional, given that her client received no notification about being placed on the list, had no meaningful way to get off it and is continuing to be harmed by being unfairly branded a child abuser.

Unlike many other states, Hawaii keeps people on the list permanently, regardless of the level of abuse. In some cases, including Bird’s, the placements are based solely on investigative findings by the Department of Human Services, not court rulings, and some critics say the investigations are biased or not thorough.

Chicago attorney Diane Redleaf, who has written about registries nationally and is co-chair of United Family Advocates, said Hawaii’s procedures appear flawed.

“It’s across the board,” she said. “Hawaii has problems with due process and fairness.”

Leaving someone on the registry permanently is particularly reprehensible, Redleaf added.

DHS officials defended the procedures, saying investigations are conducted fairly, people are informed about the findings and have an opportunity to challenge the results.

“We work really hard at getting notices out and informing parents, both verbally and through writing, about the disposition and their right to a fair hearing,” said Kayle Perez, administrator of the department’s Social Services Division, which includes child welfare services.

“There are many where we don’t prevail,” she told the Honolulu Star-Advertiser. “So I see the process as fair.”

In addition, department officials said, state law requires that registry records be expunged only under two scenarios: a court dismisses the department’s petition alleging abuse or a report is deemed unconfirmed.

Federal and state law, they add, enable DHS to keep records even when allegations are unconfirmed so future risk and safety assessments involving the same family or individuals can be made. The unconfirmed reports are only for internal purposes, according to DHS — though the federal government and advocates have taken issue with how some of that information has been used.

“We work within the confines of the law to maintain records so that we can achieve our mission of keeping kids safe,” the agency said in a statement.

Labeled for life

If those placed on the Hawaii registry are unable to prevail in court or at an administrative hearing challenging the department’s abuse finding, they remain on the list essentially for life. Some have been on it since the late 1960s, when the state created the registry.

Being labeled a confirmed abuser can prevent someone from adopting a child, becoming a foster parent or getting a job working with children — even years after placement on the list. The list isn’t public, but employers of those who deal with children and agencies that oversee adoptions or foster parenting are able to get confirmed registry information for background checks on applicants.

Registry procedures are governed largely by state laws, and those vary greatly.

At least 30 states set time limits on how long a confirmed abuser remains on their registries or when the person is able to request removal, according to a Honolulu Star-Advertiser review of laws in the various states and an emailed survey of states with laws that were unclear.

Illinois, for instance, removes names after five years in the least severe cases, 20 years in more serious ones and 50 in the most serious, including deaths from abuse.

Some states remove names once the victim turns 18 or older.

At least 10 states besides Hawaii keep people on their registries permanently, according to the Star-Advertiser review.

The laws in the remaining states were silent on the issue of permanency, and representatives did not respond to emailed requests for additional information.

For years, Hawaii’s process fell short of some states in another way. Until 2015, DHS did not let people specifically know that a finding of confirmed abuse or neglect resulted in their names being placed on the registry.

That means an unknown number of people — some attorneys say it’s likely in the hundreds — don’t even know they are on the list.

In older cases especially, some parents who had confirmed findings often completed programs required by DHS and didn’t even realize their names had been placed on the registry, let alone that they would remain on the list long after the cases were closed and the parents no longer had any involvement with the department, attorneys say.

Bird was among that group.

Abuse investigation

In 2007, Bird returned to her Oahu home from a dental appointment to discover her then-husband, Navy man Frank Fontana, performing CPR on their infant daughter, according to court records.

Investigators with the Naval Criminal Investigative Service ruled out Bird as a suspect but obtained a confession from Fontana, the records show. He eventually was sentenced to 10 years for manslaughter, a NCIS spokesman said. Fontana served less than five years behind bars.

The DHS investigation, which Bird disputes, concluded that both parents were culpable for the child’s abuse, according to the court records.

At the 9th Circuit hearing, Akamine told the three-judge panel that Bird was home on other days when her daughter suffered injuries. “She must have known and didn’t report it or didn’t do anything to prevent the abuse,” he said.

Bybee voiced skepticism.

During the baby’s short life, according to the judge, she was taken many times to the hospital by her “devoted parents” because of ongoing health issues, and no doctor saw any evidence of abuse. Bybee also mentioned the difference between the findings of the Navy and DHS investigations.

“I just can’t see anything in this record that would suggest that that is a justified conclusion,” Bybee said of the state’s position. “It would seem to be contrary to everything that the NCIS, which conducted a much more thorough investigation, concluded.”

The couple had two children in 2007, and the second one was taken into state custody even as the two investigations proceeded.

After home checks, supervised visits and evaluations by social and medical workers, Bird regained custody of the second child and moved to Tennessee to live with her father in 2008.

That same year, her DHS case was closed and not once did anyone inform Bird that her name had been put on the registry, according to court records.

Caught unaware

When she and her new husband, Bill Bird, tried to adopt a child in Tennessee in 2012, the background check turned up the confirmed finding of abuse in Hawaii, derailing the planned adoption, Bird told the Star-Advertiser.

“We were shocked,” she said. “I didn’t even know the registry existed.”

Attorneys who do child welfare cases say it’s not unusual for parents to be unaware of the lasting ramifications of such cases, especially if they don’t know their names are on the registry.

“People get confirmed all the time, and they don’t have a clue (about the registry),” said attorney Frank O’Brien, who ensures his clients understand the repercussions of confirmed findings.

Even though Bird didn’t get written notice in 2007 that her name was added to the list, her lawyer at the time should have known the law, Akamine told the 9th Circuit judges.

That explanation produced pushback from the panel.

“Did the state give her any notice?” Bybee said. “The answer is no.”

Rules revised

Since at least July 2015, however, DHS started giving such notice, according to the agency. The forms it sends people informing them the department’s investigation has confirmed a finding of abuse or neglect includes a statement that the information will be entered into the registry.

The form has been revised since then, adding a line informing recipients the confirmed finding “may affect your ability to gain employment that involves children or vulnerable adults.”

Based on a law change made by the Legislature in 2017, the department dropped the requirement that abuse reports must be found to be “unsubstantiated” — made in bad faith or frivolous — as one way to get them expunged from the registry. The law kept the two other paths to removing the records: prevailing in court or at an administrative hearing.

Bronster told the 9th Circuit that Bird could not show that the DHS findings from 2007 were frivolous or made in bad faith, leaving her no way to get off the registry. A federal judge had previously decided that Bird’s 2015 lawsuit against DHS was filed outside the two-year statute of limitations, a decision that was the subject of the appeal hearing at UH in February.

Although the frivolous and bad-faith standards still are in DHS’ administrative rules, those rules are being revised, and the department said it has not used those standards since 2017.

Frustration remains

Even as DHS has made such changes, Bird is frustrated that she remains on the registry.

Her legal challenge, which among other things alleged a violation of her constitutional right to due process, is on hold pending the mediation.

Bird, who still lives in Tennessee and has three children ages 7 to 13, said she doesn’t understand why she’s been branded a child abuser when her former husband was the one who killed their daughter.

“Why do I get hit with the same label when I didn’t do anything wrong?” she said.