Whose rights should be respected?

JOHN DAVIDSON/Frontiersman reporter

When accusations of a criminal nature are made against a citizen of the United States, our criminal justice system has strict procedures for dealing with the accused and ensuring that all parties involved have an opportunity to make their case, whether as plaintiffs or defendants.

In cases that involve state child protection services, however, the procedures used by the criminal justice system do not always apply.

Mark Ruby's daughter claimed he sexually assaulted her in 1995, but Ruby was never arrested and never charged with a crime. His daughter still claims, 10 years later, that he sexually assaulted her.

Although police interviewed Ruby and his daughter, they filed no criminal charges. However, the state Office of Children Services (then known as the Division of Family and Youth Services) named Ruby as the perpetrator of sexual abuse - what OCS calls a "finding of substantiation" - and his name went down on their books as the perpetrator of abuse.

But Ruby's daughter, who requested her name be withheld, claims OCS never interviewed her or even met with her following the alleged incident.

The result is that 10 years later, one party claims to be a victim who has not seen justice brought to her attacker, the accused claims to be wrongfully accused and denied a fair hearing, and in the absence of a judgment from a criminal court, OCS has made its own judgment concerning Mark Ruby.

At the heart of the issue is an agency that holds a very different standard of evidence than the standard to which law enforcement must adhere, and whose actions have profound and far-reaching effects in the lives of those it is supposed to protect.

Two different standards

OCS is the first to admit its standards of evidence are not as stringent as those of law enforcement.

"'Substantiated abuse,' can refer to many things. For us, it's inappropriate behavior toward a child as opposed to criminal behavior. It could be criminal and probably is, but we don't have to prove that in court."

So says Myra Casey, field administrator for the state Office of Children's Services in Juneau. Casey explained in a recent phone interview how the role of OCS differs from the role of law enforcement, and how their standards differ as well.

"Our roles are different. If [law enforcement] can't charge somebody, we can still take action to protect the child," Casey said. "Our goal is to protect the children. [Law enforcement] may not be able to do anything, but we would still intervene if we felt a child was being abused."

But it's not just the roles that are different; standards of evidence for OCS are not as rigorous as the standards for law enforcement, Casey said. OCS can take custody of a child on probable cause, based on what a caseworker uncovers during an investigation, which may or may not include any physical evidence.

OCS spokesman Mike Lesmann said it is not uncommon for an OCS investigator to "substantiate an allegation of sexual abuse based on the child's disclosure.

"Whereas law enforcement has a higher standard to meet to be able to charge the perpetrator - such as physical evidence to suggest it happened - we sometimes substantiate without physical evidence," he said.

When Ruby asked OCS to reverse its finding against him in 2001, he received a letter from Ada Gleason, then-supervisor of investigations for OCS.

In the letter, Gleason defended the finding and briefly explained the agency's different standard of evidence:

"After careful review of the file, our agency has determined that we will not be changing the finding of substantiated sexual abuse. Although you passed a polygraph and there were no criminal charges, the standards of evidence for criminal prosecution and for child protection are very different."

Gleason went on to cite the OCS policy and procedure manual, which states: "A substantiated finding is one where the available facts indicate a child has suffered harm as a result of abuse or neglect."

Lesmann said OCS can and often does substantiate abuse based solely on a child's disclosure.

"While physical evidence is commonly discovered during a forensics exam at a child advocacy center, allegations of sexual abuse are sometimes substantiated based solely on a child's disclosure," Lesmann said.

Sgt. Dallas Massie of the Alaska Bureau of Investigation has worked closely with OCS on many occasions and says his role in abuse cases is one of a fact-finder.

"We evaluate the strength of the evidence; usually the only information we have to start with is the disclosure of a child," Massie said.

For child-abuse investigations, Massie says there is a regular protocol for a coordinated investigation by a multidisciplinary team, which consists of juvenile justice officers, Alaska State Troopers, the district attorney's office, OCS and sometimes the school district.

"We have a partnership with OCS in these cases," Massie said. "The circumstances require us to work together."

When OCS does substantiate abuse against a parent, Lesmann says the agency is required by federal law to notify the perpetrator that OCS has substantiated the allegation and that they have the right to appeal.

But Ruby claims he was never notified, and found out about his OCS record years later, during his wife's custody battle with her ex-husband.

The right to a fair hearing

Kenneth Kirk is an Anchorage-based attorney who represents Mark Ruby, but since the Kelley abuse case broke in September 2004, he has had plenty of prior experience dealing with OCS through representing the biological relatives of the Kelley children.

In November 2004, the day after Gov. Frank Murkowski announced a legislative package aimed at reforming OCS policies and opening some case records, Kirk released a statement that called the agency's motives into question.

Kirk stated: "At the same time OCS is publicly proposing changes to make things more open, in court cases they are still fighting against allowing even close relatives to have access to information. The current laws allow judges to permit relatives to have access to such files, but OCS is actively fighting against those efforts."

Kirk said the problem with OCS policy and procedure in Ruby's case is that it has made a judgment against him without giving him a fair hearing, notification of its judgment against him or access to information about his case.

"The main problem is that they're not giving him the opportunity to contest the judgment that he's a sex offender," Kirk said. "They at least have to give a person the opportunity to make a defense."

Calling Ruby's legal position "very strong," Kirk said he fully expects to file a section 1983 civil rights suit against the state of Alaska and the Office of Children's Services sometime in the next two months. If Ruby prevails in the suit, the state will have to change its policy, Kirk said.

"We're in the process of document-gathering and getting records; I expect both sides to file summary judgment motions early on," Kirk said. "It's an

interesting and difficult matter and I hope we can get some changes."