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Officials: Trim puts federal funds at risk

BY MICHAEL KARLIK michael.karlik@coloradopolitics.com

Despite the warnings from officials that striking down a portion of Colorado’s child welfare law would imperil federal funding and trigger a domino effect across nearly all states, the federal appeals court based in Denver has deemed unconstitutional Colorado’s prohibition on disclosing certain information about child abuse investigations.

Despite the warnings from officials that striking down a portion of Colorado’s child welfare law would imperil federal funding and trigger a domino effect across nearly all states, the federal appeals court based in Denver has deemed unconstitutional Colorado’s prohibition on disclosing certain information about child abuse investigations.

A three-judge panel of the 10th U.S. Circuit Court of Appeals last week waved aside the state’s concerns that permitting the release of information surrounding alleged child abuse would put Colorado at odds with federal law and jeopardize millions of dollars in grant money.

“It is no excuse for a state that is violating the constitutional rights of its citizens to say ‘the federal government is paying us to do it,’” wrote Senior Judge David Ebel in an

Tuesday opinion.

The 10th Circuit upheld a trial judge’s determination that a portion of the state’s Children’s Code violates the First Amendment to the extent it prohibits the general disclosure of non-identifying information in welfare proceedings. The federal Child Abuse Prevention and Treatment Act requires states to certify they have enacted procedures to protect the confidentiality “of all records” to receive grant funding, and Colorado’s law as written mirrors that directive.

Colorado informed the appellate court that 48 other states have similarly worded laws, calling into question their constitutionality should there be legal challenges elsewhere in the country. The 10th Circuit’s decision is only binding on Colorado and five surrounding states within the circuit’s jurisdiction.

“We are evaluating the decision and its impact on New Mexico and its families,” said a spokesperson for New Mexico Attorney General Hector Balderas on Wednesday.

David Lane, an attorney who represented plaintiff Jessica Peck in the appeal, called the decision a “vindication” of his client’s right to draw attention to misconduct by child welfare workers.

“It’s not our problem if the feds withhold funding, so you’ll have to ask the defendants about that,” he said. A spokesperson for the Colorado Attorney General’s Office, which argued in favor of the law’s constitutionality, declined to comment.

The parties to the lawsuit all agreed Colorado has a compelling interest in encouraging reports of suspected child abuse, and keeping details confidential is a key part of that objective. However, the dispute focused on whether the broad prohibition on disclosing any information — regardless of whether it could be used to identify the participants in an abuse investigation — violated the right to free speech.

Peck, who is an attorney, represented a woman involved in dependency and neglect — or child welfare — proceedings in Denver. She spoke to a reporter from Westword and provided an email excerpt from the case, suggesting Denver had gotten involved because Peck’s client had supported an ex-husband’s innocence amid murder charges.

After the article’s publication in January 2019, the Denver Juvenile Court magistrate handling the case issued an order raising concerns Peck had “disclosed confidential identifying information to a non-party.” The order cited Colorado’s Children’s Code, which separately prohibits the disclosure of any identifying information from child abuse reports as well as “data or information contained in the records and reports of child abuse.”

There were no legal consequences for Peck’s disclosure to Westword, nor were there records of Denver prosecutors recently charging anyone for violating the disclosure provision. Nevertheless, Peck filed a lawsuit against Denver District Attorney Beth Mccann and Michelle Barnes, executive director of the Colorado Department of Human Services. Peck sought to permanently block the government from enforcing the misdemeanor penalty for disclosure.

Peck said her motivation was to hold child welfare workers accountable by going public with allegations of misconduct.

“Ultimately, good caseworkers will become even better caseworkers and bad caseworkers will face the wrath of a free press and open society,” she said.

In March 2021, U.S. District Court Senior Judge R. Brooke Jackson concluded the challenged portions of the Children’s

Code were unconstitutional. He went beyond the request to block the criminal penalties and enjoined the enforcement of the provisions entirely.

“Currently the statute criminalizes disclosure of any information contained within reports or records of child abuse or neglect, regardless of whether the information identifies individuals. There is a plausible, less-restrictive alternative available — narrowing the restricted speech to ‘identifying information,’” Jackson wrote. “While there is no question that protecting the confidentiality of children, families, and informants in the child welfare context is a compelling interest, the state has failed to prove that this alternative would be ineffective in achieving that goal.”

Jackson elaborated that certain “common” behavior would not necessarily identify individual participants in a welfare case, such as caseworkers’ observations in a home or the steps an investigator took. He believed such information was not relevant to Colorado’s broader interest of protecting children and encouraging child abuse reports and, therefore, the state could not penalize disclosure.

The government appealed to the 10th Circuit, arguing Jackson’s invalidation of the confidentiality provision would jeopardize direct and indirect funding Colorado received through the federal child abuse law, which has amounted to $1.8 million in recent years.

The defendants received support from additional entities arguing children and families would experience “shame” if it were publicly known they were involved in child abuse investigations. Larimer County argued to the 10th Circuit that only parents should be allowed to disclose case information, believing residents could still “connect the dots” on certain cases to identify the participants.

Denver Human Services claimed Peck’s desire to share allegations of caseworker misconduct only served to “whet the voyeuristic appetites of the general public” and “revictimize” the children involved.

During oral arguments before the 10th Circuit in January, members of the panel questioned both sides about the consequences of invalidating the disclosure provision.

“If we go along with what you’re asking for,” Judge Gregory Phillips asked Peck’s attorney, “are we not just giving Ms. Peck or anyone else a blank check to be releasing all sorts of information that impedes the work the child abuse investigations are meant to do?”

On the other hand, the judges pointed out that Tennessee, the only state that focuses its law on the disclosure of identifying information, has seemingly not lost access to federal funding.

“Doesn’t that show that Colorado’s statute can be more narrowly tailored?” wondered Judge Scott Matheson Jr.

Mccann, the district attorney, attempted to argue Peck did not even have standing to sue, because she had never been prosecuted for violating the law, nor was there a credible threat of consequences in the future.

“Is it the DA’S position that it won’t prosecute any sort of releases of information beyond names and addresses?” Phillips asked.

“It is not the DA’S position that it will not prosecute,” conceded Kendra K. Smith, the attorney representing Mccann.

Ebel, in the panel’s opinion, used the concession as proof Peck still faced a real possibility of prosecution in the future were she to disclose case information. Therefore, she could challenge the law’s constitutionality.

“Indeed, we explicitly held that First Amendment plaintiffs generally need not state that they ‘have specific plans to engage in X-Y-Z speech next Tuesday’ in order to show standing,” he wrote.

The panel narrowed Jackson’s ruling, finding the Children’s Code unconstitutional only to the extent it outlaws the disclosure of nonidentifying information. Ebel noted the law establishes “child protection teams” that are allowed to publicly report nonidentifying information about investigations, meaning it was possible to lift the prohibition for Peck, as well.

The 10th Circuit returned the case to Jackson to determine whether it is feasible to block enforcement solely of the prohibition on disclosure, or whether broader portions of the law must be struck down.

Peck believed the court’s decision presents an opportunity to generally modernize the Children’s Code at the same time the law’s implications for free speech are also under scrutiny.

“As an attorney, a judge saying, ‘Keep your mouth shut. Here are the penalties in the statute if you don’t,’ I take that very seriously. So it’s the chilling effect on our speech,” she said.

Jeffrey Roberts, executive director of the Colorado Freedom of Information Coalition, said the ruling should enable the public and the media to better explore allegations of wrongdoing by child abuse investigators.

The federal Administration for Children & Families, which oversees the grants for state child welfare agencies, did not immediately respond to questions about how the 10th Circuit’s decision would affect Colorado’s future eligibility.

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