Thursday, November 4, 2010

Child Abuse and Neglect Registry 101

The issues in this Supreme Court decision are narrow and relate only to Human Services Board procedure, not the underlying substance of this child-protection-registry case.  The case began with a determination by the Department for Children and Families that parents R.P. and B.P. should be placed on the child protection registry for placing their children—four young daughters—at risk of harm by knowingly allowing the children to have contact with a convicted child sex abuser over an extended period of time.  Parents sought administrative review of DCF’s determination, which involved a reviewer examining the case and holding a conference with parents and their attorney.  The reviewer upheld DCF’s decision.  Parents then appealed this decision to the Human Resources Board (Board).

The Board hearing, which was scheduled for two days, was held before a hearing officer.  Mother B.P. was the first witness to testify, and after hearing her testimony, the hearing officer ordered DCF to file an offer of proof by way of affidavits to show that petitioners had actually acted in ways that constituted a “risk of harm” to the children.  The hearing officer stated that the hearing would be suspended until he decided, based on DCF’s submission, whether any further hearing was necessary.  DCF objected to the offer-of-proof order, arguing that the hearing officer’s procedure was at odds with the fair-hearing statute.  But DCF nonetheless agreed to produce an offer of proof by September 11, 2009. 

Instead of filing the offer of proof, however, DCF moved the Board to enforce its rules and proceed with the hearing to allow DCF to present additional evidence.  DCF argued that the hearing officer’s order requiring it to file a written offer of proof was unfair and not in accordance with Board rules.  If the Board decided to enforce the hearing officer’s order, DCF requested an extension of time to comply with that order.  In response to this motion, the hearing officer provided the Board with written recommendations.  He found that Board rules supported his order for an offer of proof, and argued that even if Board rules did not explicitly authorize that type of order, the authority was implied “because it was reasonably necessary to ensure the fair and efficient functioning of the Board.”  The hearing officer also recommended that if the Board upheld the hearing officer’s authority to order the offer of proof, then the Board should decide whether to award relief to parents due to DCF’s failure to comply with the order, or to remand the case to the hearing officer to further proceedings.  The written recommendations included a summary of the hearing officer’s belief that DCF would have a hard time proving that parents were “anything more than na├»ve.”

The Board decided that the hearing officer had the authority to order DCF to provide an offer of proof, and DCF’s failure to provide that offer combined with the hearing officer’s beliefs about DCF”s case, were enough to reverse DCF’s determination that parents should be placed on the child protection registry.  DCF appealed.

The Court held that a hearing officer has the authority to order an offer of proof because even though it is not an express power in Board rule or statute, it is a power “necessarily implied to enable the Board to carry out its sole statutory function—conducting fair hearings—effectively and efficiently.”  On the other hand, the Court agreed with DCF that the Board erred in reversing DCF’s determination to place parents on the child protection registry.  The Court noted that DCF’s motion to the Board was an interlocutory appeal of an evidentiary ruling under Fair Hearing Rule 1000.3(L).  Thus, the Board was limited to ruling on the motion, and should then have remanded the case to the hearing officer to allow DCF to comply with the ruling, and the hearing officer to make findings of fact and conclusions of law.  Without the hearing officer’s written findings, the Board could not enter an order on the child protection registry determination.  Thus, the Court remanded the case for the required additional proceedings. 

On remand, both DCF and the Board would be wise to review the Court’s ruling in another of this week’s cases, In re R.H., summarized here on SCOV law by our very own Gavin Boyles.  In re R.H. is another case regarding the child protection registry, but it focuses on the scope of Board review and the substantive legal standard that the Board must apply when reviewing DCF determinations. 

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