Due process, child protection collide

JOHN DAVIDSON/Frontiersman reporter

When the Kelley abuse case broke in early September last year, many were shocked to learn that Patrick and Sherry Kelley had adopted their five children from the state and were receiving $3,400 a month to care for them.

As details of the case emerged, it became known that the children had been placed in the Kelleys' foster care by the Office of Children's Services, which approved and encouraged the adoptions.

Since then, OCS has come under increased scrutiny from citizens and lawmakers who want the agency to be more accountable for its actions.

Last month, Gov. Frank Murkowski announced a child protection package as part of his fiscal 2006 budget. The package includes legislative proposals to open more OCS activities to the public and reform the screening process for licensing foster parents.

Critics of the agency are plentiful and their complaints are diverse; some think OCS unnecessarily intervenes in family matters and violates parental rights too often, others say OCS doesn't do enough to protect children and should be more active.

At the center of the controversy is a state agency that has the uncommon and difficult task of determining when children are in danger and ensuring their protection.

Because OCS is required to protect the identity of children at the center of abuse investigations, case workers and officials cannot discuss much of what they do. But while confidentiality rules protect minors' identities, they also shroud the activities of the agency in secrecy, making public accountability difficult, if not impossible.

Although there is an intersection between law enforcement and child protection, they are not the same and their standards of evidence are very different.

This difference becomes problematic in the context of constitutional rights, particularly the due-process clause of the Fifth Amendment.

OCS, acting independently of law enforcement agencies, can investigate a claim of child abuse, substantiate that claim and implicate a parent as the perpetrator without filing criminal charges. Even if law enforcement investigators don't think the claims of abuse are credible and refuse to arrest the alleged perpetrator or file criminal charges, an OCS investigator can make a so-called "finding of substantiation," and the parent in question will go down in OCS records as a perpetrator of child abuse.

A parent in this position can be haunted for years by such a finding, with no recourse through the legal system and no way to clear his or her name.

The stigma of being labeled a child abuser can do more than ruin a person's relations with friends and family; the findings of an OCS investigation can also prevent a person from getting jobs that require extensive background checks.

All of this and more has happened to Mark Ruby. In 1995, an OCS investigator named him as the perpetrator of sexual abuse against his daughter, an accusation he has vehemently denied for 10 years. Ruby has been trying to clear his name ever since, with little success.

Having exhausted all other options, in the coming months he will file a civil rights suit against the state of Alaska and its Office of Children's Services.

An unexpected reunion

During the winter of 1995, Mark Ruby says his life was "perfect." He was working for Job Corps in Palmer, was a trained emergency medical technician and firefighter and was looking forward to getting his basic life support certification. Everything seemed to be going well.

Then he got a phone call from his ex-wife, whom he hadn't heard from in 10 years. She said their 13-year-old daughter had run away from home in Anchorage, and asked Ruby if he would help look for her. Ruby had not seen his daughter since she was 3 years old.

After they found her, Ruby decided he wanted to get to know his daughter and build a friendship. They arranged a visit and she came out for a weekend to visit Ruby, his wife and their two children; she spent that Christmas in Houston with Ruby and the rest of his extended family.

After Christmas, Ruby didn't hear from his daughter for months, until he got a phone call at work one day that spring. Ruby said she called him from a hospital and began making accusations that he had raped her, but hung up the phone before he could say anything.

Hours later, an oficer from the Wasilla Police Department, Roger Vercelline, who has since left that organization, called Ruby and asked him to come down to the station and answer some questions about his daughter.

During questioning, Ruby volunteered to take a polygraph to reinforce his claim to innocence; he was given a full polygraph at the Anchorage Police Department in April 1995, and, after five hours of examination, Ruby passed the polygraph.

Later that same day, back at Wasilla Police Department, Vercelline told Ruby his daughter had refused to take a polygraph. Although Ruby said Vercelline told him he didn't believe the girl's accusations, there was one more thing Ruby could do.

"After the polygraph, [Vercelline] told me there was one way to ensure, in his mind, that I was innocent, and that was to get a blood test for hepatitis," Ruby said. "So I went straight to the hospital and got that test and brought the results back to Vercelline. The results showed no hepatitis and no hepatitis antibodies, and I thought that was the end of it."

As far as Ruby knew, that was the end of it; he was never arrested, never charged with a crime, and never called in for further questioning. Ruby went on with his life, thinking he had demonstrated his innocence to the concerned authorities. He was wrong.

Ripple effects

Unbeknownst to Ruby at the time, OCS named him as the perpetrator of sexual abuse against his estranged daughter in 1995, even though police found no reason to pursue criminal charges. Years later, Ruby would discover this "finding" against him when he applied for a job that required an in-depth background check.

In August 2001, Ruby was working with Community Service Patrol in Anchorage as a lead EMT. When he was offered a job with the Homeward Bound program at RurAL CAP Inc., he was advised that an extensive background check was part of the hiring process. Ruby had no reason to believe they would find anything damaging.

But the next month, while still in his probationary period of employment, a friend at work told Ruby the background check had uncovered records at OCS that named him as the perpetrator of sexual abuse and he would not be hired.

Although state law does not authorize OCS to respond to a typical employer's request for a child protection background check, those employers who are licensed to provide care or services to children can ask OCS about the child protection history of a prospective employee.

According to OCS spokesman Mike Lesmann, an OCS staff person can only disclose whether there has been a substantiated report of abuse and must have a signed consent from the prospective employee for release of more information.

Because of the OCS finding against Ruby, RurAL CAP Inc. did not hire him, a human resources employee at the corporation said.

But the effects of the OCS finding didn't stop there. In 2001, Ruby was dating the woman to whom he is now married, Rebecca Ruby; she was in the middle of a bitter custody battle with her ex-husband, Michael Treadwell.

In the course of custody proceedings, OCS investigator Rose Sandhofer sent a letter to Rebecca that stated: "Our data base records indicate that Rebecca's boyfriend, Mark Ruby, has substantiated sexual abuse in 1995, meaning that he was the perpetrator of sexual abuse. The Office of Children's Services recommends that the children not be allowed to visit their mother, Rebecca, while Mark Ruby is present."

A copy of this letter was also sent to Treadwell and his attorney. Rebecca said the OCS letter was used as ammunition in an already combative custody battle, and her ex-husband told her he posted the letter online and told everyone he could about Ruby and the OCS finding against him.

"There has been irreparable damage to my relationship with my children because of this," Rebecca said. "I was surprised at OCS's attitude toward me because I was with Mark, and [OCS's] careless regard for the information they throw around."

Last month, Ruby received a letter from OCS staff manager Christy Lawton about the letter sent to Rebecca and Treadwell during their custody case; it stated: "The letter served as a cautionary advisement to your now partner and her ex-husband about allowing their children to have unsupervised contact with you due to the past investigation. This disclosure … did not need to include such specific investigative information and we apologize for any difficulties this may have caused you."

The Rubys believe it was because of the OCS letter and OCS recommendations that Rebecca failed to win custody of her three children.

"During my custody battle, I became aware that any child, for any reason, can make an accusation and even if the police don't believe it, OCS can make a finding against you," Rebecca said. "I found out OCS is their own entity that operates outside the law, and they can deny your constitutional right to due process. That was very sobering."

In the wake of Rebecca's child-custody case, Ruby began to realize how far-reaching the effects of an OCS finding could be.

"This is why my wife lost her custody battle," he said. "And this is why I can't get a job in my field."

Look for the second installment of this story in Sunday's Frontiersman.