A Tennessee woman has asked the nation’s highest court to intervene in a case that highlights what one federal judge called “a glaring hole” in Hawaii’s regulations for its child abuse registry.
Courtney Bird, who was placed on the registry in 2007 without her knowledge, is asking the U.S.
Supreme Court to reverse a 9th Circuit Court of
Appeals ruling that she failed to file a lawsuit against the state Department of Human Services within the two-year statute of limitations. DHS oversees the registry.
While noting the lack
of the timely filing, Judge Jay Bybee, one of three 9th Circuit judges who issued the August ruling, wrote in an accompanying opinion that he was astounded by the state’s defense of its flawed procedures relating to the registry.
“I don’t understand how the state of Hawaii can maintain such arguments with a straight face,” Bybee wrote. “Ms. Bird was plainly denied due process.”
In their request to the Supreme Court, Bird’s attorneys highlighted the impact of the 9th Circuit ruling, saying it “condemns countless innocent persons to a lifetime of
being falsely labelled as child abusers by the state of Hawaii.”
There’s no guarantee the high court will review the Bird case. It gets hundreds of petitions each year, and the majority are not taken up by the justices.
Bird filed her DHS lawsuit in 2015 after trying
unsuccessfully to have her name removed from Hawaii’s registry once she discovered in 2012 that she was on it. When the lawsuit was dismissed by a federal judge over the statute of limitations issue, Bird appealed to the 9th Circuit.
Her attorney, Margery Bronster, told the 9th Circuit panel 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 was continuing to
be harmed by being unfairly branded a child abuser.
Bird’s name was added based on a DHS investigation following the 2007 death of her infant daughter in Hawaii. At the time, she was married to a
The investigation, which Bird disputed, concluded that both parents were
culpable for the daughter’s abuse, according to court records.
But a Naval Criminal Investigative Service probe that Bybee described as “much more thorough” ruled out Bird as a suspect and implicated her then-husband, Frank Fontana, who later was sentenced to 10 years’ imprisonment for manslaughter.
During the 9th Circuit hearing, the state argued that Bird must have known about the child’s abuse and didn’t report it or did nothing to prevent the abuse.
After the infant was injured, DHS removed a second child from Bird’s custody.
Bird eventually regained custody after meeting DHS requirements designed to
ensure the child’s safety, and moved to Tennessee in 2008 — not knowing that she had been placed on the registry the year before.
If those placed on the
registry are unable to prevail in court or at an administrative hearing to challenge the department’s finding, they remain on the list essentially for life, labeled a confirmed abuser. Hawaii is among a
minority of states that keep people on the abuse registry permanently.
Registry information is available to those authorized to do background checks, such as schools, hospitals, adoption agencies and child care providers. A person with a confirmed finding can have trouble getting jobs working with children.
Bird discovered that she was on the Hawaii list when she and her new husband tried to adopt a child in 2012 and the registry information was flagged during a background check. The adoption didn’t go through.
Under Hawaii procedures, DHS can return a child to a parent and still keep the parent’s name on the registry without giving him or her a hearing to challenge that, Bybee noted in his written opinion.
Even if Bird had known her name was on the list, the only way she could have obtained a hearing was to decline the opportunity to get her child back and pursue litigation to get a judgment, according to Bybee.
“That makes no sense,” he wrote. “The parents who settle with DHS and thus forgo adjudication get their child back but may be barred forever from teaching school or coaching Little League.”
Bybee said the state wronged Bird twice, first by listing her at all and then by “denying her an opportunity to prove that she didn’t deserve to be blacklisted.”
The state’s position that Bird had the burden to insist on adjudication even though she didn’t know she was on the list was “just astounding,” he added.
The state prevailed only because of the statute of limitations issue, according to Bybee.
“DHS should not interpret our decision today as in any way condoning the blatantly insufficient procedures by which it maintains Ms. Bird’s name in its (registry),” he concluded.
Asked for comment, Krishna Jayaram, a spokesman for the Attorney General’s Office, which represents DHS, issued a written statement.
“Even if the Supreme Court decided to hear the case, we are confident they would uphold the 9th Circuit’s decision in our favor,” he wrote. “With respect to the comments made about our child abuse registry, the record in the appeal did include the fact that the allegations of physical abuse of the seven-week old infant and the threat of abuse/neglect
of the 21-month old toddler by both parents were confirmed by the Department of Human Services.”
Bronster criticized the state’s response.
“They don’t even try to justify (the lack of due
process), and they haven’t changed it,” she told the
Honolulu Star-Advertiser. “And that’s disappointing.”