Your Client Has Been Indicated For Child Abuse - Now What
By Judy L. Hogan
If you are like many private practitioners, you have not practiced in the area of administrative law, you never took administrative law in law school, and in fact, even if you did, you do not remember what was taught, let alone pretend you understood it.
So, how do you "defend" a client who has been "indicated" by the Department of Child and Family Services ("DCFS") for child abuse or neglect? First and foremost, distinguish between DCFS "indicating" your client for abuse or neglect and the state’s attorney’s office filing a petition in juvenile court or pursuing criminal charges against your client. These are three separate processes with three separate outcomes, all requiring different burdens of proof and all applying different laws.
Often, DCFS may "indicate" a case for abuse or neglect and neither the juvenile nor the criminal courts will get involved. There are times even the police are not involved in the report or the ensuing opened case. This is due to the fact that DCFS is allowed to act on the basis of what is known as "credible evidence," which is defined as "the available facts, when viewed in light of surrounding circumstances, [that] would cause a reasonable person to believe that a child was abused or neglected."1 This is a low burden of proof.
This article will address the internal DCFS process in which you "defend" your client against an "indicated finding" by DCFS of child abuse or neglect. The controlling rule for an appeal of an indicated finding of abuse or neglect is DCFS Rule 336.2 The same process applies for indicated findings of neglect as for abuse.
DCFS indicates a report of child abuse or neglect by determining that a child has been abused or neglected under the definitions contained in Rule 336.3 It also determines the "perpetrator" who "caused" the abuse, if he or she is known to the Department. A perpetrator of abuse is defined as "a person who, as a result of investigation, has been determined by the Department to have caused abuse or neglect."4 The named perpetrator must be one who meets the definition of a "person responsible for the child’s welfare".5 If the perpetrator is not known, the case still may be indicated as identifying an abused or neglected child with an "unknown perpetrator".6
The result of an indicated finding is that the child is listed as an abused or neglected child under his or her name on DCFS’ internal computer, known as the State Central Register ("SCR"), and the perpetrator is listed under his or her name as one who has caused abuse or neglect.
The types of abuse and neglect are determined through the allegations list contained in DCFS Rule 300, Appendix B.7 The allegation system is similar to the list of crimes in a criminal code. Each allegation represents a separate incident of abuse or neglect and lays out the criteria that must be present to constitute the specific harm for each allegation before DCFS can indicate a case for abuse or neglect under that named allegation. All allegations are weighted in accordance with the seriousness of the act, and each carries its own time frame for which the indicted finding will remain listed with DCFS.
Rule 300 gives DCFS 60 days from the date the report of abuse or neglect was made to investigate the case and make a written "final determination" of the case, either "indicating" the case for abuse or neglect or "unfounding" the case because credible evidence does not exist to show abuse occurred.8 DCFS has authority to extend this 60-day time frame for another 30 days if it determines that more time is needed to complete the investigation.9 This typically is decided by the local office through supervisory approval.
The perpetrator of the abuse must receive a written notice from DCFS, notifying the named perpetrator of DCFS’ decision to indicate the case for child abuse or neglect and its determination that the person named is the "perpetrator" of the incident.10 Along with this information, DCFS is required to also inform the named perpetrator the allegation under which the abuse was determined, the length of time the indicated case will be retained by DCFS, notice of the ability to appeal the indicated finding, the time frame in which the appeal must be asserted, and where to send the request for an appeal.11 Section 336.40 of DCFS Rule 336 delineates further requirements for the appeal notice, such as the appeal notice must be sent to the perpetrator within 10 days from the date the final determination was entered into the SCR and must be in the perpetrator’s primary language.12 These two notices are typically combined into one document.
Section 336.40 also requires the person appealing an indicated finding to request the appeal in writing within 60 calendar days from the date the notification of decision was sent.13 DCFS strictly adheres to this time frame when determining whether the appeal was timely. DCFS staff is also required to assist an individual in requesting the appeal, which can include writing the request for the person.14
Sections 336.50 and 336.60 of Rule 336 set forth who may assert an appeal and what issues are appealable within DCFS’ internal appeal system.15 Under Section 336.50, "any person who has been named as a subject in an indicated or unfounded report of child abuse or neglect" may appeal. A "subject" of a report is defined as "any child reported to the SCR, his or her parent, personal guardian, or other person responsible for the child’s welfare, who is named in the report."16 This definition includes the determined perpetrator or a foster parent or other individual caring for the child’s welfare. What may be appealed is the indicated finding of abuse or neglect. 17
Once an appeal has been filed, the person filing the appeal has a number of rights as the "appellant" under, Section 336.70 of Rule 336, including the right to have legal counsel or another "Authorized Representative" representing him or her during the appeal process, after that authorized representative files a "written authorization for representation". No particular form is required.18
Under Section 336.40, the appellant has the right to a copy of the full investigative file.19 Confidentiality of those served by DCFS must be preserved; thus, the copy sent to the appellant is a version that has all confidential information deleted from it, which includes "personal information" about those individuals. DCFS takes liberal measures toward preserving confidentiality.
The appellant has the right to have an administrative hearing within 70 days from the date of his or her request for an appeal, and a pre-hearing conference must be held at least 15 days prior to the hearing.20 The hearing must take place at a location "reasonably convenient for all parties."21 This reasonably convenient location is typically considered to be the local field office handling the case.
Within 10 days after filing an appeal, the appellant must be given written notice of the dates of the pre-hearing conference and the administrative hearing dates, reference to particular statutes and rules involved with the appeal, the names and addresses of all parties, unless the information is considered confidential under controlling law, the name and address of the Administrative Law Judge assigned to the case, a statement of rights, and what constitutes abandonment of the appellant’s appeal and the consequences of the abandonment or failure to appear at the hearing.22 Generally, the appellant’s failure to appear at the conference or hearing is considered abandonment of the appeal. At appellant’s request, an interpreter will be provided at no cost to the appellant. 23 The only showing required by an appellant is that English is not his or her primary language, which is based on the appellant’s assertion.
The administrative hearing is a formal process, similar to a trial in court, and should be approached that way when preparing your case and advising your client. Applicable rules regarding discovery and the hearing process are strictly construed, with few exceptions allowed. Section 336.140 delineates discovery requirements. The parties have the right to request information from the other parties by way of discovery, which may include requesting witnesses and other documents that a party intends to use at the hearing. This request must be made in writing at least 10 days prior to the pre-hearing conference, but must be subsequent to the setting of the first hearing date.
Section 336.100 lists the parties’ rights at the hearing. These rights include the right to present and question witnesses, present all relevant information on the issues, question or disprove any information, and dispose of any issues through mutual agreement by the parties prior to the close of the hearing.24 A record of the hearing is made through audio taping, and parties may have testimony recorded by certified court reporters at their own expense. If the transcript is being prepared for the purpose of appeal to the circuit court, DCFS bears the burden of the cost.
Typically, DCFS is not represented by legal counsel at the hearing. An exception to this is often seen when the appellant has legal representation. Continuances are granted only "for good cause shown" and objections to continuances are allowed.25 According to the language of Section 336.150, "good cause shown" includes "sickness or death" in the appellant’s immediate family (note that this good cause privilege is not granted to DCF, other court or hearing dates were scheduled prior to the setting of the appeal hearing, or a witness is unavailable to testify.
The pre-hearing conference held prior to an appeal hearing is similar to a pre-trial conference held by a court. Along with the standard issues being addressed such as exchange documents and witnesses, agreements or stipulations by the parties, and discussions of motions filed,26 the Administrative Law Judge "shall" also decide whether a child under the age of 14 should testify or be involved in the hearing, if a party has made such a request.). The party making this request must show: (1) the child’s testimony is "essential" to the issue on appeal; (2) there is no likelihood of inflicting emotional harm to the child; and (3) no alternatives to having the child’s testimony exist, such as a transcript from a previous court hearing.27
Before or during the hearing, the appellant has the ability to withdraw the request for an appeal and DCFS has the ability to expunge the indicated finding against appellant or on the case.28 DCFS may expunge the indicated finding or amend the finding to delete the appellant as the perpetrator, thus relieving the appellant from any findings of having abused or neglected a child, yet keeping the case on record establishing that the child has been abused or neglected.
DCFS carries the burden of proof to justify its refusal to amend, expunge, or remove a finding of abuse or neglect,29 just as it carries the burden of proof throughout the appeal hearing, needing to prove by a preponderance of the evidence that abuse or neglect did occur.30
A Final Administrative Decision must be issued by DCFS within 90 days from the date of the request for the appeal, unless the time has been extended by some action or agreement by the appellant, such as appellant’s request for a continuance. The Administrative Law Judge makes only a recommendation to the Director of DCFS as to the outcome of the appealed issues, and the Director issues the Final Administrative Decision, accepting, rejecting, or amending the Administrative Law Judge’s recommendation. Along with receiving the Director’s Final Administrative Decision, the appellant must also receive notice of his or her ability to request Judicial Review by the court.
A number of attorneys have not taken seriously their client’s right to appeal through DCFS’ internal system, or have attempted to work around this internal appeal system through the court system. Your client can only "expunge" an indicated report identifying him as a perpetrator of abuse or neglect through DCFS’ internal appeal process. Thus, serious consideration must be given to advising your client to proceed through this process. Often, unless police or court is involved, indicated perpetrators of abuse or neglect and their legal advisors do not recognize the impact this finding could have years on down the road. Most positions or professions that have regular contact or the possibility of regular contact with children are required under law to do background checks to screen out individuals with a history of DCFS intervention. Every year the list of institutions and professions that are required to do these types of checks grows. An indicated report of abuse or neglect stays on DCFS’ computer anywhere from a few years to 20 or more years. That is a long time for any person to predict what may or may not come back to haunt them at a much later date.