12 CCR 2509-2-7.111 - STATE LEVEL APPEAL PROCESS
A. Persons
found responsible for an incident of child abuse or neglect by the county
department shall have the right to a state level appeal to contest the finding.
The request for appeal of the decision shall first be submitted to the State
Department unit designated to handle such appeals. If the State Department and
the Appellant are unable or unwilling to resolve the appeal in accordance with
the provisions set forth below in this section, the State Department shall
forward the appeal to the Office of Administrative Courts (OAC) to proceed to a
fair hearing before an Administrative Law Judge (ALJ).
B. The grounds for appeal shall consist of
the following:
1. The findings are not
supported by a preponderance of credible evidence; or,
2. The actions ultimately found to be abusive
or neglectful do not meet the statutory or regulatory definitions of child
abuse or neglect.
C. The
person found to be responsible for child abuse or neglect shall have ninety
(90) calendar days from the date of the notice of founded finding to appeal the
finding in writing to the State Department. The written appeal shall be
submitted on the State approved form provided by the county and shall include:
1. The contact information for the
Appellant;
2. A statement detailing
the basis for the appeal; and,
3.
The county department notice of finding of responsibility for child abuse or
neglect.
D. The state
level appeal process must be initiated by the person responsible for child
abuse or neglect or his/her legal representative. The Appellant need not hire
an attorney to appeal the county determination. If the individual is a minor
child, the appeal may be initiated by his/her parents, legal custodian, or
legal representative.
E. The appeal
must be submitted to the State Department within ninety (90) calendar days of
the date of the notice of founded finding. If the appeal is filed more than
ninety (90) calendar days from the date of the notice of founded finding, the
Appellant must show good cause for not appealing within the prescribed period
as set forth in Section 7.000.2, A. Failure to request State review within this
ninety-day (90) period without good cause shall be grounds for the State
Department to not accept the appeal.
F. The founded finding shall be utilized for
safety and risk assessment, employment, and background screening by the State
Department while the administrative appeal process is pending.
G. The Appellant shall have the right to
appeal even if a dependency and neglect action or a criminal prosecution for
child abuse is pending arising out of the same report. The State Department
shall hold in abeyance the administrative process pending the outcome of the
dependency and neglect or criminal action if requested by the Appellant or if
the State Department determines that awaiting the outcome of the court case is
in the best interest of the parties. If the Appellant objects to the
continuance, the continuance shall not exceed one hundred eighty (180) days
without the Appellant having the opportunity to seek review of the extended
continuance by an Administrative Law Judge. The pendency of other court
proceeding(s) shall be considered to be good cause to continue the appeal past
the one hundred eighty (180) day timeframe.
H. The following circumstances shall be
considered to be admissions to the factual basis of the finding of
responsibility for child abuse or neglect entered into the state automated case
management system and shall be considered to be conclusive evidence of the
person's responsibility for child abuse or neglect to support a motion for
summary judgment submitted to the Office of Administrative Courts:
1. When a Dependency and Neglect Petition has
been adjudicated against or a deferred adjudication entered against the
Appellant on the basis of Sections
19-3-103 or
19-3-102(1)(a), (b), or
(c), C.R.S., arising out of the same factual
basis as the founded finding in the state automated case management
system;
2. The Appellant has been
found guilty of child abuse, or has pled guilty or nolo contendere to child
abuse as part of any plea agreement including, but not limited to, a deferred
judgment agreement, arising out of the same factual basis as the founded
finding in the state automated case management system; or,
3. The Appellant has been found guilty or has
pled guilty or nolo contendere to a domestic violence related or alcohol
traffic related offense arising out of the same factual basis as the founded
report in the state automated case management system.
I. When an Appellant requests an appeal, the
State Department shall request the records relied upon in making the finding
from the county department responsible for entering the finding, which has been
appealed. The county department shall submit the record to the State Department
as soon as practicable within the time frame requested by the
Department.
J. After the Appellant
requests an appeal, the State Department shall inform the Appellant regarding
the details of the appeal process, including timeframes and contact
information.
1. The Appellant, as the party
in interest, shall have access to the county record in order to proceed with
the appeal. Appellant's use of the county file for any other purpose is
prohibited unless otherwise authorized by law.
2. Prior to providing access to the
Appellant, the State Department shall redact identifying information contained
in the county file to comply with state and federal law regarding the
confidentiality of child abuse or neglect records or other protected
information including, but not limited to, reporting party name(s) and
addresses, Social Security Number, foster parent identifying information, and
information pertaining to other parties in the case that the appellant does not
have a legal right to access.
K. The State Department is authorized to
enter into settlement negotiations with the Appellant as part of the litigation
process. The State Department is authorized to enter into settlement agreements
that modify, overturn or expunge the reports as reflected in the state portion
of the state automated case management system. The State Department is not
authorized to make any changes in the county portion of the state automated
case management system. In exercising its discretion, the State Department
shall take into consideration the best interests of children, the weight of the
evidence, the severity of the abuse or neglect, any pattern of abuse or neglect
reflected in the record, the results of any local court processes, the
rehabilitation of the Appellant, and any other pertinent information.
L. The State Department and the Appellant
shall have one hundred twenty (120) days from the date that the State
Department receives the appeal to resolve the issue(s) on appeal. The 120 day
time limit may be extended by agreement of both the Appellant and the State
Department if it is likely that the additional time will result in a fully
executed settlement agreement or resolution of the appeal.
M. As soon as it is evident within the 120
days that the Appellant and the State Department will not resolve the issue(s)
on appeal, the State Department shall forward a copy of the Appellant's
original appeal document(s) to the Office of Administrative Courts in order to
initiate the Office of Administrative Courts fair hearing process.
N. If, by the end of the 120 day period, the
State Department has been unable to contact the Appellant using the information
submitted by the Appellant, including by first class mail, and the Appellant
has not contacted the State Department, the appeal shall be deemed abandoned.
The finding entered by the county department shall be upheld in the state
automated case management system without further right of appeal. The State
Department shall notify the Appellant of this result by first class mail to the
address submitted by the Appellant.
Notes
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