XV. E. Review of Substantiation Decisions of Child Abuse and Neglect

Effective 10/1/00

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XV. E. Review of Substantiation Decisions of Child Abuse and Neglect

Effective 10/1/00

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The Federal Child Abuse and Neglect Prevention and Treatment Act (CAPTA) requires that a person who officially has been found by the State to have committed child abuse or neglect has the right to appeal that finding by requesting an agency review.  (See Section 106(b)(2)(A)(xi)(II) of CAPTA;  ACYF-NCCAN-PIQ-97-01 dated April 30, 1997;  and ACYF-NCCAN-PIQ-97-03 dated September 26, 1997.   CAPTA also requires that notice of the right to request an agency review and the method by which that request may be instituted be given to the identified party at the time they are informed of the official finding of abuse or neglect.   The purpose of this requirement is to afford due process.   State agencies are given flexibility in designing this process;  provided, however, that the agency representative conducting the review must have the authority to overturn a previous finding of child abuse or neglect, and cannot have been involved in any other stage of the case.   This policy sets forth the process by which the Maine Department of Human Services’ Bureau of Child and Family Services shall carry out these CAPTA provisions.

 

APPLICABILITY

This procedure applies to all official findings of child abuse or neglect which are substantiated on or after February 1, 2000, which is the effective date of this policy.   No person may request a review of a substantiation of abuse or neglect which was substantiated prior to the effective date.  No review pursuant to this policy shall be available to any person named as a party in a child protection case over which a Court of competent jurisdiction has assumed jurisdiction pursuant to 22 M.R.S.A. 4001 et.seq.    No review pursuant to this policy shall be available when a criminal proceeding has resulted in the conviction of the person substantiated as a perpetrator of child abuse or neglect on charges related to the child abuse or neglect which is the subject of the substantiation.  

 

DEFINITIONS

Abuse and Neglect: For purposes of this policy "[child] abuse and neglect" means:  a threat to a child’s health or welfare by physical, mental, or emotional injury or impairment, sexual abuse or exploitation, deprivation of essential needs or lack of protection from these by a person responsible for the child.  22 M.R.S.A. Sec. 4002(1).

 

Bureau Director:  means the Director, Bureau of Child and Family Services.  The Bureau Director shall make all final decisions pursuant to this policy.  

 

Department:  means the Maine Department of Human Services, Bureau of Child and  Family Services.

 

Person(s) Who May Request a Review: means a person who officially has been found by the State to have abused or neglected a child, and so has the right to have that finding reviewed.

 

Reviewer:  means a person authorized to conduct a review under this policy.   In every case in which a review has been requested, the Bureau Director shall appoint a Reviewer, who shall review all of the documents submitted by the agency and by the person requesting the review.   Persons eligible to be appointed by the Bureau Director to conduct the review may include:  (a) the Director, Division of Child Welfare Policy and Practice or a designee of the Division Director who has been approved by the Bureau Director to serve in this capacity  (b) the Director Division of District Operations;  or (c) a Program Administrator in any of the Bureau’s eight District offices.  If a District Program Administrator is appointed to review a case pursuant to this policy, the official finding of abuse or neglect must have been made in a District office other than one for which s/he is responsible.  

 

Substantiation:  means an official finding of abuse or neglect which has been  made by the Department of Human Services.  A case is substantiated when, by a preponderance of the evidence in the record taken as a whole, it is established that abuse or neglect has occurred or is threatened to occur.   Information in the record may include but not be limited to, Safety and Risk Assessment tools utilized by the Department; medical, mental health or other treatment records or histories; interviews with family members; observations; analysis; criminal history records; court records; motor vehicle records; prior history with the Department.  

 

Time of Substantiation:  means the point at which, after assessment, the Department has made an official determination that abuse or neglect has occurred and has notified the affected individual(s), in writing, that this finding has been made.

 

REVIEW PROCESS

1. Written Notice:        Parents, custodians, other legal guardians, or any persons found by the Department to have abused or neglected a child shall be notified of this finding in writing. Notice must be given in the person’s own language if there is reasons believe that the client does not read and/or understand English at a basic level. For persons who are hearing impaired and are unable to read, or who read at a very basic level, an interpreter for the deaf must be engaged to provide the client with notice of the finding of abuse or neglect, and to assist the client in the review process described in this policy if the client elects to request a review.

Once the Department has made an official finding of abuse or neglect, the responsible caseworker shall send a letter to the affected individual within ten (10) calendar days, informing him or her of the finding(s).  These findings must be specific in that they identify the type of abuse, the name of the victim, the specific incidents, behaviors, or patterns of behaviors and the specific harm or threats of harm to the child(ren).  Any exception to providing specific findings must be reviewed and approved by the unit supervisor and documented in the case record.  Findings should be discussed with the client in person (See Appendix A for Sample Letters).  The letter must also contain the following notice:

 

Notice of the Right to Request a Review

 

If you do not agree with the Department’s decision regarding the abuse and neglect or the specific findings you have the right to request that the Department review it’s decision.  You must request this review in writing with TEN days of receiving this notice.  Your request for review must clearly outline the specific findings with which you disagree.  You may provide any additional information that you believe supports your specific points of disagreement.  The request for the review must be mailed to:

 

Office of the Director

Bureau of Child and Family Services

11 State House Station

Augusta, Maine 04333-0011

 

The letter will appear in MACWIS in the findings window by pressing the Notice icon.  This letter shall be sent to the affected individual by certified mail, addressee only, return receipt requested.

 

If the department has reasonable cause to believe that the person about whom the substantiation has been made does not speak or read English as his/her primary language, then the caseworker may provide initial notice under this section verbally, by using the ATT language translation service or a local translator.  The caseworker will follow up this oral notice with a written, translated notice as soon as possible thereafter.  These exceptions must be documented in the case record and made only with supervisory approval.

 

CONDUCTING THE REVIEW

Once a request for a review is received by the Office of the Bureau Director, the Director will appoint an Agency Reviewer to review the case record. The Reviewer shall have the authority to overturn the previous official finding of child abuse or neglect.  The Reviewer will have had no involvement with the case prior to the review process.  The Reviewer shall review the case and make a determination either (a)  sustaining the official finding of abuse or neglect, or (b) overturning the official finding.  This determination shall be made in writing (as set forth below), and mailed to the appellant by first class mail,  at his or her last known address, within 45 days of the receipt of the request for review.

 

1.Standard of Review

In making a determination to (a) sustain or (b) overturn an official finding of abuse or neglect, the Reviewer will review and consider all information in the case record as well as information provided by appellant. The Reviewer will then determine whether the information in the record, taken as a whole,  establishes by preponderance that child abuse or neglect has occurred or is threatened to occur.   In making that determination the  Reviewer may consider such factors as whether:

 sufficient information was gathered from relevant collateral sources, including but not limited to past DHS records, medical and mental health records, law enforcement records, school records and Community nursing records to support the findings.
 the process and content of information-gathering from the family was accomplished within policy and practice guidelines.
 the record reflects an analysis of all relevant information.
 critical persons were interviewed during the assessment;
 the request for the review from the appellant is specific to the findings with which there is disagreement and the basis for that disagreement;
 sufficient documentation exists in the record to support the substantiation decision.

 

2. Statement of Findings

When the Reviewer has completed the review of the agency record, he or she will prepare a written statement of findings, including a statement as to whether the reviewer believes that the record contains sufficient information to support the substantiation.   If the Reviewer believes the record does not contain information sufficient to support the substantiation he/she shall also so state.

 

A summary of the findings shall be mailed to the appellant first class mail at his or her last known address within 45 days of the request for review.  When the appeal is initiated by an attorney, the letter and a copy will be mailed to the attorney.

 

EFFECT OF REVIEW

The Final Decision by the Bureau Director or designee shall conclude the available review of the original official finding of abuse or neglect.  

 

In those cases in which an official finding of abuse or neglect is overturned, that finding shall become part of all information systems maintained by the Department, including the Maine Automated Child Welfare Information System (MACWIS).  In such cases, any allegation which was originally entered in MACWIS as "substantiated" shall be changed to "unsubstantiated."

 

The Department of Human Services is obligated by law to investigate allegations of child abuse or neglect on a referral-by-referral and case-by-case basis.  Consequently, no decision overturning an official finding of abuse or neglect under this policy shall act as a bar to the Department’s assessment of subsequent allegations of child abuse or neglect, even if the subsequent allegations involve the same alleged perpetrators and the same children, or other children.

 

 

SAMPLE LETTER NON-PARENT AND/OR OUT-OF-HOME ABUSER

 

DATE

Mr. John Smith

275 Shady Lane

New Smyrna, Maine

 

Dear Mr. Smith:

 

As you are aware the Department of Human Services received a report of suspected child abuse and neglect that named you as the suspected abuser.  I have completed the assessment to determine whether the abuse or neglect did in fact occur.  As a result of the assessment the Department finds that you sexually abused a child residing in the home of Carolyn Jones.  The basis for this finding was interviews with you, Carolyn Jones and other members of her household, police reports, including reports on your criminal history.

 

Notice of the Right to Request a Review

 

If you do not agree with the Department’s decision regarding the abuse and neglect or the specific findings you have the right to request that the Department review it’s decision.  You must request this review in writing with TEN days of receiving this notice.  Your request for review must clearly outline the specific findings with which you disagree.  You may provide any additional information that you believe supports your specific points of disagreement.  The request for the review must be mailed to:

 

Office of the Director

Bureau of Child and Family Services

11 State House Station

Augusta, Maine 04333-0011

 

If a review is requested the Department will conduct that review and respond to you in writing within 45 days of the receipt of your request for review.  Please note that there will be no review conducted when the request is made by a person who is named as a party in a Petition filed requesting a Child Protective Order or named in a Child Protection Order issued by the District Court.

 

____________________________                __________________________

Child Protective Services                                Child Protective Services

Supervisor                                                Caseworker

 

 

SAMPLE LETTER - PARENT

DATE

Ms. Jane Brown

105 Carr Street

Hollis, Maine

 

Dear Ms. Brown:

 
As you are aware, the Department of Human Services received a report of suspected abuse or neglect of your child.  I have completed the assessment to determine whether or not the reported abuse or neglect did in fact occur.  As a result of the assessment the Department finds that you physically abused your son Billy by repeatedly slapping him in the face leaving bruises and raised welts.  You emotionally abused Billy by yelling at him daily for the last 2 months calling him "stupid", "dumb", and "nothing but trouble".  The findings of physical and emotional abuse are based on interviews with you, Billy, several members of your family and a review of medical records.

 

Notice of the Right to Request a Review

 

If you do not agree with the Department’s decision regarding the abuse and neglect or the specific findings you have the right to request that the Department review it’s decision.  You must request this review in writing with TEN days of receiving this notice.  Your request for review must clearly outline the specific findings with which you disagree.  You may provide any additional information that you believe supports your specific points of disagreement.  The request for the review must be mailed to:

 

Office of the Director

Bureau of Child and Family Services

11 State House Station

Augusta, Maine 04333-0011

 

If a review is requested the Department will conduct that review and respond to you in writing within 45 days of the receipt of your request for review.  Please note that there will be no review conducted when the request is made by a person who is named as a party in a Petition filed requesting a Child Protective Order or named in a Child Protection Order issued by the District Court.

____________________________                __________________________

Child Protective Services                                Child Protective Services

Supervisor                                                Caseworker

 

 

APPENDIX

PRACTICE GUIDELINES

Juveniles with Sexually Problematic Behaviors and Juvenile Offenders

 

The substantiation by DHS of an individual as having abused or neglected a child can have a lifetime impact on that individual.  For an individual identified as having sexually abused a child the consequences are even more negative.  This person can and will be denied certain types of employment and can and will be contacted by the Department every time he or she lives in a home with children and when the Department learns about that living arrangement.  Documenting a substantiation can serve to protect children from adults who have been found to have sexually victimized children.

 

Finding and substantiating in our records that children, especially young children, have sexually abused another child and thereby putting into place those same lifelong consequences poses a real dilemma for the Department.  This is so because there is no empirical evidence that children who have engaged in sexually problematic behaviors as children will offend as adults.  Of course some will do so and we know that many adult sexual offenders report beginning their offending behaviors as adolescents.  With very young children (up to age 8) who have offended, the connection to adult behavior cannot be made.

 

In light of the above, the following guidelines are provided to help determine under what circumstances children should be substantiated as having sexually abused another child.

 

1.No child age 8 or under will be substantiated as a sexual abuser.

 

2.For children between the ages of 9 and 12 the following will be considered prior to identifying the child as a sexual abuser, as the following factors have been found to be marginally associated with recidivism.
 prior (multiple) sexual offenses
 use of threat/force
 deviant arousal
 chaotic home environment
 sexual preoccupation

 

3.For children and youth age 13-17 the following must be considered prior to identifying the child as a sexual abuser, as the following factors have been found to be marginally associated with recidivision.
 prior (multiple) sex offenses
 use of threat or force
 deviant arousal
 sexual preoccupation
 blaming the victim
 cognitive distortions
 truancy
 psychopathy
 impulsivity
 initial offending was pleasurable with minimal consequences
 offenses reinforced through masturbation or fantasy
 chaotic home environment

 

The older the child or youth the more compulsive, pervasive and coercive their sexual behaviors and the more numerous their other social deficits the more likely they are to be a threat to children in the future.

 

The Department has an affirmative duty to protect children now and in the future from sexual abuse.  We also have a duty to be fair and make use of the knowledge in the field of juvenile sex offenders when making a determination that a child is responsible for sexually abusing another child.  We will not always be accurate in determining which child or youth will sexually offend as an adult.  Our predictive capacity is very limited.

 

We are committed to helping children and youth who have sexually offended to stop their abusive behaviors.  To label them "Juvenile Sex Offenders" rather than children and youth who have sexually offended or have engaged in problematic sexual behaviors may be inaccurate and have deleterious effects at a time when these children and youth are developing their identities.  As stated early there is no evidence to suggest that with children and youth once a sex offender, always a sex offender.

 

Notification of Right to Appeal

For juveniles who are listed as abusers a notification of the right to appeal letter should be sent to their responsible parent or caretaker.  Caseworkers need to add a paragraph that states the juvenile is listed as an abuser and the parent may appeal that finding on behalf of the juvenile.  Parents should also be advised to tell the youth that the youth has been found to have abused a child by the Department.