Section 8000
Introduction
These rules have been established to provide guidance
regarding the Child Protection Registry that reflects a designated child
protection level related to the risk of future harm to children.
The commissioner will maintain a child protection registry,
which will contain a record of all investigations that have resulted in a
substantiated report on or after January 1, 1992.
These rules establish:
1. A tiered child protection
registry.
2. Registry levels, based
on risk.
3. Documentation and
expungement.
The statutory authority for these regulations can be found at
33 V.S.A. § 4911-4916
Section 8001 Definitions
The following terms, defined in 33 V.S.A. Chapter 49 are used
in this section of rules:
1. "Child
Protection Registry" means a record of all investigations that have resulted in
a substantiated report on or after January 1, 1992.
2. "Emotional Maltreatment" means a pattern
of malicious behavior which results in impaired psychological growth and
development.
3. Redacted
Investigation File" means the intake report, the investigation activities
summary, and case determination report that are amended in accordance with
confidentiality requirements set forth in subsection 4913(d) of this
title.
4. "Registry Record" means
an entry in the child protection registry that consists of the name of an
individual substantiated for child abuse or neglect, the date of the finding,
the nature of the finding, and at least one other personal identifier, other
than a name, used order to avoid the possibility of
misidentification.
5. "Sexual
Abuse" consists of any act or acts by any person involving sexual molestation
or exploitation of a child including but not limited to incest, prostitution,
rape, sodomy, or any lewd and lascivious conduct involving a child. Sexual
abuse also includes the aiding, abetting, counseling, hiring, or procuring of a
child to perform or participate in any photograph, motion picture, exhibition,
show, representation, or other presentation which, in whole or in part, depicts
sexual conduct, sexual excitement or sadomasochistic abuse involving a
child.
6. "Substantial Child
Endangerment" means conduct by an adult involving or resulting in sexual abuse,
and conduct by a person responsible for a child's welfare involving or
resulting in abandonment, child fatality, malicious punishment, or abuse or
neglect that causes serious physical injury.
7. "Substantiated Report" means that the
commissioner or the commissioner's designee has determined after investigation
that a report is based upon accurate and reliable information that would lead a
reasonable person to believe that the child has been abused or neglected.
The following terms are not defined in statute but are used
in this section of rules:
8. "Administrative Review" means
reconsideration by an Administrative Reviewer of the Department's decision to
substantiate allegations of child abuse or neglect.
9. "Administrative Reviewer" means a neutral
and independent person contracted by the Department to conduct an
Administrative Review Conference.
10. "Administrative Review Conference" means
a meeting between the grievant, an administrative reviewer and whenever
possible a department employee for the purpose of reviewing the contents of the
redacted investigation file, the positions of the grievant and the department
in order to determine whether substantiation standards have been met under law
and policy. An administrative review conference may also be held to assess
whether the grievant has satisfied statutory expungement standards.
11. "Expungement" means the removal of a
person's name from the Child Protection Registry, following a meeting to
consider a person's petition to expunge or in compliance with a decision to
expunge by the Human Services Board or other legal authority.
12. "Grievant" means
a. Any person who, after investigation by the
Department, is determined to have abused or neglected a child and whose name
has already been entered into the Child Protection Registry or who has been
informed that the Department intends to place the grievant's name into the
Child Protection Registry.
b. Any
person who has petitioned for expungement from the Child Protection
Registry.
c. Any person who has
appealed to the Human Services Board for re-consideration of the department's
decision to place or maintain the person's name on the Child Protection
Registry.
13. "Overturn"
means the decision to rescind a substantiation determination - by an
Administrative Reviewer following an Administrative Review Conference or by the
Commissioner or designee.
14.
"Serious Physical Injury" means physical injury that is intentional or should
have been foreseen based on mechanism of injury that requires hospital
evaluation or admission. These injuries include but are not limited to:
-- Death
-- Shaken Baby Syndrome (also referred to as Sudden Impact
Syndrome, Abuse Head Trauma, etc)
-- Multiple Fractures
-- Internal Injury
-- Poisoning resulting in any type of injury
-- Central Nervous System (CNS) injury
-- Retinal Hemorrhages
-- Head or Brain Injury with or without fracture (e.g. brain
bleeding, brain bruising, subdural hematoma, etc)
-- Factitious Disorder by Proxy (previously referred to
as
-- Munchausen Syndrome by Proxy)
-- Designation as serious physical injury by pediatric
consultant or pediatric intensive care specialist
15. "Uphold" means the decision by an
Administrative Reviewer following an Administrative Review Conference to affirm
a substantiation determination.
Section 8002 Placement on the Child
Protection Registry
The following persons' names are contained in the child
protection registry:
1. All persons
found to be the subject of a substantiated report of child abuse or neglect on
or after January 1, 1992 and before September 1, 2007, unless that
substantiation has since been overturned or expunged.
2. All persons found to be the subject of a
substantiated report of child abuse or neglect after September 1, 2007 when no
administrative review was requested or whose substantiation was upheld after an
administrative review, unless that substantiation has since been overturned or
expunged.
3. The commissioner may
place the name of a person on the child protection registry pending an
independent review, if the person is alleged to have sexually abused or serious
physically abused a child. The commissioner may not delegate this authority.
The commissioner must review the investigation file and make written findings
regarding:
(i) The nature and seriousness of
the alleged behavior; and
(ii) the
person's continuing access to children.
4. Individuals with a substantiation not
upheld by independent review when, in exceptional circumstances, the
commissioner, in his or her sole and nondelegable discretion, reconsiders any
decision made by a review and determines that the case meets the standard for
substantiation. If the name of the person has been placed on the registry and
the substantiation is subsequently rejected after Human Services Board hearing,
the name shall be removed.
Section
8003 Child Protection Registry Record
A child protection registry record consists of:
1. The name and age of an individual
substantiated for abuse or neglect;
2. the date of the finding;
3. the nature of the finding; and
4. at least one other personal identified,
other than a name, listed in order to avoid the possibility of
misidentification.
And, for individuals placed on the Child Protection Registry
after July 1, 2009 :
5. A
designated child protection level related to the risk of future harm to
children.
Section 8004
Overview of Child Protection Registry Levels
All individuals placed on Child Protection Registry after
July 1, 2009 will have a designated child protection level related to the risk
of future harm to children.
The assignment of levels shall be based on an evaluation of
the risk the person responsible for the abuse or neglect poses to the safety of
children and shall include, but are not limited to, consideration of the
following factors:
1. The nature of
the conduct and the extent of the child's injury, if any;
2. the persons prior history of child abuse
or neglect as either a victim or perpetrator;
3. any adjudication in criminal court or
family court findings as outlined in section entitled "Criteria for Level
Assignment";
4. the person's
response to the investigation, acceptance of responsibility for the conduct,
ability and willingness to engage in recommended services; and,
5. any prior termination of parental
rights
Section 8005
Criteria for Level Assignment
The child protection registry assigns two levels that reflect
on an identification of risk of future harm to children. The levels apply to
substantiated perpetrators of all ages:
1. A substantiation of a person responsible
for a child's welfare will be assigned to Level 1 if it:
a. involves substantial child
endangerment;
b. there are court
adjudications for related conduct; or
c. there is a high risk of future harm based
on the assessment of risk.
2. All other substantiations will be assigned
to Level 2.
Section 8006
Assessment of Risk
Substantiations meeting the criteria for Level 1 will
automatically be placed on that level. For other substantiations, risk will be
assessed using the Family Risk Assessment or another validated risk assessment
tool.
The following factors will also enter into the assessment of
risk:
1. The person's response to the
investigation, acceptance of responsibility for the conduct, ability and
willingness to engage in recommended services;
2. the person's prior history of child abuse
or neglect as either a victim or perpetrator;
3. the nature of the conduct and the extent
of the child's injury, if any; and,
4. the person's age (adult or juvenile) and
developmental maturity, as those factors relate to the individual's ability to
take responsibility for behavior and to govern his or her future behavior. In
assessing these factors the department will, when requested by an individual
who identifies themselves as having a disability, seek consultation from
individuals with relevant expertise.
Section 8007 Retention and Expungement of
Registry Records
8007.01 Level 1
A level system is established as of July 1, 2009
A Level 1 designation shall be documented and remain on the
Child Protection Registry permanently, unless expunged under the provisions of
33 VSA §
4916a, § 4916b, § 4916c, or §
4916d.
There is no automatic expungement for Level 1
substantiations. Individuals placed on Level 1 may apply for expungement on the
basis of rehabilitation when the following conditions have been met:
1. Persons whose name was placed on the
registry for behavior occurring on or after the person reached the age of 18:
a. A person whose name was placed on the
Registry before July 1, 2009 may apply for expungement after 3 years.
b. A person whose name was placed on the
Registry on or after July 1, 2009 may apply for expungement after 7
years.
2. Persons whose
name was placed on the registry for behavior occurring before the person
reached the age of 18 may apply for expungement after 3 years.
8007.02 Level 2
A Level 2 designation shall be documented and remain on the
Child Protection Registry, unless expunged under the provisions of
33 VSA §
4916a, § 4916b, § 4916c, or §
4916d.
Individuals placed on Level 2 may apply for expungement on
the basis of rehabilitation when three years has elapsed since the date of
substantiation.
Section
8008 Applicability of Levels for Individuals Who Apply for
Expungement after July 1, 2009
For individuals who are eligible to apply for expungement
after July 1, 2009, the department may expunge the individual's name without
holding a review hearing if the documentation contained in the record indicate
that, the substantiation would not meet current criteria for investigation or
substantiation.
Nothing in this subsection shall give an individual the right
to automatic expungement under these circumstances.
