January 15, 2009; see amended opinion filed January 30, 2009
Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding. D.C. No. CV-03-00697-JVS.
The opinion of the court was delivered by: Bybee, Circuit Judge
Argued and Submitted October 19, 2007 -- Pasadena, California
Filed November 5, 2008; Amended January 15, 2009
Before: Jay S. Bybee and Milan D. Smith, Jr., Circuit Judges, and Richard Mills,*fn1 District Judge.
The panel has voted to deny appellee Bill Lockyer's petition for rehearing. Judge Bybee and Judge Smith have voted to deny the petition for rehearing en banc, and Judge Mills recommended denying the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. Appellee Bill Lock-yer's Petition for Rehearing and Suggestion for Rehearing En Banc is DENIED.
With these amendments, the panel has voted to grant appellants' motion for clarification. Appellant's Motion for Clarification is GRANTED.
With these amendments, the panel has also voted to grant in part appellant's petition for rehearing or reconsideration of the November 5, 2008 order. Appellant's Petition for Rehearing or Reconsideration of the November 5, 2008 Order is GRANTED IN PART.
No further petitions for rehearing or rehearing en banc will be accepted.
Appellants Craig and Wendy Humphries are living every parent's nightmare. Accused of abuse by a rebellious child, they were arrested, and had their other children taken away from them. When a doctor confirmed that the abuse charges could not be true, the state dismissed the criminal case against them. The Humphries then petitioned the criminal court, which found them "factually innocent" of the charges for which they had been arrested, and ordered the arrest records sealed and destroyed. Similarly, the juvenile court dismissed all counts of the dependency petition as "not true."
Notwithstanding the findings of two California courts that the Humphries were "factully innocent" and the charges "not true," the Humphries were identified as "substantiated" child abusers and placed on California's Child Abuse Central Index ("the CACI"), a database of known or suspected child abusers. As the Humphries quickly learned, California offers no procedure to remove their listing on the database as suspected child abusers, and thus no opportunity to clear their names. More importantly, California makes the CACI database available to a broad array of government agencies, employers, and law enforcement entities and even requires some public and private groups to consult the database before making hiring, licensing, and custody decisions.
This case presents the question of whether California's maintenance of the CACI violates the Due Process Clause of the Fourteenth Amendment because identified individuals are not given a fair opportunity to challenge the allegations against them. We hold that it does.
1. The Child Abuse and Neglect Reporting Act
California maintains a database of "reports of suspected child abuse and severe neglect," known as the Child Abuse Central Index or CACI. CAL. PENAL CODE § 11170(a)(2). California has collected such information since 1965, see 1965 Cal. Stat. 1171, and since 1988, the maintenance of the CACI has been governed by the Child Abuse and Neglect Reporting Act ("CANRA"), CAL. PENAL CODE §§ 11164-11174.
There are many different ways a person can find themself listed in the CACI. CANRA mandates that various statutorily enumerated individuals report instances of known or suspected child abuse and neglect either to a law enforcement agency or to a child welfare agency. Id. § 11165.9. These agencies, in turn, are required to conduct "an active investigation," id. § 11169(a), which involves investigating the allegation and determining whether the incident is "substantiated, inconclusive, or unfounded," CAL. CODE REGS. tit. 11, § 901(a) (2008).
In an attempt by the legislature to demonstrate how many negatives it could place in a single provision, CANRA then provides that the agency shall send the California Department of Justice ("CA DOJ") a written report "of every case it investigates of known or suspected child abuse or severe neglect which is determined not to be unfounded," but that the "agency shall not forward a report to the [CA DOJ] unless it has conducted an active investigation and determined that the report is not unfounded." CAL. PENAL CODE § 11169(a). CANRA defines a report as "unfounded" if it is "determined by the investigator who conducted the investigation  to be false,  to be inherently improbable,  to involve an accidental injury, or  not to constitute child abuse or neglect." Id. § 11165.12(a). There is no further definition of what it means for a report to be "false" or "inherently improbable," and no discussion of the standard of proof by which that determination is to be made. Presumably, a report is "not unfounded" if the investigator determines that it meets none of these four criteria.
CANRA defines two other categories of reports, those that are "substantiated" and those that are "inconclusive." A "substantiated report" means that "the investigator who conducted the investigation" determined that the report "constitute[d] child abuse or neglect . . . based upon evidence that makes it more likely than not that child abuse or neglect occurred." Id. § 11165.12(b). An "inconclusive report" means that "the investigator who conducted the investigation" found the report "not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse or neglect . . . occurred." Id. § 11165.12(c). Both inconclusive and substantiated reports are submitted to the CA DOJ for inclusion in the CACI. See id. §§ 11169(a), (c), 11170(a)(3).
To summarize, we understand section 11169(a), when read in conjunction with section 11165.12, to require agencies to investigate all reports of child abuse. Each reported incident of child abuse must then be categorized as (1) "substantiated," meaning it is more likely than not that child abuse or neglect occurred; (2) "inconclusive," meaning there is insufficient evidence to determine whether child abuse and/or neglect occurred; or (3) "unfounded," meaning the report is false, inherently improbable, an accidental injury, or does not constitute child abuse or neglect. It appears that "substantiated" and "inconclusive" reports include everything that is "not unfounded." The agency must submit both "substantiated" and "inconclusive" reports for inclusion in the CACI.
Given the high standard of proof required for a report to be dismissed as "unfounded"-false or inherently improbable- and the low standard of proof required for a report to be categorized as "substantiated"-more likely than not-with "in-conclusive" presumably encompassing everything in between, we understand the minimum evidence required for CANRA to compel the submission of a report to be something less than a preponderance, but more than a scintilla. CANRA further requires that the CA DOJ "shall maintain an index of all reports of child abuse and severe neglect submitted pursuant to" the process described above. Id. § 11170(a)(1). The CACI is maintained by means of a computerized data bank. See People v. Bernstein, 243 Cal. Rptr. 363, 367 (Cal. Ct. App. 1987).
b. Consequences of Inclusion in the CACI
CANRA states that the CA DOJ shall make the information in the CACI available to a broad range of third parties for a variety of purposes. For example, the information in the CACI is made available to the State Department of Social Services, or to any county licensing agency that has contracted with the state for the performance of licensing duties . . . concerning any person who is an applicant for licensure or any adult who resides or is employed in the home of an applicant for licensure or who is an applicant for employment in a position having supervisorial or disciplinary power over a child or children, or who will provide 24-hour care for a child or children in a residential home or facility, pursuant to [various statutory sections].
CAL. PENAL CODE § 11170(b)(4). The information is also provided to persons "making inquiries for purposes of pre-employment background investigations for peace officers, child care licensing or employment, adoption, or child placement." CAL. CODE REGS. tit. 11, § 907(b) (2008); see also CAL. PENAL CODE § 11170(b)(8). The "Court Appointed Special Advocate program that is conducting a background investigation of an applicant seeking employment with the program or a volunteer position as a Court Appointed Special Advocate" also has access to CACI information. CAL. PENAL CODE § 11170(b)(5).
The scope of CANRA is not limited to California institutions. CANRA makes the CACI information available "to an out-of-state agency, for purposes of approving a prospective foster or adoptive parent or relative caregiver for placement of a child" so long as "the out-of-state statute or interstate compact provision that requires that the information received in response to the inquiry shall be disclosed and used for no purpose other than conducting background checks in foster or adoptive cases." Id. § 11170(e)(1). Thus, it appears that if another state's agencies require CACI information for foster or adoptive purposes, the CA DOJ is also obligated to make it available.*fn2
CANRA provides that agencies obtaining the CACI information are responsible for obtaining the original investigative report from the reporting agency, and for drawing independent conclusions regarding the quality of the evidence disclosed, and its sufficiency for making decisions regarding investigation, prosecution, licensing, placement of a child, employment or volunteer positions with a CASA program, or employment as a peace officer.
Id. § 11170(b)(9)(A). The same provision also applies to out of state agencies that receive CACI information. Id. § 11170(e)(2). Although CANRA itself only requires that the CA DOJ make this information available, other statutory provisions mandate that certain agencies consult the CACI prior to issuing a variety of state-issued licenses or other benefits. For example, California Health and Safety Code § 1522.1 provides that "[p]rior to granting a license to, or otherwise approving, any individual to care for children, the [State Department of Social Services] shall check the [CACI]. CAL. HEALTH & SAFETY CODE § 1522.1(a); see id. § 1502(b). Similarly, in order to work as a volunteer in crisis nurseries, California law mandates that "[v]olunteers shall complete a [CACI] check." Id. § 1526.8(b)(2). Also, "[p]rior to granting a license to or otherwise approving any individual to care for children in either a family day care home or a day care center, the [State Department of Social Services] shall check the [CACI]." Id. § 1596.877(b).*fn3
California Welfare and Institutions Code § 361.4 similarly requires that [w]henever a child may be placed in the home of a relative, or a prospective guardian or other person who is not a licensed or certified foster parent, the county social worker shall cause a check of the [CACI] . . . to be requested from the [CA DOJ]. The [CACI] check shall be conducted on all persons over 18 years of age living in the home.
CAL. WELF. & INST. CODE § 361.4(c). Finally, California has implemented a pilot program through the State Department of Social Services ("DSS") to create a "child-centered resource family approval process" in lieu of existing processes for "licensing foster family homes, approving relatives and non-relative extended family members as foster care providers, and approving adoptive families." Id. § 16519.5(a). The approval standards under this statute include "utilizing a check of the [CACI]." Id. § 16519.5(d)(1)(A)(i). Based on these provisions, it is apparent that the CACI listing plays an integral role in obtaining many rights under California law, including employment, licenses, volunteer opportunities, and even child custody. See also Alisha M. Santana, A Pointer System that Points to the Nonexistent: Problems with the Child Abuse Central Index (CACI), 4 WHITTIER J. CHILD & FAM. ADVOC. 115, 115-16 (2004) (describing the case of a grandmother denied custody of her grandchildren because DSS discovered two hits on the CACI matching her name).
CANRA requires that at the time the agency forwards the report to the CA DOJ for inclusion in the CACI, "the agency shall also notify in writing the known or suspected child abuser that he or she has been reported to the [CACI]." CAL. PENAL CODE § 11169(b). The identified child abuser may obtain the report of suspected child abuse and information contained within their CACI listing. Id. § 11167.5(b)(11). Understandably, notified individuals who believe that they have wrongfully been included in the CACI would want to be removed from the CACI as expeditiously as possible. CANRA provides that an individual who was originally listed in the CACI pursuant to an "inconclusive or unsubstantiated report" will be deleted from the CACI after ten years, as long as no subsequent report containing his or her name is received within that time period. Id. § 11170(a)(3). There is no provision for removing an individual who was originally listed in the CACI pursuant to a "substantiated report"; such a person apparently remains listed in the CACI permanently. See id. § 11170(a)(1).
CANRA offers no procedure for challenging a listing on the CACI. CANRA does provide that "[i]f a report has previously been filed which subsequently proves to be unfounded, [the CA DOJ] shall be notified in writing of that fact and shall not retain the report." Id. § 11169(a). The statute does not describe who must notify the CA DOJ of that fact, or how the determination that a report has "subsequently prove[d] to be unfounded" is to be made. CANRA also provides that the CACI "shall be continually updated by the department and shall not contain any reports that are determined to be unfounded." Id. § 11170(a)(1). By using the passive voice, CANRA fails to specify who is supposed to determine that a report is unfounded, or how to make that decision in order to remove unfounded reports from the CACI.
Apparently, only the submitting agency can decide if a report has proved unfounded. CANRA provides that "[t]he submitting agencies are responsible for the accuracy, completeness, and retention of the reports," thus suggesting that the submitting agencies are also responsible for removing reports that are determined to be unfounded. Id. § 11170(a)(2). Furthermore, as explained above, CANRA defines an "unfounded report" as "a report that is determined by the investigator who conducted the investigation to be false, to be inherently improbable, to involve an accidental injury, or not to constitute child abuse or neglect." Id. § 11165.12(a) (emphasis added); see id. § 11165.12(b) (a "substantiated report" means "a report that is determined by the investigator . . . ") (emphasis added). Whether this definition solely references the initial determination of listing someone on the CACI, or whether it also constitutes the definition for a continuing obligation to remove someone from the CACI is unclear. These provisions suggest, however, that the investigator and agency that conducted the investigation are responsible for making, and thus correcting, the determination that a report is unfounded.
Although CANRA itself provides no procedure for an individual to challenge a CACI listing, nothing in the statute prevents a submitting agency from enacting some procedure to allow an individual to challenge their listing or seek to have a determination made that a report is "unfounded." See id. § 11170(a)(2). CANRA also contemplates that the CA DOJ "may adopt rules governing recordkeeping and reporting," which may allow the CA DOJ to enact some procedure beyond that provided by CANRA. Id. § 11170(a)(1). To this point, we are unaware of any regulations that provide additional regulatory procedures for challenging a listing on the CACI or the validity of the underlying report. To the contrary, the CA DOJ explicitly "presumes that the substance of the information provided is accurate and does not conduct a separate investigation to verify the accuracy of the investigation conducted by the submitting agency." CAL. CODE REGS. tit. 11, § 904 (2008).
B. The Humphries' Nightmare
The Humphries' nightmarish encounter with the CANRA system began on March 17, 2001, when S.H., Craig's fifteen year-old daughter from a previous marriage, took their car and drove to her biological mother's home in Utah. S.H. had previously lived in Utah with her biological mother and stepfather and their three younger children. In June 2000, S.H's biological mother called Craig and said she wanted S.H. to live with the Humphries in Valencia, California, on a trial basis. The night of March 17, S.H. took the Humphries' car without their knowledge, drove to her mother's home in Utah, and reported that the Humphries had been abusing her for several months. An emergency room physician diagnosed "non-accidental trauma, with extremity contusions."
1. The Humphries' Arrest and Inclusion in the CACI
Based on an investigation from the Utah police, the victim's statement, and emergency room records describing the victim's allegations, on April 11, 2001, Michael L. Wilson, a detective for the Family Crimes Bureau of the Los Angeles County Sheriff's Department ("LASD"), obtained probable cause warrants to arrest the Humphries for cruelty to a child, CAL. PENAL CODE § 273a(a), and torture, id. § 206. On April 16, Detective Wilson, accompanied by fellow detective Charles Ansberry, arrested Craig and Wendy Humphries, and booked them on the single charge of felony torture under California Penal Code § 206. The same day, a Sheriff's deputy, without a warrant, picked up the Humphries' two other children from their schools and placed them in protective custody.*fn4
Both children denied any fear of abuse or mistreatment and indicated their desire to return home. Custody of the children was then transferred to the County Department of Children and Family Services, which placed the children in foster care.
On April 17, 2001, the day after the Humphries were arrested, Detective Wilson completed a child abuse investigation report identifying the Humphries' case as a "substantiated report" of child abuse.*fn5 Pursuant to CANRA, this information was sent to the CA DOJ, which in turn created a CACI listing identifying Craig and Wendy Humphries as child abuse suspects with a "substantiated" report.
2. Judicial Proceedings Exonerating ...