1. Timing of Administrative Findings / Preservation a. Notice Letter - PDF document

Christopher S.P. Gregory 2017 ORPC Conference Collateral Consequences of Administrative Child Abuse Findings 1. Timing of Administrative Findings / Preservation a. Notice Letter / Request for State Level Fair Hearing—The administrative appeals process provided through 12 C.C.R. § 2509-2:7.111 starts with a county department of human services making an internal finding that a person is responsible for an incident of child abuse or neglect. The county department transmits its finding for inclusion in the Statewide Child Abuse Registry. At about the same time, the county department also sends out a notice letter to the person associated with the finding. (Included example letter and “Request for State Level Fair Hearing”); see also 12 C.C.R. § 2509-2:7.110 (defining required contents of notice letter). i. Date of Notice—Triggers 90-day deadline for submitting administrative appeal. 12 C.C.R. § 2509-2:7.111 (C). An extension of the 90-day filing deadline is only allowed upon a showing of good cause. 12 C.C.R. § 2509-2:7.111 (E). ii. Severity/Type/Category of Incident—The specifics of the finding are defined by administrative rules. iii. Request for Hearing—Description of Basis for Appeal—By rule, there are only two grounds for appealing an administrative finding of abuse or neglect. First, an appellant may challenge the sufficiency of evidence. According to the relevant regulation, an administrative finding of child abuse/neglect is reversible if the finding “is not supported by a preponderance of credible evidence.” 12 C.C.R. § 2509-2:7.111 (B)(1). Second, an appellant may challenge the legal conclusions underlying an administrative finding of child abuse/neglect. Specifically, an administrative finding is reversible if the alleged acts involved do not match the legal definitions of child abuse/neglect asserted. 12 C.C.R. § 2509-2:7.111 (B)(2). It is generally sufficient to reference 12 C.C.R. § 2509-2:7.111 (B) as the basis for appeal. b. CANDRS (Child Abuse/Neglect Dispute Resolution Section)—Provided that an administrative appeal is submitted within the 90-day deadline, the CANDRS office will receive the appeal and generate an acknowledgement letter. It is important to contact the CANDRS office within 120 days of the office’s letter to discuss alternative dispute resolution or to demand an administrative hearing. If there is a lack of contact between the appellant and the CANDRS office, DHS will deem the appeal abandoned and permanently enter the underlying finding. 12 C.C.R. § 2509-2:7.111 (N). c. Ability to stay administrative proceedings pending a related D&N or criminal case—Upon request, CANDRS will hold the administrative appeal in abeyance pending an open D&N or criminal case. 12 C.C.R. § 2509-2:7.111 (G). d. Expungement Should be Automatic Following Favorable Outcome at Adjudication Hearing—According to § 19-3-313.5 (3)(f), C.R.S., the Colorado Legislature directs DHS to adopt regulations to expunge unsubstantiated findings from the statewide child abuse registry. See also 42 U.S.C. § 5106a (b)(2)(xii) (federal funding conditioned on development of regulations to expunge unsubstantiated administrative findings of child abuse). § 19-3-313.5 (3)(f), C.R.S. exists in the context of § 19-3-505 (6), C.R.S., which requires a trial court

Christopher S.P. Gregory 2017 ORPC Conference Collateral Consequences of Administrative Child Abuse Findings to advise respondent parents that DHS will expunge state-level administrative findings of child abuse/neglect where an adjudication hearing results in the dismissal of allegations of child abuse/neglect. Even with the federal and statutory directives to do so, DHS has not adopted regulations to expunge unsubstantiated administrative child abuse findings. If DHS refuses to expunge an administrative finding following the non-adjudication of a child as being dependent or neglected, a motion or argument should be presented to the trial court to preserve the issue for a direct appeal. A similar issue exists where a county department seeks dismissal of a D&N petition prior to / as part of an adjudication hearing. In re C.S. , 2017 COA 96. The question of whether a trial court has jurisdiction following a non-adjudication outcome is currently pending review by the Colorado Supreme Court. People In Interest of B.M.-M. v. G.S. , 16SC970 (Colo. Mar. 27, 2017). 2. Significance of Administrative Child Abuse Findings and the Statewide Child Abuse Registry a. Employment Background Checks i. Medical Fields—The definition of “health care professional” broadly includes physicians, dentists, dental hygienists, chiropractors, psychologists, nurses, optometrists, clinical social workers, family therapists and “other” licensed health care professionals. § 25-1-108.7 (3)(f), C.R.S. The standard credentialing application for health care professionals includes a question about being found civilly responsible for child abuse. 6 C.C.R. § 1014-4:FormXII (Question H). ii. Educational Careers—Various educational careers are impacted by an administrative child abuse finding. An inquiry into the statewide child abuse registry may be required by an individual school district. DHS regulations prohibit persons with an administrative record of child abuse from working/volunteering in child care facilities. 12 C.C.R. § 2509- 8:7.701.32. Additionally, DHS regulations prohibit persons with administrative records of child abuse from working/volunteering with neighborhood youth organizations. 12 C.C.R. § 2509-8:7.720.82. iii. Law Enforcement (Depending Upon Thoroughness of Agency Background Check) b. Foster Parent Certification—The absence of an administrative record of child abuse is a condition for foster parent certification. 12 C.C.R. § 2509-6:7.500.2 (B)(1)(a)(1). c. Adoptions—As part of the adoption process, prospective adoptive parents must accompany their adoption petitions with a DHS administrative background check. § 19-5-207 (2.5)(c), C.R.S. d. Volunteering / Work with Children i. Youth Programs ii. Church Programs iii. Schools e. Affected Constitutional Interests i. Parent-Child Relationship—A parent’s interest in the care, custody, and management of his/her child/children is recognized as a fundamental

Christopher S.P. Gregory 2017 ORPC Conference Collateral Consequences of Administrative Child Abuse Findings liberty interest within the scope of substantive due process guarantees. Santosky v. Kramer , 455 U.S. 745 (1982); see also Troxel v. Granville, 530 U.S. 57 (2000). By limiting a parent’s ability to participate in activities, educational events, sports, etc. that relate to the parent’s child, administrative child abuse findings impact the parent’s fundamental liberty interest. ii. 1 st Amendment / Colo. Const. Art. II, § 4—Because the limitations that arise through an administrative finding of child abuse can impact a parent’s ability to participate in religious activities (i.e. Sunday school, camps, after school programs, fellowship trips, etc.). Within this context, an administrative finding of child abuse affects a respondent parent’s right to free exercise of religion as well as the fundamental right to freedom of association. Bates v. City of Little Rock , 361 U.S. 516, 523 (1960) (describing fundamental nature of freedom of association). iii. Due Process—14 th Amend., U.S. Const.; Colo. Const. Art. II, § 25. iv. Equal Protection / Disparate Access to Justice—Many of the disadvantages of the administrative appeals process revolve around the expenses that the State can force upon a respondent parent. Because the administrative appeals process provides disparate opportunities for economically disadvantaged respondents to defend themselves, the process raises significant equal protection issues under the 14 th Amendment as well as Art. II, §§ 6 and 25 of the Colorado Constitution. Cf. M.L.B. v. S.L.J. , 519 U.S. 102, 124 (1996) (indigence cannot bar access to justice in criminal proceedings, quasi-criminal proceedings, and cases involving the termination of parental rights). 3. The Administrative Review Process—A Kangaroo Court a. Decision Made by County DHS i. Preponderance Standard—Required through the definition of a “founded” finding. 12 C.C.R. § 2509-1:7.000.2 (A). A “founded finding” contrasts with an “inclusive” finding (likelihood of abuse/neglect without sufficient evidence to establish preponderance) and an “unfounded” finding (clear evidence that abuse/neglect did not occur). ii. Definitions of Abuse and Neglect / Severity--12 C.C.R. § 2509-1:7.000.2 (A). 1. Abuse / Child Abuse and/or Neglect—Cross-referenced to the statutory definitions provided by § 19-1-103 (1), C.R.S. and § f19- 3-102 (1), C.R.S. 2. Emotional abuse—An identifiable and substantial impairment of the child's intellectual or psychological functioning or development or a substantial risk of impairment of the child's intellectual or psychological functioning or development as a result of the action or inaction of the alleged person responsible for abuse and/or neglect. 3. Environment Injurious to the Welfare of a Child--When the environment caused injuries to the welfare of the child or reasonably could be foreseen as threatening to the welfare of the