Assessing the Feasibility of Creating and Maintaining a National Registry of Child Maltreatment Perpetrators: Research Report. 2.2 STATE LAW, POLICIES, AND PRACTICES

09/01/2012

All child protective services (CPS) systems are governed by a statutory scheme that specifies how the protection of maltreated children is to be accomplished in the State. Each State also has an administrative agency charged with supervising or implementing the processes, procedures, and services for addressing child maltreatment. In some States, child welfare is State-administered and, in others, it is county-administered. Regardless, most child welfare work is carried out at the local level. There are common processes of child protective services that occur in all jurisdictions. All jurisdictions responsible for child protective services have procedures for accepting reports of child abuse and neglect, investigating those reports, determining whether child abuse or neglect has occurred, providing protective services if maltreatment is substantiated, and maintaining records of reports and case dispositions. Nevertheless within these common processes there is significant variation, which may imply serious issues for implementing a national registry.

Definitions of Child Abuse and Neglect

CAPTA serves as guidance to States in developing their own statutory definitions of child abuse and neglect. CAPTA defines child abuse and neglect as, at a minimum,

"Any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse or exploitation, or an act or failure to act which presents an imminent risk of serious harm."[27]

Most States recognize a multiplicity of types of abuse or neglect. In most cases, the majority can be cross-walked to four major types of maltreatment: neglect, physical abuse, sexual abuse, and psychological maltreatment. Additional major categories sometimes include: fatality; lack of supervision; and child in need of services.

Neglect is usually defined as the failure of a parent, or other person responsible for caring for the child, to provide food, clothing, shelter, medical care, or required supervision to protect the child from harm. Twenty-four of 52 States include failure to educate the child as required by law in their definition of neglect. Medical neglect is specifically defined by seven States. Lack of supervision, which is not mentioned separately under Federal law, is often identified at State and local levels. Seventeen States include abandonment in their definitions of abuse or neglect, usually as a type of neglect.[28]

Physical abuse is generally defined as any physical injury to the child that was not accidental. In 38 of 52 (73.1%) States, the definition also includes acts or circumstances that threaten or create a substantial risk of harm to the child. As might be assumed, the aspect of intentionality underlies designations of child abuse and neglect, but in varying degrees. Thus, physical discipline by parents is often considered in terms of how extreme the discipline is and whether it is age appropriate. Some States require some evidence of repeated physical abuse as a measure of intentionality.

All States include sexual abuse in their definition of abuse either in general terms or by providing a list of particular acts that constitute sexual abuse. Psychological maltreatment can be identified by 32 of 52 (61.5%) States.[29]

Although there is broad consensus about types of maltreatment, which is specifically required as part of a national registry by the Adam Walsh Act, there are some concerns that the terms are not fully comparable across all jurisdictions.

CPS Responses and Categories of Findings

All jurisdictions have child abuse and neglect reporting laws that require certain professionals and institutions to report suspected maltreatment to a CPS agency. When a CPS agency receives a report of suspected child abuse and neglect, the first step is to screen the report to determine whether the allegations include behaviors or injuries that meet the State's statutory definition of child abuse and neglect. If the report is screened out, the agency may take no further action or may refer the case to community resources or prevention services.

Once a CPS agency has accepted a report of child abuse or neglect, the majority of cases receive an investigation.[30] State policies specify the standard of proof or evidence required to substantiate the allegation of maltreatment. More than one-half of all 52 States (61.5%) use a "preponderance of the evidence" or higher standard when making a finding concerning maltreatment. The preponderance of the evidence standard requires that there is enough evidence to demonstrate that it is more likely than not that the allegations are true. This standard is used by 29 States. Clear and convincing evidence is a higher standard and is used by 3 States. In 20 of 52 States (38.5%), a lower standard is sufficient to support a conclusion that a child has been maltreated. These standards include "probable cause," "some credible evidence," "reasonable cause," and "heightened credible evidence."[31] (See table 2.)

After completing an investigation, the CPS investigator, either alone or in conjunction with a supervisor or team, must determine whether the child has been maltreated according to the State's statutory definition of abuse and neglect and the associated standard of proof. In 24 States (66.7%) the terms "substantiated" or "founded" are used. In eight States (22.2%) the terms "indicated" or "reason to suspect" are used either in addition to, or instead of, substantiated or founded. Fourteen States (38.9%) use additional terminology including "reason to believe," "service required," "service recommended," "confirmed maltreatment," "determined or not determined," "valid or invalid," and "verified but not substantiated." Regardless of these differences, States are able to determine which findings result in the determination that a person will be classified as a perpetrator of maltreatment.[32]

The investigation response results in a specific finding on each allegation of maltreatment and, if the findings are substantiated, one or more persons may be considered to be perpetrators. In some States, a person can be found to be a perpetrator of abuse and neglect even if the behaviors did not result in actual injury to the child, if they created a substantial risk of harm. In other States, a perpetrator may not be identified unless services for the child or children were mandated. In these cases, the State has determined that the incident was a one-time occurrence and there is no future risk of harm to the child.[33]

In addition to specifying what types of behaviors are considered child abuse and neglect, many statutes specify the classes of persons who can be investigated for child abuse and neglect, often limiting it to specific types of persons considered to be caregivers. The variation among the States regarding persons who may be determined to be responsible for abuse and neglect is discussed in the next section.

Types of Perpetrators

In addition to defining child abuse or neglect, State law or written policy often contains specific definitions of persons who can be considered by CPS to be perpetrators of abuse or neglect. Forty-four of 52 States (84.6%) specify which classes of people can be considered perpetrators of abuse or neglect. Persons in caregiving roles are commonly included in the definition of perpetrators. More than one-half of the 44 States that specify the classes in law or policy include parents (88.6%), legal guardians (86.4%), foster parents (70.5%), relatives (68.2%), residential facility/group home staff (65.9%), child care providers (61.4%), and unmarried partners of parents (59.1%). Professionals and others in noncaregiving roles are less likely to be included in the definition of a perpetrator—educational staff/teachers (40.9%), other professions (22.7%), and neighbors or friends (20.5%). (See table 3.)

Twenty-three of 36 States (63.9%) specify which classes of people determined to be perpetrators of child maltreatment may be included on the data repository. More than one-half of the States include parents (82.6%), legal guardians (82.6%), foster parents (78.3%), relatives in a caregiving role (73.9%), unmarried partners of parents (73.9%), residential facility/group home staff (65.2%), and child care providers (65.2%). Fewer States include educational staff/teachers (39.1%), other professionals (21.7%), and neighbors or friends (17.4%). (See table 4.)

It is important to note that, in more than one-quarter of the States, minors in the home are not distinguished from adult perpetrators. In 16 of 44 (36.4%) States, minors are included in the definition of a perpetrator of abuse and neglect. In 8 of 23 States (34.8%), a minor can be designated as a perpetrator on the data repository.[34]

Due Process Procedures

In the Interim Report, HHS indicated that, if a national child abuse registry were established, "the only feasible way to effectively and efficiently provide due process protections is to require that submitting jurisdictions certify that for cases submitted to the national registry, minimum due process protections were available to the perpetrator." In determining what due process is required, the private interest of the individual at stake, the risk of erroneous deprivation, and the governmental interest must be weighed. In essence, due process requires that governments provide notice about and an opportunity to be heard before an adverse action is taken against an individual that may impact a private interest. When a person's name is placed on a registry, the government is taking an action that potentially could affect that person's family life, employment prospects, or his or her reputation in the community. At the same time, this action may further the government's compelling interest in protecting children from abuse and neglect.[35]

To date, the courts are not clear on the extent of the due process requirement that must be provided before making information about perpetrators available to others for all of the purposes for which information in a national registry may be used—abuse and neglect investigations, criminal investigations, background checks for prospective foster and adoptive parents, background checks for employment and licensing, background checks for teachers, etc. See appendix D for a discussion on the current status of case law related to child abuse and neglect data registries.

As a condition of receiving CAPTA funds, States must establish provisions, procedures, and mechanisms by which individuals who disagree with an official finding of abuse and neglect can appeal such a finding.[36] Following is a discussion of notice and appeal procedures that are currently provided to perpetrators of child abuse and neglect in the States. A brief discussion on whether perpetrators can be designated as such, while their case is under review is also provided.

Notice

In situations in which a report of abuse or neglect has been substantiated, nearly three quarters of the 52 States (71.2%) provide notice in writing to the individual found to be the perpetrator of maltreatment. Fewer States (59.6%) have specific law or written policy requiring notification to individuals regarding their designation on the State data repository.[37] Many of these States notify individuals about their designation on the State data repository at the same time they are informed of the substantiation decision.

Notice is typically served by certified mail, regular mail, or in person. The information contained in the notification documents varies. More than one-half of the 36 States responding to the survey include the following when notifying individuals of the substantiation decision, or include it in the separate notice regarding the designation on the data repository:

  • the fact that the agency has made a determination that the person was found to be a perpetrator (97.2%)
  • an explanation of any right to challenge the finding of abuse and neglect (94.4%)
  • the specific type of abuse and neglect committed (88.9%)
  • the timeframes for any challenges that may be made (88.9%)
  • the fact that the person will be designated a child maltreatment perpetrator on the data repository (75.0%)
  • the right to challenge being designated a child maltreatment perpetrator on the data repository (61.1%)
  • the consequences of being determined to be a perpetrator of abuse and neglect (55.6%)

Review and Appeal of Findings of Abuse and Neglect

Thirty-five of 36 States responding to the survey (97.2%) have law or written policy providing for review of the finding of abuse and neglect. One State indicated that reviews may happen at the local level and they are currently establishing a statewide policy for "due process procedures." If an individual challenges the State's finding of abuse and neglect, 26 States (72.2%) require the preponderance of evidence proof or a higher standard of proof at the first level of review. Six States (16.7 %) use a lower standard of proof for the initial review. These standards include some credible evidence, reasonable cause, or material evidence. (See table 5.)

The type of review provided at the first level of review offered to an individual found to be a perpetrator of abuse or neglect varies widely among the States:[38]

  • ten (27.8%) use a review of the written records at a higher level than a caseworker or supervisor
  • five (13.9%) give an in-person hearing before an administrative body within the agency
  • three (8.3%) give an in-person administrative hearing outside the agency
  • two (5.6%) offer an in-person hearing before a judicial body, judge or magistrate
  • fourteen (38.9%) States use some "other" method
  • one (2.8%) State does not have a statewide policy

For some States, the type of reviews provided depends on the circumstances of the case. These circumstances can include whether the case is court-involved or whether the perpetrator is a member of a specified class, (e.g. child care worker). In other States, the first level of review is determined by local policy or practice, or by the preference of the perpetrator requesting the review.

In nearly three-quarters of the States (72.2%), the length of time by which a first-level review of the investigative finding must be completed is indicated in law or written policy. Of these 26 States, only 10 could provide information about whether they currently had cases exceeding the timeframe. Six States reported that there are currently cases in which the required time for completion has not been met (varying from very few to more than one-quarter of the cases). Four States indicated that there are no cases pending that have exceeded the specified timeframe.

Three-quarters of States (77.8%) indicated that State law or written policy provides for a second level of review of the investigation finding. In more than one-half of these 28 States the second level of review is an administrative hearing, or a hearing conducted before a judicial body or magistrate.

Review and Appeal of Designation on the Data Repository

Three-quarters of the States (75.0%) have law or written policy allowing individuals to challenge the placement of their name on the data repository. The methods by which individuals can initially challenge the placement of their name on the data repository include review of the written documentation for the case at a higher level than a caseworker or supervisor and in-person hearings by an administrative agency inside or outside of the agency. Few States provide an in person hearing in front of a judicial body, judge, or magistrate. The standard of proof required at the first level of review in a majority of the States (61.1%) is a preponderance of the evidence. One State provides for a clear and convincing standard of proof. The remaining States provide for lower standards of proof.

Twenty-three States specify a timeframe for completing the first level of review. The timeframes required range from 10 business days to 180 days. More than one-half the States do not track this information or were unable to provide it. Five States indicated that they currently have cases pending that exceed the required timeframe.[39]

Timing of Designation

Eighteen of 52 States (34.6%) have law or policy allowing for the designation of a person on the data repository while the first-level review of the maltreatment finding is still being conducted. In 20 of 52 States (38.5%) there is no State law or policy regarding the timing of an individual's designation on the data repository. (See table 6.)

Maintaining Information on Perpetrators

The initial records of child welfare agencies focused largely on children who were removed and placed with private agencies. These records, existing as large ledgers, can still be found in some court systems. The last 40 years have seen a tremendous growth in automated information systems serving child welfare agencies, first primarily as financial systems, and then secondly as client-tracking systems for CPS, foster care, and adoption, often as separate systems. More recent developments over the last 20 years have focused on case-management systems that address the services provided to children and families. These systems identify all persons whether they are children, caregivers, collateral contacts, family members, or perpetrators, and establish relationships between individuals. While persons who are perpetrators might be identified in such systems, with few exceptions, the State data repositories are not primarily focused on perpetrators. The exceptions are sometimes maintained by other agencies, such as the Attorney General's Office.

The vast majority of data repositories, namely data systems with information on perpetrators, are statewide child welfare information systems (97.2%). In a majority of States, the umbrella social services agency has both technical responsibility and business control of the data repository. In 10 States (27.8%), the stand-alone child welfare agency has technical responsibility and in 12 States (33.3%) a stand-alone child welfare agency has business control. In a few instances, the State department of information technology has technical responsibility. In other words, depending on the State structure for providing child welfare services, in most States, the child welfare agency has lead responsibility for both the technical and business processes related to the data repository but, in some instances, another agency may have technical responsibility. The trend toward enterprise systems in many States may influence this finding in the future, with increased centralization across departments of major information systems. (See tables 7 and 8.)

In a quarter of the States (25.0%), the data repository includes data collected by Native American or Alaska Native tribes within the State. Five States (13.9%) include information from some tribes. Twelve States (33.3%) do not have tribal governments or jurisdictions in their States. The issue related to collecting and maintaining data on perpetrators who may exist only in tribal information systems may be an issue that should be discussed during the design phase of a national registry. (See table 9.)

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