August 21, 2006
DCF SUBSTANTIATION HEARING PROCESS
By: R. F. O'Neil, Research Assistant
You asked for a summary of the abuse substantiation hearing process used by the Department of Children and Families. You specifically asked how the subject of the hearing sees the agency records and what statutes govern the hearing.
Section 17a-101k of the Connecticut Statutes directs the Department of Children and Families (DCF) to establish a hearing process to allow a person who the department believes to be responsible for abuse or neglect to appeal that ruling.
The hearing process includes pre-hearing examination of records, the introduction of evidence, calling witnesses, and legal representation.
PA 05-207 directs DCF to update its policy on hearings. Although the act requires that it be done by July 1, 2006, it is currently in the final stages of completion, reports Tom DeMatteo, head of the Administrative Law and Policy Licensing Division of DCF.
REASON FOR A HEARING
Investigation of a Report of Abuse
After DCF receives a report of abuse or neglect, either through its hotline or one of its regional offices, it launches an investigation. If it concludes that there is reasonable cause to believe that the abuse or neglect occurred and that there is an identified perpetrator, it notifies the accused, among others, of its determination that the complaint has been substantiated (CGS § 17a-101k).
The notice must include:
1. a short and plain description of the basis for its recommended finding;
2. a statement that the commissioner intends to place the individual's name on its abuse and neglect registry unless he files an appeal;
3. a description of the potential adverse consequences of being listed on the registry, including its effect on obtaining or keeping a job that involves direct contact with children;
4. information about his right to bring an administrative appeal; and
5. a form he can sign and return indicating whether he intends to file an appeal.
If he does wish to appeal, he must return the form to DCF within 30 days.
After receiving notification of the outcome of the investigation, the subject of the investigation can request a review of the investigation results. Once the accused receives the written results of the review of the investigation, he has 30 days to request a substantiation hearing.
The appellant has the right to review his file at any point before the hearing. Mistakes in factual information can be corrected, such as names or addresses; however, information about the nature of the case cannot be corrected. The appellant may submit documents to be placed in the file (CGS § 17a-28m).
When the agency receives notice that the accused has requested a hearing, it must hold a prehearing review to determine whether the case should go further. If it does not think the charges have been adequately substantiated, it may reverse the substantiation recommendation, the case goes no further, and the accused is notified. Otherwise, the agency assigns the case to one of its hearing officers and notifies the accused.
An appellant who cannot afford an attorney does not have an attorney appointed for him or her.
SCHEDULING A HEARING
After receiving a written request for a substantiation hearing, the hearing officer has 30 days to schedule it (CGS § 17a-101k).
The hearing officer's duties include:
1. conducting the hearing;
2. administering oaths and affirmations;
3. subpoenaing witnesses;
4. requiring the production of records, physical evidence, and papers and documents; and
5. having the final authority to limit witnesses and taking any other necessary actions that will facilitate the hearing process (DCF Policy Manual § 22-12-7).
The hearing officer can postpone a hearing if there is sufficient reason for doing so and he has reasonable notice. He can uphold DCF's substantiation finding if the accused does not attend. A substantiation hearing can be consolidated with any other DCF administrative hearing at the hearing administrator's discretion (DCF Policy Manual § 22-12-5).
CONDUCT OF SUBSTANTIATION HEARINGS
Oral and Documentary Evidence
The parties can present oral and documentary evidence at the hearing, but the child who is the subject of the investigation cannot testify. The hearing officer must (1) limit or exclude any irrelevant, immaterial, or repetitive evidence and (2) apply the rules of privilege which govern confidential, professional communications (DCF Policy Manual § 22-12-7).
Copies of documentary evidence may be submitted if the originals are not readily available. Parties are allowed to request an opportunity to compare the copies to the originals. All parties and their attorneys have the opportunity to examine all before it is evidence submitted to the hearing officer. Each party also has the opportunity to cross-examine witnesses.
A party is permitted to introduce additional evidence if the hearing officer finds, after an offer of proof, that the additional evidence was not available at the time the substantiation finding was made, that the evidence is relevant and material, and that its introduction will promote the interests of justice (DCF Policy Manual § 22-12-7).
Hearings usually last three or four hours, report DeMatteo. Complicated cases can last longer. In such instances, the hearing officer attempts to schedule a continuance for the earliest opportunity that fits the needs of the parties, their attorneys, the witnesses, and the availability of the hearing room.
The proceedings are tape recorded.
The burden of proof rests with DCF. The department must prove that its substantiation of the complainant as the perpetrator of child abuse or neglect is supported by a fair preponderance of the evidence.
The hearing officer has 30 days from the conclusion of the hearing to prepare a memorandum of decision. The memorandum is mailed to both parties, the attorneys, the Bureau Chief of Child Welfare Services, DCF's regional office administration and casework staff, and the hearings unit for their files.
The memorandum must include:
1. the names of those present at the hearing;
2. the provisions of law, regulation, and policy applicable to the case;
3. the findings of fact and conclusions of law; and
4. the hearing officer's reasoning for making the decision he reached.
If the hearing officer reverses DCF's substantiation decision, he directs the department to revise its records to reflect the reversal. If he upholds the agency's finding, DCF must notify the abuser of his right to file an administrative appeal with the Superior Court.
An appellant who disagrees with the outcome of a hearing can file an administrative appeal in Superior Court. The court can only consider materials in the hearing record. This consists of:
1. written notices related to the case;
2. all petitions, pleadings, motions, and intermediate rulings, if any;
3. evidence received or considered;
4. questions and offers of proof, objections, and rulings affecting both;
5. the official recording of the proceedings;
6. the final decision.
The appellant can ask the court to block the implementation of the hearing's decision until the conclusion of court proceedings. If he does not do so, the DCF commissioner can place the appellant's name on the child abuse and neglect registry while the court case proceeds (CGS § 17a-101k(e)).