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Title:

Child Welfare Manual

Section 2:

Intake

Chapter 4:

Investigation Response

Subsection 5:

Alleged Perpetrator Appeal Process

Sub-Subsection 1:

Administrative Review Process

Effective Date:

May 29, 2012

§2 ch4: Investigation Response

• 4.5.1   Administrative Review Process

  The alleged perpetrator can seek an Administrative Review if he or she submits a request for an Administrative Review no later than sixty (60) days from the date he or she received the CS-21, or within sixty (60) days from resolution of pending criminal charges. "Pending criminal charges" was defined in the Pitts case to mean that actual criminal charges have been formally filed with the Court. The Court’s decision established guidelines around when the Division can: 1) proceed with an administrative review; and, 2) release Child Abuse/Neglect (CA/N) Investigative records to an alleged perpetrator. See, Stephen J. Pitts vs. Williams and Levy, Missouri Court of Appeals Case No. WD71275.

  If the perpetrator files a timely request for an Administrative Review, the Division cannot list the alleged perpetrator’s name in the Central Registry until such time as the CANRB reviews and upholds the Division’s decision.

  Alleged perpetrators with a preliminary finding have three levels of review available to them:

  • Local Administrative Review - If eligible, this is the first level of review provided to the alleged perpetrator.
  • Independent Review by the CANRB - Missouri has multiple boards consisting of professionals outside the Division to hear and review cases where the alleged perpetrator disagrees with the finding of child abuse or neglect by a Preponderance of Evidence.
  • De Novo Judicial Review- If the Division’s determination of POE was upheld in CANRB, the alleged perpetrator has the right to take the matter to court for a judge’s decision on the POE for child abuse or neglect.

  • 4.5.1.1 Cases that are Ineligible for an Administrative Review

    There are three basic situations where the alleged perpetrator is not eligible for an Administrative Review. They are:

    • Situations in which criminal charges have actually been filed in court and are still pending;
    • A Criminal Court conviction arising from the child abuse or neglect investigation; and,
    • A Juvenile or Family Court adjudication arising from the child abuse or neglect investigation.

    Any case which presents pending criminal charges is ineligible for an Administrative Review until the criminal charges have been resolved. In cases where there is a pending criminal investigation or the Division is uncertain regarding the existence of pending charges, staff are directed to send the Request for Pending Criminal Charges Letter, CS-21F, to the Prosecuting Attorney. In addition, staff should use administrative or other search engine devices, such as Case.net. A copy of the CS-21F and any subsequent correspondence shall be retained in the Child Abuse/Neglect (CA/N) Investigation record. Any documentation which verifies whether or not there are pending criminal charges must be included in the CA/N record.

    If the alleged perpetrator is found guilty of child abuse or neglect (convicted of a specific crime of child abuse or neglect) arising out of the incident of child abuse or neglect which was the subject of the investigation, he or she is not eligible for an administrative review of the findings for which he or she has been convicted. If the alleged perpetrator makes an Alford Plea in resolution of pending criminal charges, staff should refer the case through appropriate supervisory channels to the DLS. The question about whether an administrative review can proceed when there are pending criminal charges, whether CA/N has been substantiated by court adjudication or whether the alleged perpetrator has been found guilty of criminal charges arising out of the incident in question often involves complex legal issues. If staff have questions about this, they should refer the case through appropriate supervisory channels to DLS for legal advice. Staff shall not enter a finding of substantiated by court adjudication or deny a request for administrative review on the grounds that the matter has been court adjudicated based on verbal information. Staff must have a copy of the relevant court orders in the investigation file before making these findings.

    Under Section 210.153.8 RSMo, the Division’s findings for child abuse or neglect by a POE which are substantiated by "court adjudication" shall not be heard by the CANRB. This would include any cases adjudicated by the Juvenile or Family Court. If it appears that the alleged perpetrator is ineligible for an administrative review because of the adjudicatory findings of the Juvenile or Family Court, then a copy of the CA/N and a copy of all court related documents, including: all petitions, motions to modify and adjudicating documents (e.g., orders, findings of fact and judgments) shall be sent to the local Division of Legal Services personnel to determine application of the court’s adjudicated finding in conjunction with the investigation finding. The court related documents shall be placed in the investigative file prior to an entry of court adjudicated into FACES.

  • 4.5.1.2 Notification to Alleged Perpetrators who are Ineligible for Administrative Review

    If it is determined that the alleged perpetrator is not eligible for an Administrative Review due to any of the above reasons, the Circuit Manger, OHI Unit Manager, or Regional Office designee should notify the alleged perpetrator using the Administrative Review Ineligibility Letter, CS-21E.

    The Circuit Manager, OHI Unit Manager, or Regional Office designee should update the Appeal screen with the appropriate determination for cases in which the alleged perpetrator’s right to receive an Administrative Review has been suspended by pending criminal charges. It is imperative for the Appeal screen to be updated accordingly to avoid placing the alleged perpetrator on the Central Registry until after he or she has been afforded due process. This step should be completed when the alleged perpetrator has filed a timely request for an Administrative Review or the Division has obtained knowledge that the alleged perpetrator’s eligibility has been suspended due to pending criminal charges.

    If, following the local Administrative Review, but prior to the CANRB review, the local office determines that the alleged perpetrator is no longer eligible for appeal due to pending criminal charges or court adjudication, the local office must immediately notify the CANRB liaison, and update the FACES Appeal screen accordingly. The CANRB liaison will then notify the alleged perpetrator that he or she is not eligible for a CANRB review.

  • 4.5.1.3 Local Child Abuse/Neglect Administrative Review

    The local Administrative Review is:
    • An independent review of documents by the Circuit Manager, OHI Unit Manager, or Regional Office designee; and,
    • A review of the evidence in the record of a CA/N investigation to assure that the conclusion reached during the investigation was the correct conclusion.

    The Circuit Manager, OHI Unit Manager, or Regional Office designee shall receive the written request for an Administrative Review from the alleged perpetrator. The FACES Appeal Screen must be updated by staff within five (5) business days of receiving the request for an Administrative Review. Failure to update this screen promptly will result in the system automatically updating to a "Final Determination" at sixty (60) days from the "Preliminary Finding" at which time the alleged perpetrator’s identity will be added to the Central Registry.

    The reviewer should consider if the investigation was sufficiently completed, and if the CA/N record contains sufficient documentation to support all of the legal elements of child abuse or neglect by a POE. Consultation with the Regional Office is encouraged as needed.

    Administrative Reviews must be completed within ten (10) working days from when the request was received. The Administrative Review Checklist should be used by the Circuit Manager, OHI Unit Manager, or Regional Office designee to complete this step in the appeal process. A copy of the signed and dated form should be placed with the CA/N file at the completion of the Administrative Review.

    • 4.5.1.3.1 Administrative Review Reverses POE for Child Abuse or Neglect

      If the reviewer determines that the Division did not meet all of the elements of abuse and/or neglect by a POE, the preliminary determination must be reversed. The following should be completed within ten (10) business days:

      1. Update the Appeal screen with the appropriate determination.  Due to system's requirements, this step should be completed prior to updating the Individual Conclusion or Conclusion screens.
      2. Update the individual conclusion on the Individual Conclusion screen from "POE Preliminary Finding" to "POE Preliminary Finding-Pending Appeal" upon receipt of the alleged perpetrator's written request and verification of his or her eligibility to receive an Administrative Review.
      3. Upon completion of the Administrative Review, update the Appeal screen with the appropriate determination, and then change the CA/N Investigative conclusion in FACES.  Update the Individual Conclusion screen from "POE Preliminary Finding-Pending Appeal" to "Unsubstantiated" or "Unsubstantiated-Preventive Services Indicated" and delete worker findings and severity;
      4. Do not change the conclusion date on the Conclusion screen when a preliminary POE finding of child abuse or neglect has been reversed..  The system should reflect the conclusion date of the original finding of the investigation;
      5. Send out the Administrative Review Disposition Letter, CS-21D, to inform the alleged perpetrator that the Administrative Review has overturned the preliminary POE finding.
      6. File a copy of all notification letters in the case record; and
      7. Enter a summary in the CA/N Investigative record.

      Multiple Perpetrators with Different Findings - If there is more than one alleged perpetrator, the conclusion may still be "Preponderance of Evidence" involving the other alleged perpetrator.  In this situation, the CA/N Investigative record would not be destroyed.  However, if clarification is requested in addition to providing the CS-21D, staff should notify the person who requested the clarification that the Division no longer has a finding against them as an alleged perpetrator of CA/N by a POE (i.e., their name is not listed in the Central Registry with regard to the specific findings which have been reversed by Administrative Review).  There may be situations in which the Administrative Review reverses some, but not all, of the preliminary findings.  Staff should ensure that alleged perpetrators, the CANRB and others entitled to the information are made aware of the CA/N findings (i.e., physical abuse, sexual abuse, emotional abuse or neglect) which have been upheld and those which have been reversed by Administrative Review.

      FCS/AC Records Opened as a Result of POE Finding - If a Family-Centered Services record or alternative care record was opened as a result of this incident, the case record should be reviewed and any reference to a "Preponderance of Evidence" finding deleted.

      Notify Prosecuting/Circuit Attorney of Reversal - Circuit Manager/OHI Unit Manager, or Regional Office designee shall, upon request of the Prosecuting Attorney/Circuit Attorney, advise the Prosecuting Attorney/Circuit Attorney of the decision to reverse the preliminary finding if criminal proceedings are pending or underway against the alleged perpetrator following the completion of the administrative review process.

    • 4.5.1.3.2 Administrative Review Upholds POE of Child Abuse or Neglect

      If the reviewer determines that the Division did meet all of the elements of abuse and/or neglect by a POE, the preliminary finding must be upheld. The following should then be completed within ten (10) business days:

      1. Update the Appeals screen with the appropriate determination.
      2. Send out the Administrative Review Disposition Letter, CS-21D, to inform the alleged perpetrator that the Administrative Review has upheld the preliminary finding.
      3. File a copy of all notification letters in the CA/N Investigative record;
      4. Enter a summary in the CA/N Investigative record; and,
      5. Send request for review within ten (10) business days to the CANRB liaison at Central Office, with a copy of the investigation record, and all relevant materials. The record should not be redacted. The CPS-1 should be printed directly from FACES, and all documentation sent to the CANRB should reflect the information maintained by the local office and/or in FACES. The signed and dated Administrative Review Checklist should be forwarded to the CANRB liaison along with the CA/N Investigative record.

  • 4.5.1.4 Possible Scenarios of the Administrative Review Process

    The following are seven examples of situations which may result during the administrative review process.

    1. The alleged perpetrator does not request an Administrative Review within sixty (60) days from receiving the CS-21, and his or her name is placed on the Central Registry.

       If the alleged perpetrator failed to request an Administrative Review within the first sixty (60) days of the Division’s preliminary finding of child abuse or neglect by a POE, and there is no indication of pending criminal charges within that same sixty (60) day time period, then the alleged perpetrator no longer has a right to an Administrative Review. If the prosecuting attorney decides to file criminal charges beyond the initial sixty (60) day period allowed for requesting an Administrative Review, then alleged perpetrator has no right to an administrative review.

       If the alleged perpetrator allows the first sixty (60) days to expire and the prosecuting attorney has not filed criminal charges or a grand jury has not returned an indictment, the filing of charges subsequent to the sixty (60) days does not revive the "lost" right to an administrative review of the Division’s finding of child abuse or neglect by a POE.

    2. The alleged perpetrator does not request an Administrative Review within sixty (60) days from receiving the CS-21, but the Division has confirmed that criminal charges were pending within the first sixty (60) days from the alleged perpetrator receiving the CS-21.

       If the alleged perpetrator fails to request an Administrative Review within the first sixty (60) days, however, the Division establishes that there are pending criminal charges within the first sixty (60) days through the use of the CS-21F, the appeal process is suspended until:

       • The prosecuting attorney (circuit attorney) chooses to dismiss any charges they have filed; or
       • The pending criminal charges are resolved by court action.

       The Division shall not grant an Administrative Review until the pending criminal charges have been resolved either by dismissal or by court action. When there are pending felony criminal charges, the Division shall not provide any CA/N records requested by or on behalf of the alleged perpetrator until the pending felony criminal charges have been filed by the prosecutor (which is called "an information") or by a grand jury (which is called "an indictment"). Local protocols may be developed to review the status of pending criminal charges. However, while misdemeanor criminal charges are pending, under the Pitts case, the Division may still be required to release records to the perpetrator, if requested.

       Local protocols may be developed to review the status of pending criminal charges in addition to those outlined in this section.

       If the criminal court enters a finding that the alleged perpetrator has committed the act of child abuse and/or neglect, and the Division has confirmed through DLS that the matter has been court adjudicated, then the alleged perpetrator no longer has a right to an Administrative Review. Division staff shall list the finding as court adjudicated in FACES.

       The alleged perpetrator is entitled to the Administrative Review if:

       • No criminal charges are filed and/or pending;
       • The case is dismissed;
       • The alleged perpetrator is found not guilty; or
       • The alleged perpetrator is found guilty of a crime which does not meet the court adjudication standard for child abuse or neglect.

       The alleged perpetrator has sixty (60) days from the date of the prosecuting attorney’s decision to dismiss criminal charges, or the court’s final disposition or dismissal of criminal charges to request an administrative review. If there is a CANRB hearing and the CANRB reverses the determination, the unsubstantiated finding is a final determination. However, if the CANRB upholds the Division’s determination of child abuse or neglect by a POE, the alleged perpetrator has the right to appeal to Circuit Court for a De Novo trial.

    3. The alleged perpetrator requests an Administrative Review within sixty (60) days from receiving the CS-21, and the local Administrative Review reverses the POE.

       If the alleged perpetrator requests an Administrative Review within the first sixty (60) days and the preliminary finding is reversed, the investigation must reflect a determination of "Unsubstantiated" or "Unsubstantiated-Preventive Services Indicated". This is a final determination, which should be entered into FACES by the reviewer with a subsequent CS-21D being sent to the alleged perpetrator reflecting the reversal.

    4. The alleged perpetrator requests an Administrative Review within sixty (60) days from receiving the CS-21, and the local Administrative Review upholds the POE.

       If the alleged perpetrator requests an Administrative Review within the first sixty (60) days and the reviewer upholds the preliminary finding, the matter is forwarded on to the CANRB. The CANRB can reverse the finding, or uphold the finding. If the CANRB upholds the finding, the alleged perpetrator’s name is entered on the Central Registry by the CANRB. The alleged perpetrator then has the opportunity to accept the finding as a final determination, or may appeal the matter for a De Novo Judicial Review in Circuit Court which will result in a final determination.

    5. The alleged perpetrator requests an Administrative Review within sixty (60) days from receiving the CS-21, but the Division has confirmed that there are pending criminal charges.

       If the alleged perpetrator requests an Administrative Review within the first sixty (60) days and the Division establishes that there are criminal charges pending through the use of the CS-21F, the appeal process is suspended until:

       • The prosecuting attorney (circuit attorney) chooses to dismiss any criminal charges they have filed; or
       • The pending criminal charges are resolved by court action.

       The Division shall not grant an Administrative Review until the pending criminal charges have been resolved either by dismissal or by court action. When there are pending felony criminal charges, the Division shall not provide any CA/N records requested by or on behalf of the alleged perpetrator until the pending felony criminal charges have been filed by the prosecutor (which is called "an information") or by a grand jury (which is called "an indictment"). Local protocols may be developed to review the status of pending criminal charges. However, while misdemeanor criminal charges are pending, under the Pitts case, the Division may still be required to release records to the perpetrator, if requested.

       Local protocols may be developed to review the status of pending criminal charges in addition to those outlined in this section.

       If the criminal court enters a finding that the alleged perpetrator has committed the act of child abuse and/or neglect, and the Division has confirmed through DLS that the matter has been court adjudicated, then the alleged perpetrator no longer has a right to an Administrative Review. Division staff shall list the finding as court adjudicated in FACES.

       The alleged perpetrator is entitled to the Administrative Review if:

       • No criminal charges are filed;
       • The case is dismissed;
       • The alleged perpetrator is found not guilty; or
       • The alleged perpetrator is found guilty of a crime which does not meet the court adjudication standard for child abuse or neglect.

       The alleged perpetrator has sixty (60) days from the date that the criminal charges have been resolved by the court, either through prosecuting attorney’s decision to dismiss criminal charges, or the court’s final disposition or dismissal of criminal charges to request an Administrative Review. If there is a CANRB hearing and the CANRB reverses the determination, the unsubstantiated finding is a final determination. However, if the CANRB upholds the Division’s determination of child abuse or neglect by POE, the alleged perpetrator has the right to appeal to Circuit Court for a De Novo trial.

    6. The alleged perpetrator requests an Administrative Review within sixty (60) days from receiving the CS-21, but the Division has confirmed that the allegations have been court adjudicated.

       If the alleged perpetrator filed a timely request for an Administrative Review within sixty (60) days of the Division’s preliminary finding, but the Division establishes that the specific finding of child abuse or neglect by a POE has been court adjudicated, the alleged perpetrator has no right to an Administrative Review.

       However, if the court adjudicates something other than the Division’s specific finding of child abuse or neglect by a POE, then the alleged perpetrator would be entitled to an Administrative Review of the Division’s specific finding of child abuse or neglect by a POE. The alleged perpetrator is entitled to an Administrative Review of any of the Division’s specific findings of child abuse or neglect by a POE which have not been court adjudicated.

    7. The alleged perpetrator is, or was, a juvenile at the time of the POE finding.

       If the alleged perpetrator is a juvenile, or was a juvenile at the time of the Division’s preliminary finding, he or she shall be entitled to file for an administrative review at any time, unless the finding has been court adjudicated, or has otherwise exhausted the appeal process.

  • 4.5.1.5 Release of Records When There Are Pending Criminal Charges

    When an alleged perpetrator requests a release of records, the redacted records must be released, except in a very limited set of circumstances as described below:

    • An alleged perpetrator shall have access to appropriately redacted CA/N investigative records in the following situations under Sections 210.150.2(5) and 210.150.3(3) RSMo:

      • There is a pending criminal investigation but no formal criminal charges have been filed in court;
      • The alleged perpetrator has been indicted for a misdemeanor;
      • The alleged perpetrator has been charged with a misdemeanor by the filing of an information;
      • The alleged perpetrator has been charged with a felony by indictment; or,
      • The alleged perpetrator has been charged with a felony by the filing of a criminal complaint in court arising out of the facts and circumstances identified in the investigative records, and the felony complaint has resulted in an information after a preliminary hearing has been held or the alleged perpetrator has waived preliminary hearing and information and the case has been bound over for trial.

    • An alleged perpetrator shall not have access to hotline CA/N investigative records under Sections 210.150.2(5) and 210.150.3(3) RSMo in cases where the following applies:

      • The perpetrator has been formally charged with a felony by the filing of a criminal complaint in court arising out of the facts and circumstances identified in the investigative records; and,
      • The felony complaint has not yet resulted in an information after a preliminary hearing and the preliminary hearing has not been waived.
    • Division staff may still redact in appropriate cases:
      • Protected Health Information (PHI) as outlined in the Child Welfare Manual at Section 5 Chapter 2.7 Health Insurance Portability and Accountability Act (HIPAA);
      • The information which would identify a hotline reporter;
      • Any "identifying information" when the Division determines that a person’s life or safety may be in danger. The Division must document this decision with clearly stated facts that disclosure of identifying information would endanger a person’s life or safety; and,
      • Any other information which may be required to be redacted as provided by law.

Chapter Memoranda History: (prior to 1/31/07)

• CS03-46,
• CS03-51,
• CD04-69,
• CD04-79,
• CD04-89,
• CD05-35,
• CD05-40,
• CD05-50,
• CD05-51,
• CD05-68,
• CD05-72,
• CD06-09,
• CD06-15,
• CD06-34,
• CD06-67,
• CD06-78

Memoranda History:

• CD07-25,
• CD08-22,
• CD10-69,
• CD10-97,
• CD12-54