Mo. Code Regs. tit. 13 § 35-31.025
Current through Register Vol. 49, No. 8, April 15, 2024
Section 13 CSR 35-31.025 - Child Abuse and Neglect Review ProcessPURPOSE: This amendment removes outdated information and clarifies the Child Abuse and Neglect Review Board (CANRB) process.
PURPOSE: This rule establishes a process to review child abuse and neglect determinations when an alleged perpetrator disagrees with the division's preliminary finding.
(1) Definitions. (A) The definitions of terms set forth in section 210.110, RSMo, and 13 CSR 35-31.010 also apply to the terms used in this regulation.(B) "Address of Record" means the mailing address or electronic mailing address that the alleged perpetrator provides to the Children's Division or the last known address of the alleged perpetrator discovered during the investigation or last known address contained in the information systems of the Department of Social Services.(C) "Alleged perpetrator" means the person accused of having committed the act of abuse or neglect, or the person determined or found to have perpetrated the act of abuse or neglect.(D) "CANRB" or "Board" means the child abuse and neglect review board as established in sections 210.152 and 210.153, RSMo.(E) "Court adjudication" refers to instances where the division may add a person to the central registry without administrative review because a court has found the person- 1. Committed child abuse or neglect;2. Judicial findings substantiate the division's finding of child abuse or neglect; or3. The person has pleaded guilty or been found guilty of a crime pursuant to sections 210.110 or 210.118, RSMo.(F) "Division" means the Children's Division of the Department of Social Services.(G) "Pending criminal charge" means a criminal charge filed with the court by complaint, information, or indictment.(H) "Preliminary finding" means the division's initial investigative determination of abuse or neglect.(I) "Unknown perpetrator" means the unidentified person or persons who abused or neglected a child.(J) "Witness" means a person with knowledge material to the allegation of abuse or neglect.(2) Notices. (A) The division shall notify the alleged perpetrator of its preliminary finding at the conclusion of the child abuse or neglect investigation.(B) The notice shall-1. Summarize the division's preliminary findings;2. Provide instructions for obtaining a copy of the investigative report; and3. State the alleged perpetrator's right to either request administrative review of the division's finding by the board, or, in the alternative, waive administrative review and instead file a petition in circuit court for direct judicial review of the division's finding.(C) The division may deliver notice of the preliminary finding personally or send the notice to the alleged perpetrator's Address of Record. Service of notice to the alleged perpetrator's Address of Record in person, by mail, or by electronic means shall be deemed sufficient service for all purposes under this regulation.(D) The alleged perpetrator shall promptly notify the division of any changes to the alleged perpetrator's mailing address, telephone number, electronic mailing address, or other contact information throughout the investigation and administrative review process.1. It shall remain the responsibility of the alleged perpetrator to immediately notify the division of any changes to his or her current contact information, including current mailing address, throughout the investigation and administrative review process.2. The alleged perpetrator may elect to receive formal notices and communications electronically or by mail. Notification of the election shall be in writing and provided to the division.(E) If the alleged perpetrator requests an administrative review under section (3) of this rule, the division and board shall send all notices and correspondence to the alleged perpetrator unless the division receives a written entry of appearance by counsel. Legal counsel for an alleged perpetrator shall file an entry of appearance with the board, which shall include the legal counsel's name, bar number, regular and electronic mailing addresses, and telephone and fax numbers. Upon receipt of an entry of appearance by legal counsel, the division shall send any subsequent notices and correspondence to the alleged perpetrator and the attorney of record. Alleged perpetrators may present their cases to the board with or without legal counsel.(3) Requesting Administrative Review or Judicial Review. If the alleged perpetrator disagrees with the division's preliminary finding, the alleged perpetrator may request either direct judicial review or administrative review of the finding, but not both. (A) Direct Judicial Review Requests. 1. If the alleged perpetrator wishes to waive administrative review, the alleged perpetrator shall have thirty (30) days from the receipt of the notification of the division's preliminary finding to file a petition for direct judicial review with the circuit court as provided in sections 210.152, 210.153, and 536.100, RSMo. Upon receipt of service of the petition for direct judicial review, the division shall list the alleged perpetrator's name in the central registry pending further orders or judgment of the circuit court. The alleged perpetrator shall not be entitled to administrative review if the alleged perpetrator has petitioned any circuit court for direct judicial review.(B) Administrative Review Requests. 1. To request administrative review, the alleged perpetrator shall submit a written request for review within sixty (60) days from the receipt of the notification of the division's preliminary finding as provided in sections 210.152 and 210.153, RSMo, except as otherwise provided herein. The alleged perpetrator may include any additional relevant information that the alleged perpetrator would like the division or board to consider. A. Upon receipt of a timely written request for administrative review, the division may review the request, the investigative report, and any other relevant materials before the board hearing. If the division concludes the preliminary finding should be reversed before the board hearing, the division shall notify the alleged perpetrator and the alleged perpetrator shall not be listed in the central registry for that finding.B. If the division receives a request for administrative review within sixty (60) days of notification of the division's preliminary finding, the division shall not list the alleged perpetrator as a perpetrator of child abuse or neglect in the central registry for the preliminary finding unless and until the finding is sustained by the board.C. If the division does not receive a request for administrative review within sixty (60) days of notification of the division's preliminary finding, the division shall list the alleged perpetrator as a perpetrator of child abuse or neglect in the central registry.2. Pending Criminal Charges.A. If criminal charges that arose from the investigation are pending when the alleged perpetrator receives notice of the division's preliminary finding, the alleged perpetrator may either-(I) Request administrative review within sixty (60) days of receiving notice of the division's preliminary finding; or(II) In the alternative, the alleged perpetrator may waive administrative review within sixty (60) days of notice and instead request administrative review within sixty (60) days of the court's final disposition or dismissal of the criminal charges, as provided for in this subsection and section 210.152.4, RSMo.B. If the alleged perpetrator with pending criminal charges submits a request within sixty (60) days of notification of the division's preliminary finding, the division shall proceed with the administrative review and the division shall not list the alleged perpetrator in the central registry unless and until the finding is sustained by the board.C. If the alleged perpetrator with pending criminal charges does not request review within sixty (60) days of notification of the division's preliminary finding, the division shall list the alleged perpetrator as a perpetrator of child abuse or neglect in the central registry, and the alleged perpetrator shall remain listed in the central registry unless and until the division's finding is subsequently reversed by the division, the board, or judicial action.D. To request administrative review within sixty (60) days of the court's final disposition or dismissal of criminal charges arising from the investigation, the alleged perpetrator shall submit a copy of the court's final disposition or dismissal of the criminal charges with the written request for administrative review. If the division receives the written request and the copy of the court's final disposition or dismissal of the criminal charges within sixty (60) days of the court's final disposition or the dismissal, the division shall schedule a board hearing. Once listed, the alleged perpetrator shall remain listed in the central registry unless and until the division's finding is subsequently reversed by the division, boards, or judicial action.3. The alleged perpetrator shall be entitled to no more than one (1) administrative review of any preliminary finding.4. The division shall not conduct an administrative review if a finding has been substantiated through court adjudication pursuant to sections 210.153, 210.110 or 210.118, RSMo.5. Death Pending Administrative Review. If the alleged perpetrator's representative or next of kin provides proof that the alleged perpetrator died before the alleged perpetrator's time to request review expired or before the requested board hearing occurred, the division shall retain the report and all information but shall not add the deceased alleged perpetrator to the central registry. The division shall retain and disclose information and findings in the same manner as the division retains and discloses reports involving unknown perpetrators and family assessments.(4) Administration of the Child Abuse and Neglect Review Board.(A) The division may establish more than one (1) board to assure timely and independent review of child abuse and neglect determinations.(B) Each board shall be composed of nine (9) members from specified professions as required in section 210.153, RSMo. No member of the board shall be employed by the Department of Social Services. Members shall be appointed by the governor with the advice and consent of the senate.(C) Initially, three (3) board members shall be appointed to serve for a term of three (3) years, three (3) board members shall be appointed to serve for a term of two (2) years, and three (3) board members shall be appointed to serve for a period of one (1) year.1. Members of the board may continue serving after their terms expire until they are reconfirmed or replaced by confirmed appointees.2. Members of each board shall designate a chairperson.3. Members of the board shall complete a minimum of three (3) hours of training regarding child abuse and neglect annually, as approved by the division. The division shall notify the board of available training opportunities.(D) The information presented to the board and the deliberations of the board are confidential and shall not be disclosed except as authorized by law.(E) Members of the board shall meet regularly, and if needed, frequently, depending on the number of requests for review being filed. But a minimum of one (1) board shall meet a minimum of one (1) time per month.(F) The division shall assign one (1) or more staff members to the board to handle administrative matters such as scheduling cases for hearing, administering correspondence for the board, and other appropriate matters. Administrative personnel, including the division's liaison to the board, shall not participate in the deliberations of the board on the merits of cases.(5) The purpose of a board hearing is to provide an independent review of the sufficiency of the division's preliminary finding. CANRB review is limited to whether or not the information presented to the board establishes by a preponderance of evidence that the alleged perpetrator is responsible for abuse, neglect, or both, as those terms are defined in 13 CSR 35-31.010 and section 210.110, RSMo.(6) A member of the board shall recuse themself from any case in which the member determines the member cannot be fair or impartial.(A) A member of the board shall recuse themself from any case in which the member- 1. Has an interest in the case;2. Is related to the alleged perpetrator, alleged victim, any witness, or any family member of the alleged victim or perpetrator;3. Has been legal counsel to the alleged perpetrator, alleged victim, or any family member of the alleged victim or perpetrator;4. Personally provided care or services to the alleged perpetrator, alleged victim, or any family member of the alleged victim or perpetrator; or5. Has personal knowledge of the facts and circumstances of the case, beyond what may be generally available to the public.(B) Alleged perpetrators have no right to a change of board or a particular board member. 1. Any alleged perpetrator who has good cause to believe that a member or members of the board cannot act in a fair and impartial manner shall promptly notify the board in writing and shall specify in detail the nature of the concern.2. The board shall then rule on the concern. If a board member recuses himself or herself or if the board grants the alleged perpetrator's request to recuse, then the board may grant a continuance of the hearing if the recusal would result in the board failing to reach a quorum.3. If the alleged perpetrator does not file an objection with the board prior to the commencement of the hearing, any objection to the impartiality of the board or members of the board shall have been waived.(7) Reviews conducted by the board are not contested cases under Chapter 536, RSMo. The board shall adhere to the following procedures for notification, scheduling, and conducting child abuse and neglect reviews:(A) The parties to a board hearing are the alleged perpetrator and the division;(B) The division shall determine whether a board hearing shall be held in person or via teleconference or other electronic means;(C) Record Requests- 1. There is no right to conduct formal discovery as set forth in the Rules of Civil Procedure for the Missouri Supreme Court and/or Chapter 536, RSMo. However, the alleged perpetrator may request that the division produce relevant investigative records;2. Record requests shall be addressed to the division and not to the Board; and3. If the alleged perpetrator makes a request for records, the division shall provide a copy of the child abuse and neglect investigative report completed by the division to the alleged perpetrator as allowed by law, with the exception of information which is privileged and/or confidential as otherwise provided by law, and information that could, in the sole discretion of the division, jeopardize a person's life or safety if released. The division shall redact from any information provided to the perpetrator all confidential information, including, but not limited to, any information that may identify the reporter of the incident in question;(D) The division and the alleged perpetrator shall submit any written documents or other evidence to the board no less than twenty-one (21) days before the hearing date to provide the board with sufficient time to review the information before the hearing. Documents or evidence submitted to the board less than twenty-one (21) days before the hearing date may be considered at the sole discretion of the board;(E) The division's liaison to the board shall notify the alleged victim or the alleged victim's parent, guardian, or legal representative that a hearing has been scheduled and of the opportunity to participate as a witness;(F) Board hearings shall be conducted in an informal manner. The rules of evidence do not apply to board hearings including, but not limited to, the following: 1. Testimony from witnesses and parties shall not be provided under oath;2. There is no right to cross examine witnesses;3. Neither witnesses nor evidence are subject to subpoena;4. Board hearings are not hearings on the record;5. The board shall determine whether information, exhibits, or evidence are relevant; and6. No official transcript of the hearing shall be prepared, provided, or retained;(G) The board hearing shall be closed to all persons except the parties, their attorneys, and witnesses. At the review, the division shall have twenty (20) minutes to present evidence to the board. Upon conclusion of the division's evidence, the alleged perpetrator shall have twenty (20) minutes to present evidence to the board. The division and the alleged perpetrator may reserve three (3) of their twenty (20) minutes for rebuttal. During their respective presentations, the division and the alleged perpetrator may present witnesses to the board. An additional twenty (20) minutes, to be divided evenly among all witnesses, may be allotted for additional witnesses who wish to provide evidence on behalf of the alleged victim, but who were not called as witnesses by either the division or the alleged perpetrator. All witnesses will be heard at the board's discretion. 1. The board may, in its sole discretion, approve extra time for any presentation, but may not extend the time for decision of the case.2. The alleged perpetrator's attendance is not mandatory for a review to be held.3. The division's liaison to the board shall notify the alleged perpetrator and his or her attorney of record, if applicable, whether the review shall be held in person or via teleconference or other electronic means, and the date, time, and location of the review. If the hearing is held in person, any party, attorney, representative, or witness may nonetheless participate in the hearing by conference call.4. Alleged perpetrators may present their cases to the board pro se or through legal counsel.5. Appropriate staff shall represent the division. The division may also be represented by legal counsel.6. Nonparty witnesses, including witnesses on behalf of the alleged victim, shall only be allowed to participate in that portion of the review in which they are presenting information.7. Either party who wishes to submit evidence in electronic format shall contact the liaison of the board at least twenty-one (21) days prior to the scheduled hearing date to ascertain whether the board has equipment to review the evidence. Neither the division nor the board shall be responsible for supplying equipment or for equipment failure. The party who wishes to present the information in electronic format shall be responsible for delivering the information to the board in a format which the board and its members can review;(H) The board shall review and discuss all relevant materials and testimony, and all board members participating at the hearing shall have the right to vote on whether to uphold or reverse the division's finding.1. The board shall have a quorum of not less than five (5) members to hold a hearing. If a quorum cannot be reached, the board shall reschedule the hearing. If there are vacancies on the board, the board shall continue to operate in its usual manner, so long as a quorum can be met for each hearing. To ensure a quorum, members may serve on CANRB panels outside the specific board to which the member was appointed.2. The board's decision shall be based on a majority vote. In cases where the vote is tied, the board shall affirm the division's finding.3. The board's decision shall be based solely on the information submitted in advance or presented to the board at the hearing.4. The board shall make its decision on the day of the case's review;(I) The division, on behalf of the board, shall promptly notify the alleged perpetrator of the board's decision in writing.1. If the board upholds the division's preliminary finding, the division shall send the decision to the alleged perpetrator's Address of Record. Any properly addressed decisions under this rule that are returned as refused or unclaimed shall be deemed satisfactory notice. The division shall notify the parties and the alleged perpetrator's attorney, if applicable, by regular or electronic mail. The division shall place the alleged perpetrator's name on the central registry as allowed by law.2. If the board reverses the division's preliminary finding, the division shall notify all parties by regular or electronic mail and the division shall not list the alleged perpetrator as a perpetrator of child abuse or neglect in the central registry;(J) If the alleged perpetrator requires reasonable accommodations pursuant to the Americans with Disabilities Act, the alleged perpetrator shall notify the board's liaison at least ten (10) days before the hearing; and(K) The division may grant a continuance to the alleged perpetrator for good cause, but the number of continuances shall be restricted to ensure a timely review. Pending criminal charges arising out of the facts of the investigation shall not constitute good cause if the alleged perpetrator obtained or could have obtained his or her investigative report.(8) The board shall expunge its files after one (1) year. The board shall keep a log documenting the board's final decision. If the board upholds the division's preliminary finding, the division may, at its discretion, retain the board's voting slip, notification letter(s), and certified mailing receipt by paper or electronic means.(9) Each board shall submit, no later than March 15 annually, a written report to the Department of Social Services containing a summary of activities of the board and recommendations to improve the child protection services system at the state and local levels. AUTHORITY: section 210.153, RSMo Supp. 2007.* Original rule filed Sept. 27, 2007, effective March 30, 2008. Amended by Missouri Register September 1, 2021/Volume 46, Number 17, effective 10/31/2021*Original authority: 210.153, RSMo 1994, amended 2004.