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1260 Administrative Review of Investigation Findings

CPS October 2017

Texas Family Code Subsections 261.309 (c) and (d) require DFPS to provide an administrative review of the findings of an investigation (ARIF) whenever CPS makes a finding of "Reason to Believe" against a person for abuse or neglect of a child, and the person (designated perpetrator) requests such a review. The DFPS rules for the ARIF are in 40 TAC §700.516.

The ARIF offers the designated perpetrator the right to challenge his or her designation as a perpetrator of abuse or neglect of a child. A designated perpetrator's request for an ARIF has no impact on the action taken on a case, and does not influence DFPS's decision to petition the court to remove a child from a home, restrict the requester's access to a child, or take other protective actions deemed necessary.

If a request for an ARIF is approved, a resolution specialist oversees the review and approves the written decision determining whether the allegations against the designated perpetrator are supported by a preponderance of evidence.

During the course of the ARIF, the resolution specialist:

  •   determines whether the designated perpetrator requesting the ARIF is eligible and notifies him or her (see 1261 Determining Eligibility and Notifying the Requester);

  •   notifies the designated perpetrator if the ARIF will be delayed because of pending civil or criminal investigation or court action, and notifies the requester of his or her eligibility for an ARIF after the delay is over (see 1262 Delaying the ARIF);

  •   enters a request for the redacted case record in OneCase, if the designated perpetrator wants a copy of the case record. See Appendix 1000-1: Records Production for ARIF of a CPS Investigation;

  •   organizes the ARIF proceedings (see 1263 Conducting the ARIF);

  •   provides a final written decision that upholds, overturns, or alters the investigation's findings (see 1264 Making a Final ARIF Decision);

  •   documents the results and updates potential revisions in the case in IMPACT (see 1265 Documenting the ARIF Decision in IMPACT); and

  •   arranges notification of the ARIF's results to the requester and other related parties (see 1266 Sending Notification of the Written Decision).

An ARIF is an informal review process that does not involve a trial and does not include formal witness testimony.

The resolution specialist does not review the DFPS investigation risk assessment during the ARIF. The resolution specialist may look at the risk assessment, but does not consider it regarding the disposition.

Note: A designated perpetrator has the right to bring a legal representative to the review. The parent or guardian of a minor designated perpetrator may also speak on the child's behalf during the review.

An adult designated perpetrator may bring a support person to a review, but the support person does not participate in the review. Any witnesses for the designated perpetrator must submit their statements in writing and the resolution specialist does not interview them. See 1263 Conducting the ARIF.

40 TAC §700.516(g)

1261 Determining Eligibility and Notifying the Requester

1261.1 Determining Initial Eligibility

CPS October 2017

When a designated perpetrator requests an ARIF, the resolution specialist must determine whether the perpetrator is eligible for an ARIF. The requester is eligible if:

  •   he or she has the role of designated perpetrator (DP) or designated victim/perpetrator (DB) in the investigation;

  •   he or she has requested the review in writing within 45 days after receiving the DFPS Notice to Designated Perpetrator letter regarding the findings of the investigation. Exception: The region may provide an ARIF for requests beyond the 45-day limit if the requester did not receive notice of his or her right to receive an ARIF or for other good cause;

  •   DFPS has not previously provided him or her with an ARIF or a release hearing on the same allegation (the requester is not eligible for two ARIFs on the same allegation); and

  •   a court has not made a previous finding against him or her consistent with the specific allegation for which he or she is requesting the ARIF. A court making a finding against the designated perpetrator consistent with the specific allegation for which he or she is requesting the ARIF includes the following:

  •   a court order specifically finds that the requester committed abuse or neglect in the situation for which he or she requested the ARIF;

  •   a court order terminates the parental rights of the requester as a result of the incident for which he or she requested the ARIF;

  •   the requester has been convicted of a crime as a result of the incident for which he or she requested the ARIF; or

  •   there is another court finding legally sufficient for denying the ARIF.

The resolution specialist must deny the ARIF if the above conditions are not met.

To determine whether the requester is eligible, the resolution specialist may review the entire case record, review relevant court records, request a criminal background check, and seek other relevant information from the requester.

1261.2 Notifying the Requester of Initial Eligibility Determination

CPS October 2017

Denial of ARIF

If DFPS determines that the requester is ineligible for an ARIF, the resolution specialist must notify him or her in writing within 45 days of receipt of the request for an ARIF. The letter should indicate that the request has been denied and the reason for its denial.

Notice That ARIF Will Be Provided

If DFPS determines that the requester is eligible for an ARIF and a delay is not required, the resolution specialist must notify him or her of this decision.

If the resolution specialist is unable to make contact with the requestor to schedule the review and the requestor does not respond to the attempts to make contact within 30 days of the initial attempt, DFPS will not proceed with the review and the requestor waives his or her right to an ARIF.

If the requestor subsequently contacts DFPS after the above-specified timeframe, the resolution specialist may reschedule the review if the resolution specialist determines good reason existed for exceeding the timeframe.

40 TAC§700.516(e)

The resolution specialist must conduct the review proceedings within 45 days of receipt of the request for an ARIF. (See 1262 Delaying the ARIF.)

40 TAC§700.516(d)

1262 Delaying the ARIF

CPS October 2017

If a requester is eligible for an ARIF and a related criminal investigation or civil or criminal court case exists, the resolution specialist consults with the regional attorney to determine whether the ARIF should proceed or be delayed. Delays can occur at any point in the ARIF process.

40 TAC§700.516(f)

Guidelines for deciding to delay the ARIF are as follows:

If:

Then:

a prosecutor or law enforcement agency requests a delay of under 60 days,

the resolution specialist must delay the ARIF for up to 60 days following the request.

The resolution specialist must document the request.

a prosecutor or law enforcement agency requests a delay that is over 60 days (or until proceedings have been completed*) and:

1.  the delay is approved by the regional attorney ; and

2.  the request is in writing and received within 60 days of the law enforcement agency or prosecutor's original request,

the resolution specialist must delay the ARIF for the requested period.

The resolution specialist must file the written request in the paper case record.

Note: If the prosecutor or law-enforcement agency requests the delay verbally but fails to provide a written request, the resolution specialist must send the prosecutor or law enforcement agency a letter requesting the information in writing, explaining that the ARIF will proceed if the prosecutor's or law enforcement's written request for the delay and the length of delay is not received within 60 days.

a prosecutor or law enforcement agency requests a delay of any length, but the ARIF requester's employment or volunteer position may be jeopardized or other adverse actions incurred from the finding of "designated perpetrator" or "designated victim/perpetrator",

the resolution specialist and the regional attorney should contact these parties and attempt to provide a timely ARIF while accommodating the need for the delay.

The resolution specialist must document agreements in a letter and forward it to the prosecutor or law enforcement agency. The resolution specialist must file the letter in the paper case record.

a prosecutor or law enforcement agency does not request a delay, and the ARIF requester is a party to a conservatorship suit in which termination of the requester's parental rights is being sought based on the specific incident about which the ARIF is requested,

the resolution specialist must delay the ARIF "until proceedings have been completed." *

The resolution specialist must document the reason for the delay.

the circumstances under which the request for delay is made do not fall under one of the above criteria, but the associate commissioner of CPS and DFPS general counsel approve a delay because of extenuating circumstances,

the resolution specialist may delay the ARIF for up to 60 days following the request or "until proceedings have been completed." *

The resolution specialist must document the reason for and approval of the delay.

the circumstances under which the request for delay is made do not fall under one of the above criteria,

the resolution specialist must provide the ARIF in a timely manner.

*Note: "until proceedings have been completed" is defined as the point at which a final order is entered in the termination case or other relevant civil case, a final disposition is made in the criminal case, or a declaration is made that the criminal case has been closed or become inactive.

1262.1 Notifying the Requester of the ARIF Delay

CPS October 2017

If a decision is made to delay the ARIF, the resolution specialist must notify the requester in writing within 45 days after the request was received. The notification must indicate the length of time of the delay or state that the requester may notify CPS when the court case has been completed or the criminal investigation has been closed, as appropriate. The notification must also indicate that the resolution specialist will review the requester's eligibility for an ARIF after the delay.

1262.2 Determining Eligibility and Notifying the Requester After a Delay

CPS October 2017

The ARIF may be denied after a delay only when a court has made a previous finding against the requester that is consistent with abuse and neglect regarding the specific allegation for which the ARIF is being requested. Otherwise, the ARIF must be provided.

40 TAC§700.516(c)

Notice of Denial of ARIF After a Delay

If the ARIF is denied after a delay, the resolution specialist must notify the requester in writing within 45 days after the time period for the delay has elapsed or within 45 days after the requester has notified the agency that the court case has been completed or the criminal investigation has been closed. The reason for the denial must be included in the notice letter.

Notice that ARIF Will Be Provided After a Delay

If the requester is determined eligible for an ARIF after it has been delayed, the resolution specialist must notify the requester that the ARIF will be provided. The resolution specialist must conduct the review within 45 days after the time period for the delay has lapsed, or within 45 days after the requester has notified the agency that the court case has been completed or the criminal investigation has been closed. The resolution specialist must include information in the notice about the time and place of the ARIF, and how it will be conducted.

40 TAC§700.516(f)

1263 Conducting the ARIF

1263.1 Notifying the Requester and CPS Staff of the ARIF

CPS October 2017

The resolution specialist must inform the requester that an informal discussion or review will be held and state the time and place of the meeting. The requester may:

  •   appear in person at the review;

  •   invite a representative to speak on his or her behalf; and

  •   submit relevant written material.

The resolution specialist must inform the investigation worker and supervisor that they may meet with the resolution specialist before the review and submit relevant written material. DFPS does not notify other individuals of the review. If others desire to participate in the review or provide additional information, the resolution specialist may permit this at his or her discretion. The resolution specialist notifies the regionally designated staff of the ARIF result.

1263.2 Holding the ARIF

CPS October 2017

The review is an informal discussion in which the participants may make statements, provide information, or ask questions. The resolution specialist reviews the CPS case record, asks questions to clarify issues, and gathers other relevant information. The resolution specialist may consider all original allegations relating to the investigation, including allegations determined "reason to believe," "unable to determine," or "ruled out" at the conclusion of the investigation. No cross-examination of witnesses occurs. Formal rules of evidence do not apply.

40 TAC§700.516(h)

While the resolution specialist may seek further information about the case to arrive at a decision, the review is not intended to be a re-investigation of the allegations. If further investigation is needed, the region may initiate a new investigation.

If the requester does not speak English or is hearing impaired, DFPS must provide a certified interpreter unless the requester chooses to provide one. Requesters are responsible for all costs incurred, including those charged by an interpreter if they choose to provide one themselves.

1264 Making a Final ARIF Decision

CPS October 2017

The resolution specialist may base his or her decision on relevant evidence gathered in the investigation and ARIF process, including information that is in other parts of the case record, collected to determine eligibility for the ARIF, or received during the review proceedings. The resolution specialist must determine whether the original allegations against the requester are supported by a preponderance of the evidence, which is the standard of evidence for all ARIF decisions. On this basis, the allegations are upheld, overturned, or altered.

The ways in which the resolution specialist can uphold, overturn, or alter the disposition, type, or severity of abuse or neglect in an allegation are indicated in the following table:

If the resolution specialist decides:

then the resolution specialist may:

there is a preponderance of the evidence indicating the requester has abused or neglected a child,

  •   leave the disposition of the allegation as "reason to believe";

  •   leave the type of abuse or neglect in a confirmed (that is "reason to believe") allegation as originally noted in the record;

  •   leave the severity of the abuse or neglect in a confirmed allegation as originally noted in the record;

  •   change the type of abuse or neglect in a confirmed allegation;* or

  •   change the severity of abuse or neglect in a confirmed allegation.**

there is not a preponderance of the evidence indicating the requester has abused or neglected a child,

  •   leave the disposition of the allegation as "unable to determine" or "ruled-out"; or

  •   change the disposition of the allegation from "reason to believe" to "ruled out" or "unable to determine."

*An example of changing the type of abuse or neglect in a confirmed allegation would be to change an allegation of "reason to believe" for physical abuse to an allegation of "reason to believe" for neglectful supervision. See 1265.4. Changing the Type of Abuse or Neglect in a Confirmed Allegation.

**An example of changing the severity of abuse or neglect in a confirmed allegation would be to change an allegation of "reason to believe" that the requester physically abused a child to a severe degree to an allegation of "reason to believe" that the requester physically abused the child to the extent that it resulted in the child's death (that is, "fatal" severity). See 1265.5 Changing the Severity of a Confirmed Allegation to or From "Fatal".

40 TAC§700.516(i)

Updating DFPS Records to Reflect the New Decision

If changes are made to any of the allegations as a result of the ARIF, the resolution specialist must ensure that the record of the allegations in IMPACT reflects the decisions made in the ARIF. (See 1265 Documenting the ARIF Decision and Change of Allegations in IMPACT).

40 TAC§700.516(j)

1265 Documenting the ARIF Decision and Change of Allegations in IMPACT

CPS October 2017

The resolution specialist must document in IMPACT that the ARIF was conducted, including all related contacts and decisions, and the results of the review. The information is documented through an Administrative Review (ARIF) stage or in a closed-stage addendum when the ARIF stage will not open. The resolution specialist must file in the paper case record original or signed requests, letters, etc., that cannot be placed in IMPACT.

Allegations in IMPACT must be modified to reflect changes made in the review. These changes are made through the ARIF stage or a data fix.

1265.1 Documenting and Changing Allegations in the ARIF Stage

CPS October 2017

The resolution specialist must document the results of the ARIF in the ARIF stage in IMPACT if it will open. This stage must be opened at the time the resolution specialist receives the request for the ARIF.

The resolution specialist must document the information regarding the ARIF on the Administrative Review and Appeal window and in the "Forms Info..." narrative that can be accessed from the window. The resolution specialist must complete the "Result" field on the window as follows:

  •   Select "DFPS position upheld" if there is at least one allegation against the requester with the disposition of "reason to believe" that remains in the investigation.

  •   Select "DFPS position not upheld" if there are no allegations against the requester with the disposition of "reason to believe" that remain in the investigation.

If the decision made in the ARIF changed the disposition of an allegation from "reason to believe" to "unable to determine" or "ruled out," the resolution specialist must make this change in IMPACT through the ARIF stage. Otherwise, changes to allegations in IMPACT are made through a data fix (see 1265.3 Changing Allegations Through a Data Fix.

1265.2 Documenting in a Closed-Stage Addendum Contact

CPS October 2017

If IMPACT will not open the ARIF stage in the case, the resolution specialist must document the results of the ARIF in a closed-stage addendum contact that is attached to the investigation being reviewed. The information must be recorded all at once at the end of the review process since a closed-stage addendum contact cannot be modified after being saved.

The resolution specialist must request a data fix to make any change in allegations (see 1265.3 Changing Allegations Through a Data Fix).

1265.3 Changing Allegations Through a Data Fix

CPS October 2017

Changes in allegations that can be made through data fixes include:

  •   Changing the allegation disposition from "reason to believe" to "unable to determine" or "ruled out." (Note: If the resolution specialist is documenting the ARIF in the ARIF stage, the changes are instead recorded there.)

  •   Changing an allegation disposition from "ruled out" or "unable to determine" to "reason to believe." The resolution specialist must state the severity of the allegation.

  •   Changing the type of a "reason-to-believe" allegation (see 1265.4 Changing the Type of Abuse or Neglect in a Confirmed Allegation).

  •   Changing the severity of a confirmed allegation (see 1265.5 Changing the Severity of a Confirmed Allegation to or From "Fatal").

To request the data fix, the resolution specialist must provide the following information in Section 2 of the IMPACT Database Correction and Stage or Case Reopen Request form:

  •   In the box entitled List the specific data that needs correction, enter the beginning and ending dates of the investigation under review, the identification number of each allegation that needs to be changed, and any other relevant information.

  •   For example: "Investigation from 8-2-2001 to 10-1-2001. Allegation with identification number of 12345678 that Joe Jones ABAN Susie Queue, R/O; allegation with identification number of 23456789 that Joe Jones NSUP Johnny Jones, RTB; reason for death of Johnny Jones is not a/n."

  •   In the box entitled List the correct data that needs to be corrected, indicate by allegation identification number the changes that should be made in that allegation and indicate any other changes needed.

  •   For example: "Change disposition of allegation with identification number of 12345678 to RTB with moderate severity; change the severity of the allegation with identification number of 23456789 to Fatal; change the reason for death of Johnny Jones to abuse/neglect — no prior."

IMPACT Note: To find the identification number for an allegation, scroll to the right on the Allegation List window.

1265.4 Changing the Type of Abuse or Neglect in a Confirmed Allegation

CPS October 2017

The resolution specialist may decide that the requester did not commit one type of abuse or neglect but did commit another. Generally, this occurs when the evidence does not meet the definition of one type of abuse or neglect but does meet another definition. In this instance, the results of the ARIF would be that the original allegation was ruled out but a new allegation reflecting a different type of abuse or neglect was confirmed against the requester.

When this is the result of the ARIF, changing the type of abuse or neglect in the allegation in IMPACT is a two-step process. The resolution specialist:

1.  Changes the disposition of the original allegation to "ruled out" through the ARIF stage or through a database correction request.

2.  When changing the type of abuse or neglect, requests a data fix to add a new allegation with the same perpetrator, same victim, new type of abuse or neglect, RTB disposition, and a level of severity appropriate to the case.

See procedures for requesting a data fix in Item1265.3 Changing Allegations Through a Data Fix.

1265.5 Changing the Severity of a Confirmed Allegation to or From "Fatal"

CPS October 2017

In an ARIF, the resolution specialist must not change the severity of an allegation to or from "fatal" unless that is appropriate to the evidence in the case. When the resolution specialist changes the severity of an allegation to or from "fatal," the resolution specialist must ensure that the reason for the child's death is consistent with the change in the severity. The resolution specialist must:

  •   review the Child Fatality Protocol Handbook to ensure that all appropriate fields are updated or that data fixes are requested.

  •   notify the lead child safety specialist for the region of the fatality investigation to alert them to a pending ARIF and change in severity. The lead CSS works with the appropriate risk manager to ensure that all public reporting requirements are met.

Changing Severity to "Fatal"

If the resolution specialist changes at least one of the severity codes to fatal, he or she must request an IMPACT data fix. The resolution specialist must ensure that staff:

  •   named the deceased child as a victim;

  •   answered YES to the question: Is this a child fatality allegation?;

  •   assigned the disposition of Reason to Believe;

  •   selected Fatal for the severity;

  •   if a CPS case is being reviewed, entered a CPS reason for death into the Person Detail window, and the resolution specialist chose one of the following in IMPACT:

  •   abuse or neglect in an open case, or

  •   abuse or neglect in a closed case, or

  •   abuse or neglect, no prior.

See procedures for Ensuring Consistency in IMPACT When a Child Dies and Documenting a Child's Death in the Child Fatality Protocol Handbook.

The resolution specialist must notify the lead child safety specialist for the region of the fatality investigation to alert him or her to the change in severity.

Changing Severity from "Fatal"

Likewise, if the resolution specialist changes a severity code from "fatal" to another degree of severity, he or she must request an IMPACT data fix. The resolution specialist must ensure that staff:

  •   did not assign the severity of Fatal to the deceased child victim;

  •   selected YES for the question Is this a child fatality allegation?, if this is a child death investigation;

  •   assigned the proper disposition for each allegation; and

  •   entered the CPS reason for death into the Person Detail window, and the resolution specialist chose one of the Not abuse or neglect related Reasons for Death in IMPACT.

See procedures for Ensuring Consistency in IMPACT When a Child Dies and Documenting a Child's Death in the Child Fatality Protocol Handbook.

The resolution specialist must notify the lead child safety specialist for the region of the fatality investigation to alert them to a pending ARIF and change in severity. The lead CSS works with the appropriate risk manager to ensure that all public reporting requirements are met.

1266 Sending Notification of the Written Decision

1266.1 Notifying the Requester of the Decision

CPS January 2017

Within 45 days after the review proceedings are held, the resolution specialist must send the requester the written decision. If the resolution specialist upheld the finding, he or she must ensure that this notification informs requesters of their right to make an appeal to the DFPS Office of Consumer Affairs if they are dissatisfied with the decision. The notification must include the following address and telephone number of the ombudsman:

DFPS

Office of Consumer Affairs, Y-946

Department of Family and Protective Services

P.O. Box 149030

Austin, Texas 78714-9030

1 (800) 720-7777

Fax -512-339-5892

Email: oca@dfps.state.tx.us

1266.2 Notifying the Parent/Guardian and Reporter

CPS January 2017

If the ARIF changes the findings in the investigation, the resolution specialist must provide notification of the new findings to everyone notified of the original investigative findings, including the victim’s parents/guardians and professional reporters, when the professional was told that allegations were confirmed against the requestor. Professional reporters and non-professional reporters who were originally told only whether CPS planned to provide services should not be notified of the ARIF’s results.

1266.3 Accessing, Processing, and Filing Notification Letters

CPS January 2017

The resolution specialist accesses, or composes, then processes the notification letters as follows:

If the resolution specialist:

To notify the requester:

To notify the parent or professional reporter (if appropriate):

documented the ARIF in the ARIF stage:

the resolution specialist must generate the cover letter and the Findings of Administrative Review/Appeal form from the closed ARIF stage, sign the cover letter, and mail the letter and form to the requester.

the resolution specialist must generate the Parent or Professional Reporter letter from the closed ARIF stage, sign, and mail a letter to each of these parties.

documented the ARIF in a closed-stage addendum contact:

the resolution specialist must compose and sign a cover letter, complete the Findings of Administrative Review/Appeal form under the Smiley icon, and mail the letter and form to the requester.

the resolution specialist must compose, sign and mail a letter to each of these parties.

1267 Providing an ARIF During the Release-Hearing Process

CPS January 2017

CPS may at its discretion provide the designated perpetrator with an ARIF as part of the release-hearing process when he or she did not receive a post-investigation review (see 1294 Designated Perpetrator Does Not Request a Release Hearing and DFPS rules 40 TAC §700.605).

The release-hearing process begins with DFPS (usually Licensing or CPS) choosing to disclose to a person’s employer, volunteer agency, administrator of a facility regulated by the Licensing division, etc., that the person perpetrated child abuse or neglect. The process ends when a release hearing is held before an administrative-law judge in the State Office for Administrative Hearings or when the perpetrator fails to request a release hearing.

When Licensing initiates the release-hearing process, procedures vary depending on the date of the findings:

  •  Findings Prior to April 16, 1999. Licensing requests CPS to review the investigation to determine whether the evidence meets the preponderance of the evidence standard that the perpetrator abused or neglected children. This review is called a “preponderance review” or “desk review.”

  •  Findings After April 16, 1999. Licensing forwards the case to the licensing attorney without requesting that CPS initially review the investigation.

The release-hearing process for a CPS-designated perpetrator involves CPS conducting an internal review of the case to determine whether the findings were proven by a preponderance of evidence. This review can be an ARIF or a preponderance review. If an ARIF was held prior to DFPS’s decision to release the findings, a preponderance review is usually unnecessary; if not, the preponderance review may be conducted in lieu of an ARIF.

If a designated perpetrator desires an ARIF despite DFPS’s decision to substitute the preponderance review for an ARIF, DFPS can choose to provide the perpetrator with the review.

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