Slow Dancing With a Nightmare
Published on October 7, 2008
Karmen Hassinger was forging a good life for herself and her children. Then the State of Washington entered her world like a flaming spear. If it could happen to her, she says, it could happen to you.
Among the worst days in Karmen Hassinger’s life was the one, three years ago, when she got called to a meeting at work. This was in 2005, a year which, for her, should have been a good one. A well-trained and valued worker, she’d just gotten a promotion to be the assistant manager at the Nurturey Child Care Center just north of downtown Spokane.
What she didn’t see, and could not have seen coming, was the javelin headed her way from Olympia. It was a letter telling the owner of the Nurturey that Karmen Hassinger wasn’t who everybody at the Nurturey
thought she was. In her five years as a child and adult care provider in Colville and Spokane she had, by that time, passed three background checks. But there it was, in black and white. The state’s Department of Early Learning (DEL) had decreed that Karmen Hassinger was a threat to children. The upshot of the letter was that if the Nurturey didn’t act to remove Karmen, the day care would lose its license.
“I remember the day they told me that,” she recalls. “And I just started crying. I just couldn’t believe it.”
Even as the shock of the letter began to wear off, Karmen says, she was still “totally stumped.” Of the two questions on the table then, the more important one was what was going to happen to her and her job.
“This is my life,” Karmen says, “this is all I know. Taking care of people. And if I can’t do that, then what am I going to do with myself?
Fortunately, for both Karmen and the Nurturey, they found what was at least a temporary solution. Under state rules, they learned, she could continue in her administrative position at Nurturey provided she received a waiver from the day care owner, and the owner could assure the state that Karmen Hassinger, trusted worker and mother of three, would have no contact with the children under Nurturey’s care.
There were, however, several things that Karmen didn’t know.
Incredibly, the action that triggered the letter from DEL was an anonymous complaint made to the state’s Child Protective Services (CPS) nine years earlier. This was when Karmen was only 17 and living with her husband and their infant son. She would never know who made the complaint. Moreover, she’d never even been told what the accusation was. She also didn’t know that the reprieve of the waiver from Nuturey’s owner was tenuous at best. She was actually under the mistaken impression that the waiver was transferrable. It wasn’t. If she were to lose her job at Nurturey or choose to work for another state-licensed day care facility, she would need a new waiver from her new employer. It was the professional equivalent of having a scarlet letter on her resumé. But, for the time being, the crisis in 2005 seemed to pass. Life went on.
There were, however, a few grimly disturbing facts about what had happened to her.
The first is that the original anonymous allegation, according to the state’s own files, appears to have been completely bogus. While she remembers being told by her husband that a CPS worker had come to the door while she was away. Karmen does not remember the case worker actually entering the home to make observations. But when attorneys for the Center for Justice began looking into Karmen’s case, years later, they found a social worker’s notes in the file. The notes did not substantiate the complaint. There was no evidence of drugs or alcohol abuse, their infant was being properly cared for, and the home, according to the notes in the CPS file “was pretty well cleaned.”
Notwithstanding the social worker’s inability to substantiate the claims made against Karmen and her husband, the original anonymous complaint to CPS nevertheless stayed in Karmen’s file. It stayed there without either her knowing about it, or having any opportunity to rebut it. What’s worse, is that in the parlance of the state’s enhanced child care provider review system, under the new Department Early Learning (DEL), it became what is known as a “founded finding.” As in a founded finding that Karmen was a perpetrator of child abuse or neglect as described in RCW 26.44.125.
It turned out that the State of Washington had actually accumulated quite a bit of evidence that, in addition to being an exemplary worker, Karmen Hassinger is also an exemplary mother. It’s just that this evidence, in the state’s hands, counted for nothing.
Two other facts about Karmen Hassinger are that she’s never had a lot of money and has not lived what many people might regard as a conventional life.
She got married at age 16, divorced twice before she was 25, and has three children, two boys and a girl, by three fathers.
Suffice to say that her family life has been complicated by the demands and difficulties of a complex and, at times, troubled child custody routine. There were domestic incidents that prompted Karmen, herself, to notify CPS. Her second husband was eventually diagnosed with a mental health disorder and painfully debilitating diabetes. To help care for him and the daughter with whom the two shared custody (a court had earlier denied her request for sole custody) Karmen moved back in with her troubled second husband in 2006. The interactions were complicated but all were in conformance with a parenting plan worked out after a court review in 2003.
On a mid-January night in 2007, Karmen and the father of her third child wanted to have an evening out by themselves in Spokane. While they were away from their home on the West Plains, there was an argument between her ex-husband and their daughter, Karlee, during which Karlee reported, by telephone, that she was slapped. That ended Karmen’s evening on the town in Spokane. Karlee had stopped crying and she and the other children were fine when their mother returned. It seemed to be nothing more than a lesson learned.
A few days later, though, Karmen’s ex-husband reported to a mental health counselor that he had slapped Karlee during their argument. By law, the counselor was required to report this to CPS. The report triggered an investigation that covered not just the incident in January, but earlier events involving the ex-husband.
With that Karmen’s life and the lives of her unconventional family exploded.
Immediately, the state seized her three children and put them in emergency foster care. If there was any silver lining in that tragedy, it was that Karmen Hassinger was entitled to a public defender in the proceeding that would decide whether the state could continue to keep her children from her.
One of those who testified during the proceeding was Andraya McGregor, a family preservation therapist, who made clear, based upon observations she had been gathering via weekly visits with the family, that the state was making a big mistake.
“She [Karmen] has been extremely resourceful and resilient in her current situation, only to be handed one trial after another,” McGregor wrote. “This family has been failed by the system. Ms. Hassinger is fully capable of parenting and supervising her children. She has shown that she as great follow-through and determination in providing her children with that they need. She has complied with all requests from Family Preservation Services and the Division of Children and Family Services.”
Based in part on McGregor’s finding and recommendation, Karmen Hassinger got her family back.
“They had the kids for a month,” Karmen remembers. “And then as soon as I got my kids back, is when they took my job away.”
While she was fighting to get her children back, the state’s Department of Social and Health Services (DSHS) had reached a separate conclusion: that Karmen was guilty of child neglect. The upshot of this was that while she could have her children, she could not have her job. Moreover, DSHS ordered that none of the fathers of her children could have contact with them.
“That was a struggle,” Karmen says. “None of the fathers were allowed in the home. So, here I was, a single mother with three kids, and I have to get them back to where they were before all this happened. And struggling to find a new job. It was very hard for everybody. Very hard.”
The state had revoked the waiver it had issued to the Nurturey Day Care Center in 2005. If the Nurturey continued to employ Karmen in any capacity now, it would lose its license. Karmen was now officially blacklisted. Notwithstanding an impeccable work record, the background checks, and the continuing training and education she had successfully completed, she was prohibited from working with children, period. Her prospects for getting her life back were bleak.
Among those outraged by how the State of Washington was thrashing Karmen Hassinger was her public defender, who contacted Center for Justice attorney Bonne Beavers to see if CFJ could assist. The Center agreed to take up Karmen’s cause. And once Beavers and fellow CFJ attorney Terri Sloyer began digging into the case, they were increasingly appalled at what they discovered both about the evidence and how the state was using its rules to emotionally and economically strangle a good woman living a tough life.
The first thing the two CFJ attorneys and intern Liz Regalado found were holes and errors in the investigation into the 2007 incident that resulted in Karmen losing both her children and her job. While Karmen’s ailing second husband had made mistakes, the accusations about his conduct and the purported dangers he posed to the children were wildly overblown. This mattered because the state’s claims of child neglect against Karmen were based not upon anything she had done to the children, but upon the charge that she had ignored the dangers that her second husband allegedly posed to the children.
For her part, Karmen couldn’t help but feel as though the state’s investigators were punishing her not for any danger to the children, but for her unconventional family.
“I know a lot of people wouldn’t be able to live with their ex [husband] and their boyfriend at the same time,” she says. “I mean, you hardly hear of that. But we were a family. We were getting along. We were making it work. And her [Karlee's] dad was really sick then. He’s doing better now. They got him an insulin pump. So he’s doing a lot better. But at that time he wasn’t and we all all worked together as a family, and we got along.”
On this issue, at least, Karmen and the Center’s legal team had somewhere they could go. They could appeal the 2007 DSHS findings to an administrative law judge. There they could set the record straight with evidence and witnesses. Sloyer and Beavers and Regalado were preparing to exonerate Karmen Hassinger through the administrative hearing process when, in so many words, they were told by state officials that if Karmen Hassinger prevailed in the appeal, it simply wouldn’t matter to the state.
Here’s how Sloyer puts it: “So, here’s what the Department of Early Learning says, ‘that’s fine, you to go trial on that, but even if you prevail she will still have the 1996 finding, and we will not issue another waiver.’ And here’s what they kept saying: ‘it doesn’t matter. Even if you prevail that’s two incidents.’ And we said, ‘it’s not two incidents because she [Karmen] would have prevailed.’ And they would say, ‘but we know what the allegations were so we’re not going to grant a waiver.’”
To the CFJ legal team, what the State of Washington was saying is that it was determined to end Karmen Hassinger’s life as she knew it, no matter what.
There were only two things to be done.
The first is that Karmen, with CFJ’s help, would make her case in an appeal before an administrative law judge (ALJ). The appeal went to a hearing. Karmen Hassinger was exonerated.
The ALJ’s decision at least prompted the state to back up a half step. The state officials informed the CFJ legal team that they would now be willing to re-instate the waiver to Nurturey that the state had granted two years earlier. The Center’s response: no way.
“One,” says Sloyer, “the waiver is tenuous because she’s not going to be at the Nurturey forever, and she has trained her whole adult life in child care, this is what she does. We don’t want to put her in a position where if she’s looking for new employment she’s got to say to the new employer, ‘oh, by the way, you’re going to have to get a waiver.’ And, second, our firm belief was that, in 1996, when she didn’t get notice to be able to challenge the finding, that this is Constitutionally inadequate. You cannot do this to a person.”
The next step for the Center was to approach the assistant attorney general representing DSHS with a lengthy January 25, 2008 letter, laying out the evidence and history of Karmen’s grief at the hands of the state, and teeing up the federal Constitutional issues of due process. Implicit in the letter was the threat of federal civil rights lawsuit against the state.
In response, the state settled. The 1996 “founded finding” was deleted.
“I always say that if it wasn’t for the Center for Justice this couldn’t have happened,” Karmen says. “They gave me my life back. I couldn’t have done it by myself. I don’t even know the first step in the legal world. It would have been too hard. I want to be a nurse some day and I wouldn’t have been able to do that with this hanging over my head.”
Even so, it was hardly no harm, no foul. Karlee and her older brother, Karmen says, were still receiving counseling as recently as this fall to help cope with the trauma inflicted on them last year when the children were taken from their mother and their fathers.
“We’re still struggling to get our lives back on track to this day,” she says.
“It wasn’t fair,” she says when asked what she thinks this means for others. “It just reminds me of when people tell me if it can happen to you, it can happen to anybody. If it can happen to me, it can happen to anybody.”
And, in fact, it has happened to someone else, another woman with children of her own, who became a Center for Justice client after she was referred to CFJ by her private attorney.
The woman did not want her real name used for this story. So we’ll identify her by the fictitious name of Grace Jones.
In 1993 Grace Jones was recently divorced and had only recently moved to western Washington with her young son and daughter. She landed in a mid-sized town north of Seattle where she began working as a kindergarten aide and substitute teacher. Jones’s daughter is autistic and was then prone to violent outbursts that often included hitting and throwing objects. One October evening, looking into Jones’s home through a window, some neighbors thought they witnessed Jones throwing books at her daughter.
One of the neighbors called CPS and CPS investigated. Jones’s account of the incident differs from what the neighbor reported.
“At the time of the stated incident,” she wrote in an April 26, 2006 letter to the DSHS Office of Administrative Hearings, “[my daughter] was out of control and scratching and kicking, biting, and head butting, as well as throwing items at me. I tried a physical restraint, but was hurt and it was not possible to contain her. I was blocking and throwing the items (books) away from me as [she] threw them, I was not throwing directly at her. The persons witnessing the incident were a yard away and looking through a darkened window, as our window was darkened also. They did not see the events, [her] out of control behavior before they thought they saw me throwing books at [her].”
The caseworker who investigated the complaint found no evidence that Grace Jones’s daughter had been injured in the episode.
This is a literal passage from the CPS report at the time: “The child has significant delays and problems [sic] behavior which can be frustrating to all involved with her. Mothers [sic] under a tremendous number of stressors [sic] at the time but has good skills and understanding of child’s behaviors and needs.”
Despite the fact that the CPS caseworker, herself, termed the episode an “isolated incident,” the incident was still entered into the agency’s books as a “founded finding” of child abuse. As with Karen Hassinger’s “founded finding,” Grace Jones wasn’t informed about it and had no opportunity to contest it.
Thirteen years passed. There were never any other allegations of abuse or neglect reported to CPS or investigated by the agency.
Jones moved to another Puget Sound community to take a teaching position and she eventually moved to Spokane where she took another school district job. She passed background checks with each new teaching position and even received a contract from the DSHS Division of Developmental Disability to provide services to her daughter.
In the summer of 2006, to earn some extra money and evaluate a possible career shift, Grace Jones applied for two day care jobs in Spokane. And that’s when she first learned that the state, in its files, had her on the DSHS black list as a child abuser.
“I was astonished,” she says. “I couldn’t believe it and I wanted to try to clear my name.” To help her fight back she first contacted and was represented by private attorney Lisa Dickenson. After nearly two years of trying to help Jones get a hearing to clear her name, Dickenson referred Jones’s case to the Center for Justice.
What the Center’s lawyers immediately recognized in Grace Jones’s case is that she was being unfairly victimized by the same state rule and practice that had nearly broken Karmen Hassinger and her family.
The problem, in a nutshell, is that prior to 1998 there simply was no opportunity, by rule, for a person tagged by DSHS with a “founded finding” of abuse or neglect to get a hearing where he or she could even contest the finding. In October 1998, the rule was changed by law so that, since that time, “a person named as an alleged perpetrator..in a founded report of child abuse or neglect has the right to seek review and amendment of the finding.”
Not so for Karmen Hassinger and Grace Jones though. Because the “founded findings” against them were entered pre-1998, they simply had no right to an administrative appeal.
As she sought to clear her name, Jones endured her own expensive ordeal at the hands of the state. In addition to the attorney fees for her private lawyer, she was also barred from working in day care without a waiver, something that effectively made her unemployable for three years worth of the summer work she was seeking.
When Jones got the news in April 2006 that she was barred from working in licensed child care facilities in Washington, she swiftly sought an administrative hearing. That hearing took place two months later and, on August 17, 2006, Administrative Law Judge Richard Roberts ruled in her favor. Roberts found the anomaly in the law–that while the 1998 change in the law gave hearing rights to persons in Jones’s situation, those rights did not exist prior to 1998.
“However,” he wrote, “this does not resolve the matter.”
Whether Jones actually posed “a risk to a child’s safety and well-being remains in issue of material fact.” In other words, Judge Roberts ruled that a hearing was necessary before Jones could be barred.
Rather than go to a hearing on the evidence, though, the Department of Early Learning appealed Judge Roberts’s decision directly to the agency’s Board of Appeals, and in November 2006, the Board of Appeals reversed Roberts’s ruling finding, among other things, that because the pre-1998 state rules applied at the time of the initial “finding,” in 1993, Jones was simply out of luck. She was not entitled to a hearing on the facts.
Jones didn’t give up. With the help of Lisa Dickenson, her private attorney, she filed suit against DSHS and the Department of Early Learning in state court.
On September 12, 2007, Spokane County Superior Court Judge Neal Rielly, in a short and eloquent ruling, found that the agency had not only failed to meet the burden of evidence needed to bar her from employment, but “she hasn’t even been given an opportunity to contest the finding of child abuse.”
“[Jones] was and is entitled to due process. She was not given any notice or opportunity to be heard. Her due process rights have been violated.”
Judge Rielly had concluded that the State of Washington had violated Grace Jones’s rights under the U.S. Constitution. He remanded her case back to the DEL administrative hearings process “for a full fact-finding” on the 1993 finding of child abuse.
Because of the mounting expenses of her legal challenge, the case was transferred to the Center for Justice after Judge Rielly’s ruling. By that time, of course, the CFJ team was more than familiar with the problem, having seen the tragedy that was visited upon Karmen Hassinger.
Remarkably, after fighting for two years to deny Grace Jones an opportunity to clear her name, the Department of Early Learning simply abandoned the case after Judge Rielly’s ruling. When Center for Justice lawyers filed a new motion for summary judgment earlier this year to clear Jones, the Department of Early Learning simply didn’t respond. The fight was over. With the help of attorney Lisa Dickenson and the CFJ legal team, Grace Jones had gotten her good name back. But not before she had endured considerable legal expenses and three summers of lost work.
“I don’t know what I would have done without the Center for Justice,” Jones says. “But I wouldn’t wish this kind of experience on anybody.”
“These are powerful traumatic examples of why we [Center for Justice] do government accountability,” says Terri Sloyer about the Hassinger and Jones cases. “This is horrible overreaching by the government that impacts the lives of lower and middle class Americans. The government comes in and makes a ruling that deeply affects your life and you didn’t even know that the decision existed. It is sort of Kafkaesque.”
What’s especially frustrating about the Department of Early Learnings conduct in the two cases, says Sloyer, is that several years ago the exact same problem arose and was recognized by a lawyer working within the bureaucracy of the state’s Adult Protective Services (APS). Workers were complaining that they were not given a fair opportunity to contest agency findings of neglect or abuse that would cause them to become barred for work in APS-licensed care facilities for adults.
According to Sloyer the APS lawyer saw the due process flaw and worked with top decision-makers in APS to change the agency rules so that a person in the positions that Karmen Hassinger and Grace Jones found themselves in would be notified and entitled to a review hearing before the agency could bar them from future work. Despite appeals in writing from CFJ lawyers, the Department of Early Learning has yet to address the issue the same way APS has addressed it. Thus, there still could be any number of people with similarly flawed pre-1998 DEL “findings” against them, says Sloyer, who don’t know about it and won’t find out about it until they apply for work at a DEL-licensed day care.
What’s complicated things even further, Sloyer points out, is that just within the past year the registries of DEL and APS have been merged. What that means is that people who (prior to 1998) had “findings” registered against them in what are now DEL files, won’t just be barred from working in DEL-licensed facilities. They’ll also be barred from working in APS-licensed care centers.
“What is particularly troubling,” says CFJ’s Bonne Beavers, “is that in many if not most of these cases, the accused has no lawyer. There is no right to a lawyer at government expense in administrative cases for persons who cannot afford one and neither Ms. Jones nor Ms. Hassinger could have afforded counsel to bring suit and appeal on their behalf.”
“How many other people are out there who have tried to work in day care or, now, in APS care, who have one of these findings against them that they never got to challenge?” asks Terri Sloyer. “If they don’t know somebody who knows of a lawyer that they can afford, or know about us [CFJ], then they’re out of luck, and this is on their record for the rest of their lives.”