PROPOSED RULES
SOCIAL AND HEALTH SERVICES
Original Notice.
Preproposal statement of inquiry was filed as WSR 99-17-054.
Title of Rule: Chapter 388-15 WAC, Child protective services.
Purpose: To rewrite current rules in a clear writing format, to comply with Executive Order 97-02 and to repeal outdated rules.
Statutory Authority for Adoption: RCW 74.13.031.
Statute Being Implemented: Chapters 26.44 and 74.13 RCW.
Summary: Rewrite rules in clear format, to update requirements, to include client right of review, and repeal outdated rules.
Reasons Supporting Proposal: The rules are updated to reflect current federal and state law and regulation and to comply with Executive Order 97-02.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Stephanie J. Sarber, P.O. Box 45710, Olympia, WA 98504-5710, (360) 902-7563.
Name of Proponent: Department of Social and Health Services, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The rules recodify existing rules in new sections, restate the rules in clear writing format and update existing rules to reflect current state and federal law and refulation. The adopted rules will provide clear, concise answers to persons seeking information regarding child protective services.
Proposal Changes the Following Existing Rules: New rules outline the child protective services (CPS) notification process for alleged perpetrators of child abuse or neglect investigative findings. New rules will also outline the procedures, review process, and administrative hearings process regarding the appeal of substantiated CPS investigative findings of child abuse or neglect.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Children's Administration has analyzed the proposed WAC changes and concludes that no new costs will be imposed on the small businesses impacted by these WACs. Preparation of a small business economic impact statement is not required.
RCW 34.05.328 does not apply to this rule adoption. The proposal clarifies language of existing rules without changing effect. See RCW 34.05.328 (5)(b)(iv).
Hearing Location: Office Building 2 (OB-2), 14th and Jefferson, Olympia, Washington 98504, on March 12, 2002, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by March 8, 2002, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernaax@dshs.wa.gov.
Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, e-mail fernaax@dshs.wa.gov, by 5:00 p.m., March 12, 2002.
Date of Intended Adoption: Not earlier than March 13, 2002.
January 17, 2002
Bonnie H. Jacques
for Brian H. Lindgren, Manager
Rules and Policies Assistance Unit
3001.4((SOCIAL)) CHILD PROTECTIVE SERVICES ((FOR FAMILIES, CHILDREN AND
ADULTS))
(2) CPS may include the following:
(a) Investigation of reports of alleged child abuse or neglect.
(b) Assessment of risk of abuse or neglect to children.
(c) Provision of and/or referral to services to remedy conditions that endanger the health, safety, and welfare of children.
(d) Referral to law enforcement when there are allegations that a crime against a child (RCW 26.44.030(4) and 74.13.031(3)) might have been committed.
(e) Out of home placement and petitions to courts when necessary to ensure the safety of children.
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"Abuse or neglect" means the injury, sexual abuse, sexual exploitation, negligent treatment, or maltreatment of a child as defined in RCW 26.44.020 and this chapter.
"Administrative hearing" means a hearing held before an administrative law judge and conducted according to chapter 34.05 RCW and chapter 388-02 WAC.
"Administrative law judge (ALJ)" is an attorney and an impartial decision-maker who presides at an administrative hearing. The office of administrative hearings, which is a state agency, employs the ALJs.
"Alleged perpetrator" means the person identified in a CPS referral as being responsible for the alleged child abuse or neglect.
"Alternative response system" means a contracted provider in a local community that responds to accepted CPS referrals that are rated low or moderately low risk at the time of intake.
"Appellant" means a person who requests an administrative hearing to appeal a CPS finding.
"Child protection team (CPT)" means a multi-disciplinary group of persons with at least four persons from professions that provide services to abused or neglected children and/or parents of such children. The CPT provides confidential case staffing and consultation to children's administration.
"Child protective services (CPS)" means the section of the children's administration responsible for responding to allegations of child abuse or neglect.
"Children's administration (CA)" means the cluster of programs within DSHS that is responsible for the provision of child protective, child welfare, foster care licensing, group care licensing, and other services to children and their families.
"Department" or "DSHS" means the Washington state department of social and health services.
"Divisions of child care and early learning (DCCEL)" means the division of economic services responsible for licensing child care homes and child care facilities.
"Division of children and family services (DCFS)" means the division of children's administration that provides child protective, child welfare, and support services to children and their families.
"Division of licensed resources (DLR)" means the division of children's administration responsible for licensing group care and foster care facilities, and responding to allegations of abuse or neglect in such facilities.
"Finding" means the final decision made by a CPS social worker after an investigation regarding alleged child abuse or neglect.
"Founded" means the determination following an investigation by CPS that based on available information it is more likely than not that child abuse or neglect did occur.
"Inconclusive" means the determination following an investigation by CPS that based on available information a decision cannot be made that more likely than not, child abuse or neglect did or did not occur.
"Mandated reporter" means a person required to report alleged child abuse or neglect as defined in RCW 26.44.030.
"Preponderance of evidence" means the evidence presented in a hearing indicates more likely than not child abuse or neglect did occur.
"Unfounded" means the determination following an investigation by CPS that based on available information it is more likely than not that child abuse or neglect did not occur.
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(1) Physical abuse means the nonaccidental infliction of physical injury or physical mistreatment on a child. Physical abuse includes, but is not limited to, such actions as:
(a) Throwing, kicking, burning, or cutting a child;
(b) Striking a child with a closed fist;
(c) Shaking a child under age three;
(d) Interfering with a child's breathing;
(e) Threatening a child with a deadly weapon;
(f) Doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks or which is injurious to the child's health, welfare and safety.
(2) Physical discipline of a child, including the reasonable use of corporal punishment, is not considered abuse when it is reasonable and moderate and is inflicted by a parent or guardian for the purposes of restraining or correcting the child. The age, size, and condition of the child, and the location of any inflicted injury shall be considered in determining whether the bodily harm is reasonable or moderate. Other factors may include the developmental level of the child and the nature of the child's misconduct. A parent's belief that it is necessary to punish a child does not justify or permit the use of excessive, immoderate or unreasonable force against the child.
(3) Sexual abuse means committing or allowing to be committed any sexual offense against a child as defined in the criminal code. The intentional touching, either directly or through the clothing, the sexual or other intimate parts of a child or allowing, permitting, compelling, encouraging, aiding, or otherwise causing a child to engage in touching the sexual or other intimate parts of another for the purpose of gratifying the sexual desire of the person touching the child, the child, or a third party. A parent or guardian of a child, a person authorized by the parent or guardian to provide childcare for the child, or a person providing medically recognized services for the child, may touch a child in the sexual or other intimate parts for the purposes of providing hygiene, child care, and medical treatment or diagnosis.
(4) Sexual exploitation includes, but is not limited to, such actions as allowing, permitting, compelling, encouraging, aiding, or otherwise causing a child to engage in:
(a) Prostitution;
(b) Sexually explicit, obscene or pornographic activity to be photographed, filmed, or electronically reproduced or transmitted; or
(c) Sexually explicit, obscene or pornographic activity as part of a live performance, or for the benefit or sexual gratification of another person.
(5) Negligent treatment or maltreatment means an act, a failure to act, or a pattern of behavior on the part of a child's parent or guardian that shows a serious disregard of the consequences to the child of such magnitude that it creates a clear and present danger to the child's health, welfare, and safety. A child does not have to suffer actual damage or physical or emotional harm to be in circumstances which create a clear and present danger to the child's health, welfare, and safety. Negligent treatment or maltreatment includes, but is not limited, to:
(a) Failure to provide adequate food, shelter, clothing, supervision, or health care necessary for a child's health, welfare, and safety. Poverty and/or homelessness do not constitute negligent treatment or maltreatment in and of themselves;
(b) Actions, failures to act or omissions, or patterns of behavior that result in injury to or which create a substantial risk of injury to the physical, emotional, and/or cognitive development of a child; or
(c) The cumulative effects of consistent inaction or behavior by a parent or guardian in providing for the physical, emotional and developmental needs of a child's, or the effects of chronic failure on the part of a parent or guardian to perform basic parental functions, obligations, and duties, when the result is to cause injury or create a substantial risk of injury to the physical, emotional, and/or cognitive development of a child.
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(a) Deserts the child in any manner whatever with the intent to abandon the child;
(b) Leaves a child without the means or ability to obtain one or more of the basic necessities of life such as food, water, shelter, clothing, hygiene, and medically necessary health care; or
(c) Forgoes for an extended period of time parental rights, functions, duties and obligations despite an ability to exercise such rights, duties, and obligations.
(2) Abandonment of a child by a parent may be established by conduct on the part of a parent or guardian that demonstrates a substantial lack of regard for the rights, duties, and obligations of the parent or guardian or for the health, welfare, and safety of the child. Criminal activity or incarceration of a parent or guardian does not constitute abandonment in and of themselves, but a pattern of criminal activity or repeated or long-term incarceration may constitute abandonment of a child.
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(1) By a parent, legal custodian, or guardian of the child; or
(2) In a DSHS licensed, certified, or state-operated facility; or
(3) By persons or agencies subject to licensing under chapter 74.15 RCW, including individuals employed by or volunteers of such facilities.
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(2) CPS must determine whether alleged incidents or conditions meet the definitions of child abuse or neglect in this chapter or in chapter 26.44 RCW.
(3) CPS must conduct an investigation or assessment of all reports of alleged child abuse or neglect that meet the definitions of child abuse or neglect contained in this chapter or in chapter 26.44 RCW.
(4) CPS must investigate anonymous reports only as provided in RCW 26.44.030(15).
(5) CPS must maintain a record of reports received that are not investigated because they do not meet the definitions of child abuse or neglect as defined in RCW or this chapter.
(6) CPS must report to law enforcement per RCW 26.44.030(4) and 74.13.031.
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(2) CPS must begin an investigation within twenty-four hours of receipt of a report alleging child abuse or neglect in which a child is alleged to be at risk of serious and immediate harm. Based upon information contained in the report and any collateral contacts the children's administration intake worker makes the assessment of risk of serious and immediate harm.
(3) CPS must provide an in-person response to alleged victims and must attempt an in-person response to the alleged perpetrator of child abuse and neglect in referrals assessed at moderate to high risk.
(4) CPS may refer reports assessed at low to moderately low risk to an alternative response system.
(5) CPS may interview a child, outside the presence of the parent, without prior parental notification or consent as outlined under RCW 26.44.030(10).
(6) Unless the child objects, CPS must make reasonable efforts to have a third party present at the interview so long as the third party does not jeopardize the investigation (see RCW 26.44.030).
(7) CPS may photograph the alleged child victim to document the physical condition of the child (see RCW 26.44.050).
(8) CPS must establish in procedure, timelines for the completion of investigations and standards for written findings.
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(2) The DCFS social worker shall document in case records efforts to keep Indian families together and to avoid separating the Indian child from his parents, relatives, tribe or cultural heritage as per RCW 26.44.010 and WAC 388-70-093.
(3) In alleged child abuse and neglect situations, the DCFS social worker shall document in case records, efforts to utilize staff and services particularly capable of meeting the special needs of Indian children and their families, in consultation with the child's tribe and/or local Indian child welfare advisory committee per WAC 388-70-600 through 388-70-640.
(4) The DCFS social worker shall promptly advise the tribal council and the local Indian child welfare advisory committee that a child affiliated with the tribe is the victim of substantiated child abuse or neglect. The provisions of RCW 26.44.070, WAC 377-70-640, limiting who has access to confidential information, shall be followed in all cases.
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(2) When CPS receives a report of alleged child abuse or neglect, mandated reporters, as identified in RCW 26.44.030, and their employees must provide upon request by CPS, all relevant records in their possession related to the child (see RCW 26.44.030).
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(2) CPS may involve local community resources in the planning and provision of services to help remedy conditions that contribute to the abuse or neglect of children.
(3) CPS must have community based child protective teams (CPT) available for staffing and consultation regarding cases of child abuse or neglect. CPS must present cases for staffing with the CPT in accordance with executive order 95-04 and department procedures.
(4) There are special requirements for staffing Indian children cases with the local Indian child welfare advisory committee (see WAC 388-70-600).
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(a) A court order directing that the child be placed in out-of-home care (RCW 13.34.050); or
(b) A law enforcement officer placing the child in protective custody (RCW 26.44.050); or
(c) A physician or hospital administrator detaining a child and CPS assuming custody until a court hearing is held (RCW 26.44.056); or
(d) A voluntary placement agreement signed by the child's parent, guardian, or legal custodian. Voluntary placements of Indian children must comply with RCW 13.34.245.
(2) CPS must attempt to place the child with a relative willing and available to care for the child, unless there is reasonable cause to believe that the health, safety or welfare of the child would be jeopardized or that efforts to reunite the parent and child will be hindered (see RCW 13.34.060). If a relative appears suitable and competent with good character to provide adequate care, the background check and home study of a relative may be completed as soon as possible after the child is placed (see RCW 74.15.030).
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(1) CPS must file a dependency petition with the juvenile court when a child is to remain in out of home care beyond seventy-two hours (excluding Saturdays, Sundays, and holidays) unless the child's parent or legal custodian signs a voluntary placement agreement.
(2) CPS must make reasonable efforts to notify both parents, guardians, and any legal custodian(s) that a dependency petition has been filed. The notice must inform these parties of the date, time, and location of the initial shelter care hearing and of the parent(s) and any legal custodian's legal rights. If the court has entered an order for the out-of-home placement of the child, a hearing shall be held within seventy-two hours, excluding Saturdays, Sundays, and holidays.
(3) Whenever CPS assumes custody of a child from law enforcement, and places the child in out of home care, a court hearing must be held within seventy-two hours from the time the child is taken into protective custody, excluding Saturdays, Sundays and holidays.
(4) Whenever CPS assumes custody from a physician or a hospital administrator and places the child in out-of-home care, a court hearing must be held within seventy-two hours from the time CPS assumes custody of the child, excluding Saturdays, Sundays, and holidays.
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(1) CPS is investigating a report alleging an act or acts of child abuse or neglect, and:
(a) The child is alleged to be the victim; and/or
(b) CPS interviews a child in relation to an alleged act of child abuse or neglect.
(2) CPS takes a child into custody pursuant to a court order issued under RCW 13.34.050.
(3) CPS receives custody of a child from law enforcement pursuant to RCW 26.44.050.
(4) CPS files a dependency petition.
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(1) Notify the person or persons legally responsible for the child of the address of the office where the case record information will be on file; and
(2) Give the person or persons legally responsible for the child the opportunity to read or obtain relevant parts of the case record, provided the person or persons have requested access to the information and the law does not otherwise prohibit such access (RCW 13.40.100).
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PART B -- NOTIFICATION AND APPEAL OF FINDINGS(1) The procedures for notifying the alleged perpetrator of any findings made by a CPS social worker in an investigation of suspected child abuse or neglect; and
(2) The process for challenging a founded CPS finding of child abuse or neglect (see RCW 26.44.100 and 26.44.125).
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(2) In cases where certified mailing may not be either possible or advisable, the CPS social worker may personally deliver the CPS finding notice to the alleged perpetrator.
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(1) The alleged perpetrator may submit to CPS a written response regarding the CPS finding. If a response is submitted, CPS must file this response in the department's records.
(2) Information in the department's records may be considered in later investigations or proceedings relating to child protection or child custody.
(3) Founded CPS findings may be considered in determining:
(a) If an alleged perpetrator is qualified to be licensed to care for children or vulnerable adults;
(b) If an alleged perpetrator is qualified to be employed by a child care agency;
(c) If an alleged perpetrator may be authorized or funded by the department to provide care or services to children or vulnerable adults.
(4) The alleged perpetrator's right to challenge a founded CPS finding.
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(2) According to RCW 26.44.020(19) no unfounded allegation of child abuse or neglect may be disclosed to a child placing agency, private adoption agency, or any other provider licensed under chapter 74.15 RCW.
(3) According to RCW 26.44.031, at the end of six years from the date of the report, the department must remove the unfounded finding from the department's records unless an additional child abuse and/or neglect report has been received regarding the same perpetrator or same family during those six years.
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(2) The request must be provided to the same CPS office that sent the CPS finding notice within twenty calendar days from the date the alleged perpetrator receives the CPS finding notice.
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(2) If an alleged perpetrator is unavailable to receive notice of the CPS finding when CPS sends the notice by certified mail to the alleged perpetrator's last known address, the alleged perpetrator shall not have further opportunity to request a review of the finding beyond thirty days from the time the notice is sent.
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(a) CPS records;
(b) CPS summary reports; and
(c) Any written information the alleged perpetrator may have submitted regarding the founded CPS finding of abuse and/or neglect.
(2) Management staff may also meet with the CPS social worker and/or CPS supervisor to discuss the investigation/finding. After review of all this information, management staff decides if the founded CPS finding is correct or if it should be changed.
(3) Management staff must complete their review of the founded CPS finding within sixty calendar days from the date CPS received the written request for review.
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(2) The request for a hearing must be in writing and sent to the following address:
Office of Administrative Hearings
P.O. Box 2465
Olympia, WA 98504
(3) The office of administrative hearings must receive the written request for a hearing within thirty days from the date that the person requesting the hearing receives the CPS management review decision. The notice of the CPS management review decision will also contain information regarding how to request a hearing.
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(2) The ALJ must consider any superior court dependency findings and order relating to the alleged abuse or neglect.
(3) If the superior court has entered findings that the alleged perpetrator was the person responsible for the alleged child abuse or neglect, the ALJ must uphold the CPS finding. The ALJ must reiterate the court ruling and incorporate that ruling in the decision issued by the ALJ.
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(a) If compelling reasons exist to have the child testify. If compelling reasons do exist, the ALJ must consider alternative methods to in-person testimony by the child. Such methods may include, but are not limited to, having the child testify by telephone or videotape; or
(b) If the rights of a party (either the appellant or DSHS) would be prejudiced by not having the child testify in person. If a party's rights would be prejudiced, the ALJ must consider other methods to hear the child's testimony without having the child directly confront the alleged perpetrator.
(2) If the child does testify at the hearing, the ALJ must include a written finding in the administrative hearing decision regarding the compelling reasons for the child's testimony and what alternative methods to in-person testimony the ALJ considered.
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(1) Decisions regarding the placement of the alleged abused or neglected child;
(2) Risk assessments in making placement decisions regarding the alleged abused and/or neglected child; or
(3) Service plans for the alleged perpetrator and/or alleged abused or neglected child.
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(2) If the ALJ determines that a preponderance of all the relevant information supports the founded CPS finding, the ALJ must uphold the finding.
(3) If the ALJ determines that the founded CPS finding is not supported by a preponderance of all the relevant information, the ALJ must remand the matter to the department for a change of the finding consistent with the ruling of the ALJ.
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The following sections of the Washington Administrative Code are repealed:
| WAC 388-15-130 | Child protective services -- Authority. |
| WAC 388-15-131 | Child protective services -- Special requirements for Indian children. |
| WAC 388-15-132 | Child protective services -- Acceptance of reports -- Eligibility for services and limits to authority. |
| WAC 388-15-134 | Child protective services -- Notification. |