Hawaii’s system for listing people on a registry of child abusers “makes no sense” and may have resulted in a “great injustice,” according to an opinion by a U.S. appellate court judge.

The case involved Courtney Bird, who was put on the registry without her knowledge after the death of her daughter in Honolulu in 2007. Her husband later confessed to abusing the child, and Bird was exonerated. But five years later, remarried and living in Tennessee, she and her new husband tried to adopt a child from Africa, and found it would be impossible because of her listing in Hawaii as a child abuser.

Last week, the 9th U.S. Circuit Court of Appeals agreed with a federal district court that Bird’s claims against the Hawaii Department of Human Services, which maintains the registry, should be dismissed because she did not file her lawsuit within the two-year statute of limitations.

But Judge Jay Bybee, while concurring with his colleagues about the statute of limitations, found major flaws with Hawaii’s child abuse and neglect registry.

“The state has twice wronged her: first by listing her at all; second, by denying her an opportunity to prove that she didn’t deserve to be blacklisted,” he wrote.

Cory Lum/Civil Beat

In May, Civil Beat wrote about Bird’s case in the context of a similar story of a woman who claimed she was wrongfully included on the list. Julia Milam said she was denied the chance to become a nurse after the state marked her as a neglecter of her children without telling her of the implications or giving her a chance to appeal.

In Milam’s case, the state took custody of her two children in 2012 after child welfare workers concluded she had failed to prevent them from witnessing fights she was having with her boyfriend, a form of neglect.

Milam denied that the children ever saw the abuse. But without notification, the state put her on the registry, which is checked by hospitals and health care facilities that might have hired her if she had pursued a lifelong dream of becoming a nurse. She could have fought it in 2012, if she had known. But even then, it might have meant delaying getting back her children to wage a protracted battle in court.

Every state maintains a registry of those believed to have abused or neglected a child. They began in the 1960s as a way for those who deal with child abuse, from doctors to social service workers, to maintain information for internal use. But over the years, the registries started being used in other arenas. Today, inclusion on a child abuse list can be a kind of scarlet letter barring a person from teaching or working with children, adopting, fostering or coaching youth sports.

They differ from the much better-known sex offender registries in at least one crucial way — a person doesn’t have to be convicted of a crime to be included.

Hawaii’s DHS handled 6,445 registry checks in 2018, including 3,362 from potential employers. Other checks involved child-care licensing, foster parents and other categories.

The states vary considerably in how they use the registries. In some, like Hawaii, inclusion on the list is for life, while others tailor the length of time to the seriousness of the offense.

In Bird’s case, she returned home from a dentist’s appointment one day in 2007 to find her husband of two years, Frank Fontana, performing CPR on their six-week-old daughter, who later died at Tripler Army Medical Center. Up until that point, the infant girl had been well and showed no signs of abuse.

DHS, per its regulations, listed both Bird and Fontana on the list of suspected child abusers without informing them, and DHS sought custody of their remaining daughter.

Fontana, who was in the Navy, later confessed to abusing the daughter who died and pleaded guilty. The Navy concluded that Bird was not a suspect.

But under the regulations in place at the time, DHS had to find that placement on the registry was “frivolous or in bad faith” before removing a name. It found that neither criteria was met in Bird’s case, so she remained on the list as a “confirmed” child abuser.

Later that year, Bird complied with DHS requirements to regain custody of her surviving daughter rather than pursuing a full-blown family court case. She then left Hawaii.

She says she only learned about her inclusion on the registry five years later, when she and her new husband tried to adopt a child from Africa, preferably an older, HIV-positive child who would benefit from medical care in the U.S. Her listing on Hawaii’s registry made her ineligible.

In its decision last week, the 9th Circuit found that DHS’s system for including people on the registry leaves no recourse for some parents.

“I don’t understand how the State of Hawaiʻi can maintain such arguments with a straight face. Ms. Bird was plainly denied due process of law.” — Judge Jay Bybee

If the case never gets to family court, DHS allows an administrative appeal. Likewise, if it goes through adjudication in family court, parents may be exonerated and have their names removed. But parents whose cases go to family court but comply with DHS requirements rather than going through adjudication, as happened in Bird’s case, lack any options for getting off the list.

Bybee zeroed in on this Catch-22.

“In that circumstance,” he wrote, “the only way the parent can get a hearing on the … listing is to decline the opportunity to get the child back and pursue litigation in the family court to full adjudication. This makes no sense.”

In Bird’s case, he wrote, the state never told her she was on the list and then afterward said she should have known to pursue unnecessary adjudication, a position he described as “just astounding.”

“I don’t understand how the State of Hawaiʻi can maintain such arguments with a straight face,” he wrote. “Ms. Bird was plainly denied due process of law.”

Though the state avoided being compelled by the court to change its ways, he wrote, “it can always choose to do the right thing voluntarily. In any event, 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 Central Child Abuse Registry.”

Bird’s attorneys did not respond to a request for comment. DHS said it did not have someone immediately available to discuss the case.