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2700 Determination of Findings in an Investigation

2710 Allegation Disposition

APS IH / April 2017

APS bases investigation findings on APS definitions and a preponderance of the evidence.

A preponderance of evidence means it is more likely than not that the alleged abuse, neglect, or financial exploitation did or did not occur.

Allegation Disposition (Findings) Codes

Valid

Based on the standard of preponderance of the evidence, it is more likely than not that the maltreatment occurred.

Invalid

Based on the standard of preponderance of the evidence, it is more likely that the maltreatment did not occur.

Unable to Determine

The allegation disposition of Unable to Determine is used when the APS specialist:

  •   conducts a thorough investigation and assessment through observations and interviews with the alleged victim, alleged perpetrator, or collateral contacts;

  •   exhausts all leads for information;

  •   attempts to resolve discrepancies in evidence; and

  •   the evidence does not support a finding of Valid or Invalid that abuse, neglect, or exploitation occurred.

Valid-Reportable Conduct

The APS specialist uses the allegation disposition Valid-Reportable Conduct when it is determined the valid allegation of abuse, neglect, or financial exploitation meets the criteria for reportable conduct in an investigation involving a perpetrator eligible for the Employee Misconduct Registry (EMR).

See:

5410 Employee Misconduct Registry (EMR)

5411.2 Definition of Reportable Conduct

Valid/No Fault

Valid/No Fault is only used in the following situations:

  •   Inadequate care provided by an adult: A neglectful caretaker lacks the physical, intellectual, emotional, or financial capacity to provide the necessary care. This includes a ward serving in the role of caretaker.

  •   Inadequate care provided by a minor: A neglectful caretaker who is between the ages of 10 and 17.

  •   Physical or Emotional abuse: A perpetrator lacks the ability to understand his or her actions at the time of the incident because of an intellectual or developmental disability or cognitive impairment, including mental illness, dementia, and so on. The appropriateness of using this finding must be determined on a case-by-case basis, based on the details of each situation.

  •   Inadequate care by a family guardian (neglect only): A neglectful family guardian who lacks the knowledge or understanding of the alleged victim's disability or the available services to meet the alleged victim's needs.

The APS specialist must assess each situation on a case-by-case basis to determine whether Valid/No Fault is the appropriate finding.

A finding of Valid/No Fault is not used if the alleged perpetrator is:

  •   a paid caretaker, as defined in 1331 Perpetrators of Abuse and Financial Exploitation; or

  •   a contracted or professional guardian, including DADS.

Other

The allegation disposition Other is used when an investigation of the allegation was not completed.

If an allegation on an intake with multiple allegations was investigated in a previous case, the APS specialist:

  •   selects a disposition of Other for each duplicate allegation;

  •   documents in the Narrative of Section 1 of the Safety Assessment the case number of the original case in which the duplicate allegation was investigated;

  •   investigates each new allegation;

  •   selects the appropriate allegation disposition for each new allegation; and

  •   closes the Investigation stage using the appropriate closure code.

See:

2921 Investigation Closure Reason Codes

2921.1 Rapid Closure Codes and Disposition of Other

2652 Alleged Perpetrator Role for Allegations of Neglect Involving Wards

2711 Procedure for Determining the Validity of the Allegation

2711.1 Factors Weighed in Determining Neglect by a Caretaker or Paid Caretaker

APS IH / September 2012

The APS specialist determines whether the available evidence establishes that:

  •   the alleged perpetrator accepted responsibility for the alleged victim’s protection, food, shelter, or care or meets the definition of a paid caretaker;

  •   protection, food, shelter, or care was needed to avoid emotional harm or physical injury; and

  •   the alleged perpetrator failed to adequately provide the necessary protection, food, shelter, or care; or

  •   the alleged perpetrator failed to act or acted negligently in a manner that caused or may have caused emotional harm, physical injury, or death.

It is not necessary to show resulting harm or pain in order to validate neglect by a caretaker or paid caretaker.

DFPS Rules, 40 TAC §705.1009(b)

See:

1332 Perpetrators of Neglect

1342.1 Procedure for Assessing Physical Neglect (PHNG) Allegations

2711.2 Factors Weighed in Determining Self-Neglect

APS IH / September 2012

The APS specialist determines whether the available evidence establishes that:

  •   protection, food, shelter, or care was needed to avoid emotional harm or physical injury; and

  •   the alleged victim failed to obtain necessary protection, food, shelter, or care.

See:

1332 Perpetrators of Neglect

1333 Children as Perpetrators

1342 Neglect Allegations

1342.1 Procedure for Assessing Physical Neglect (PHNG) Allegations

2711.3 Factors Weighed in Determining Abuse

APS IH / September 2012

The APS specialist examines the relationship between the alleged perpetrator and the alleged victim to determine:

  •   whether the alleged perpetrator meets the definition of:

  •   a caretaker, family member, person with an ongoing relationship with the alleged victim, or

  •   a paid caretaker, as defined in Texas Administrative Code §705.1001(18); and

  •   the applicable definition of abuse based on the alleged perpetrator’s relationship with the alleged victim.

2711.31 Factors Weighed in Determining Physical Abuse

APS IH / September 2012

The Texas Administrative Code provides different standards for physical abuse by alleged perpetrators who are paid caretakers.

Alleged Perpetrator Is Not a Paid Caretaker

The APS specialist determines whether the available evidence establishes that:

  •   the alleged perpetrator is a caretaker, a family member, or a person with an ongoing relationship with the alleged victim;

  •   there was an action on the part of the alleged perpetrator that met the applicable definition of physical abuse; and

  •   the act resulted in emotional harm, physical injury, or death.

Evidence of resulting harm or pain includes, but is not limited to:

  •   the alleged victim’s statement;

  •   observations of the alleged victim’s behavior or injuries following the alleged abuse;

  •   statements by collaterals;

  •   documentation by professionals, such as physicians or home health nurses; or

  •   photographs of injuries, marks, and so on.

When the alleged perpetrator is a caretaker, family member, or other person with an ongoing relationship with the alleged victim, resulting emotional harm or physical injury is an indispensable element of the abuse definition. Risk of emotional harm or physical injury, by itself, does not justify validation of abuse.

Alleged Perpetrator Is a Paid Caretaker

When the alleged perpetrator is a paid caretaker, the APS specialist determines whether the available evidence establishes that:

  •   the alleged perpetrator is a paid caretaker as defined in 1331 Perpetrators of Abuse and Financial Exploitation;

  •   there was an action on the part of the alleged perpetrator that met the applicable definition of physical abuse; and

  •   the act resulted in or may have resulted in emotional harm, physical injury, or death.

When the alleged perpetrator is a paid caretaker, it is not necessary to show resulting harm or injury to validate physical abuse. Showing risk of emotional harm or physical injury is sufficient.

DFPS Rules, 40 TAC §705.1003(a)(b)

See:

1331 Perpetrators of Abuse and Financial Exploitation

1344 Physical Abuse (PHAB) Allegations

1333 Children as Perpetrators

2711.32 Factors Weighed in Determining Sexual Abuse

APS IH / September 2012

The APS specialist determines whether the available evidence establishes that:

  •   the alleged perpetrator is a caretaker, paid caretaker, family member, or a person with an ongoing relationship with the alleged victim;

  •   sexual activity took place between the alleged perpetrator and alleged victim; and

  •   the sexual activity was nonconsensual because:

  •   the alleged perpetrator knew or should have known that the alleged victim is incapable of consenting because of impairment in judgment due to mental or emotional disease or defect;

  •   consent was induced by force or threat against any person;

  •   the alleged victim was unconscious or physically unable to resist;

  •   the alleged perpetrator intentionally impaired the alleged victim by administering any substance without the alleged victim’s knowledge; or

  •   consent was coerced due to fear of retribution or hardship, or by exploiting the emotional dependency of the alleged victim on the alleged perpetrator.

DFPS Rules, 40 TAC §705.1005

Texas Penal Code, Chapters 21, 22, 43

See:

1331 Perpetrators of Abuse and Financial Exploitation

1345 Sexual Abuse (SXAB) Allegations

2711.33 Factors Weighed in Determining Emotional or Verbal Abuse

APS IH / September 2012

The Texas Administrative Code provides different standards for emotional or verbal abuse by alleged perpetrators who are paid caretakers.

Alleged Perpetrator Is Not a Paid Caretaker

The APS specialist determines whether the available evidence establishes that:

  •   the alleged perpetrator is a caretaker, family member, or a person with an ongoing relationship with the alleged victim;

  •   an act or verbal or nonverbal communication by the alleged perpetrator threatened violence; and

  •   a reasonable person would be fearful of imminent physical injury.

Alleged Perpetrator Is a Paid Caretaker

When the alleged perpetrator is a paid caretaker, the APS specialist determines whether the available evidence establishes that:

  •   the alleged perpetrator is a paid caretaker as defined in 1331 Perpetrators of Abuse and Financial Exploitation;

  •   an act or verbal or nonverbal communication by the alleged perpetrator was used to:

  •   curse,

  •   vilify,

  •   humiliate,

  •   degrade, or

  •   threaten; and

  •   there was resulting emotional harm; or

  •   the act or verbal or nonverbal communication was of such a serious nature that a reasonable person would consider it emotionally harmful.

DFPS Rules, 40 TAC §705.1007

See:

1343 Emotional or Verbal Abuse (EMAB) Allegations

1330 Perpetrators of Abuse, Neglect, and Financial Exploitation

2711.4 Factors Weighed in Determining Financial Exploitation

APS IH / September 2012

The APS specialist determines whether the available evidence establishes that:

  •   the alleged perpetrator is a caretaker, a paid caretaker, a family member, or a person who has an ongoing relationship with the alleged victim;

  •   illegal or improper acts or processes occurred using, or attempting to use, the resources (such as money, property, or identifying information) of the alleged victim for monetary or personal benefit, profit, or gain; and

  •   the alleged victim did not give informed consent because consent was:

  •   not voluntary;

  •   induced by deception or coercion; or

  •   given by an alleged victim whom the alleged perpetrator knew or should have known to be unable to make informed and rational decisions because of diminished capacity or mental disease or defect.

The APS specialist consults with the financial exploitation subject matter expert and the regional attorney to determine whether legal documents such as a trust, power of attorney, or guardianship authorized the transfer of the alleged victim’s assets to the trustee, agent, or guardian.

Financial exploitation is not validated if the alleged victim’s resources are not used or attempted to be used for the alleged perpetrator’s monetary or personal benefit, profit, or gain, even if the alleged victim disagrees with the alleged perpetrator’s handling of the resources.

However, if the evidence gathered indicates the alleged perpetrator’s management of the alleged victim’s resources is preventing the alleged victim from having the goods or services necessary to avoid emotional harm or physical injury, the APS specialist may consider validating other allegations, such as neglect by the caretaker or paid caretaker.

DFPS Rules, 40 TAC §705.1011

See:

1331 Perpetrators of Abuse and Financial Exploitation

1346 Financial Exploitation (EXPL) Allegations

1333 Children as Perpetrators

2673.1 Procedure for Investigations Involving Allegations of Financal Exploitation of a Resident of a Nursing Home

2680 Allegations Involving Paid Caretakers

2681.1 Alleged Victim Makes a Loan to a Paid Caretaker

2712 Procedure for Evaluating Credibility of the Evidence

APS-IH / November 2008

When there is conflicting evidence in a case, the APS specialist carefully weighs the relevant evidence (physical, demonstrative, documentary, and testimonial) to determine which is the more credible.

The APS specialist evaluates the credibility of the collected evidence by assessing the:

Coherence: How does the evidence fit together or fail to fit together?

  •   Does all the evidence tell the same story?

  •   If not, what are the undisputed facts and what are the points of difference?

  •   Is the description of how an injury or incident occurred consistent with the type of injury or incident?

  •   Which testimonial evidence does the documentary and demonstrative evidence support?

Qualification: Are differences in the evidence explained by witnesses’ different opportunities for knowledge?

  •   Did some witnesses have a clear view of the incident and did others have their view hampered by distance or obstruction?

  •   Is any witness’s ability to give accurate testimony impaired by cognitive, memory, or communication deficits?

  •   Are the documents original and from someone with firsthand knowledge?

  •   How much time went by after the incident before it was recorded in documentation or described in testimony?

  •   Were the documents created near the time of the incident? Was the document created in a timely manner or was there a significant delay?

Motivation: Are differences in evidence explained by any witness’s desire to affect the outcome of the investigation?

  •   Does any person in the case have a reason to be deliberately deceptive?

  •   What relationship does the person have with the alleged victim or the alleged perpetrator?

  •   Might similar testimonies be the result of collaboration?

  •   Are any witnesses angry at the alleged victim or the alleged perpetrator?

  •   Are any witnesses fearful of the consequences of testifying?

  •   Do any witnesses identify with the alleged victim or the alleged perpetrator?

  •   Is the alleged victim under undue influence?

  •   Are any witnesses motivated by conscious or unconscious bias?

Texture: Do pieces of testimonial evidence that differ as to substance also differ as to their degree and quality of detail, their internal consistency, and their general appearance of truthfulness?

  •   Which persons gave specific details and which did not?

  •   Are there inconsistencies within a particular person’s testimony?

  •   Were any witnesses uncooperative or unwilling to be interviewed?

  •   Did any witness display unusual demeanor during the interview?

The APS specialist consults the supervisor, the subject matter expert (SME), and Special Task Unit, as appropriate, for assistance in assessing the available evidence and determining if additional information or case action is needed.

2713 Procedure for Determining Allegation Findings

APS-IH / November 2008

The APS specialist:

  •   adds new allegations discovered during the investigation and selects the appropriate disposition in the Allegation Detail page;

  •   evaluates and weighs all relevant evidence to determine the validity of allegations of abuse, neglect, and financial exploitation;

  •   determines:

  •   what the competing versions of the incident are,

  •   their key points of difference,

  •   what evidence supports each version,

  •   which set of evidence is most credible and why,

  •   which version is more likely to be true, and

  •   what finding a preponderance of the evidence supports for each allegation.

See 2710 Allegation Disposition.

2714 Documentation of Conclusion Justification

APS IH / April 2017

The APS specialist documents a conclusion justification in the Investigation Conclusion page narrative to support the allegation findings for each allegation involving an alleged perpetrator. The documentation demonstrates to any reader that the allegation finding is correct.

The documentation must indicate that the APS specialist:

  •   considered all relevant evidence that both supports and refutes each allegation;

  •   considered whether the alleged perpetrator's actions fit the relevant definition of abuse, neglect, or financial exploitation;

  •   considered whether the alleged perpetrator fit the definition of caretaker for neglect allegations;

  •   made good judgment about credibility when there was conflicting evidence;

  •   demonstrated reasoning behind the finding for each allegation;

  •   avoided errors of logic, fact, grammar, and syntax;

  •   used objective and professional statements to support the allegation findings; and

  •   documented the conclusion justification in a clear, thorough, accurate, and persuasive summary.

The APS specialist documents the conclusion justification in the first three text boxes of the APS Investigation Conclusion Narrative in IMPACT.

  •   In the first text box, which is untitled, restate the allegation(s) associated with each alleged perpetrator(s).

  •   In the second text box titled "What evidence in this case is more credible and why," explain the credibility, or lack thereof, of any relevant evidence.

  •   In the third text box titled "Why are you validating or not validating the allegation(s)," explain why the evidence is or is not sufficient to validate the allegation.

If there are multiple allegations, number or title each allegation within each text box.

2715 Example of Conclusion Justification

APS IH / April 2017

First untitled text box

Allegation 1: Physical abuse by Max Smith. Max Smith allegedly abused Sara Smith by slapping her on the face, resulting in physical and emotional pain and a bruise to her right eye.

What evidence in this case is more credible and why?

Allegation 1 –The statements of Carol Bright and Susan Smith, who stated that they witnessed the act occur, support Sara Smith's statement that Max Smith slapped her face, and are assessed as credible. Ms. Bright and Ms. Smith were present when the act occurred and could clearly see and hear the incident.

The bruise to Ms. Smith's eye further supports that the act occurred. Max Smith's statement that he was at work when his mother received the bruise is not credible because his statements were not consistent and his timesheet showed that he was not at work on the day Ms. Bright and Ms. Smith took Sara Smith to the doctor to be treated for the injury.

Why are you validating or not validating the allegations?

Allegation 1 - The preponderance of evidence supports that Max Smith physically abused Sara Smith when he slapped her on the face. The TAC §705.1003 defines physical abuse by a caretaker, family member, or other person with an ongoing relationship with the alleged victim as any knowing, reckless, or intentional act or failure to act, including unreasonable confinement, corporal punishment, inappropriate or excessive force, or intimidation, which caused physical injury, death, or emotional harm. Max Smith's action of slapping Sara Smith, resulting in a bruise to Ms. Smith's right eye, satisfies the definition of physical abuse (PHAB) and the allegation is Valid.

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