Or. Admin. Code § 419-210-0170

Current through Register Vol. 63, No. 12, December 1, 2024

Section 419-210-0170 - Abuse Determination

(1) Abuse Determination Requirements.

(a) Except as provided in OAR 419-210-0160 (Exception to Completing an Investigation), an abuse determination must be made for all reports of abuse that are determined to require an investigation under OAR 419-210-0130.

(b) When making an abuse determination the standard of proof is reasonable cause to believe.

(c) Based on the available evidence after conducting an investigation, the possible abuse determinations are:

(A) "Substantiated", which means there is reasonable cause to believe the abuse occurred.

(B) "Unsubstantiated", which means there is no evidence the abuse occurred.

(C) "Inconclusive", which means there is some indication that the abuse occurred but there is insufficient evidence to conclude that there is reasonable cause to believe that the abuse occurred. The "Inconclusive" determination may only be used in the following circumstances:

(i) After extensive efforts have been made, the OTIS investigator is unable to locate the alleged victim; or

(ii) After completing the investigation, there is insufficient information to support an abuse determination of substantiated or unsubstantiated and the alleged victim is unable or unwilling to provide consistent information; or there is conflicting information from collateral contacts.

(2) Except as provided in section (4) of this rule, abuse of a child, for the purpose of making an abuse determination on a report subject to ORS 419B.005, includes, but is not limited to:

(a) Child selling, including the selling of a child that consists of buying, selling, bartering, trading, or offering to buy or sell the legal or physical custody of a child.

(b) Mental injury which shall include only cruel or unconscionable acts or statements made, or threatened to be made, to a child if the acts, statements or threats result in severe harm to the child's psychological, cognitive, emotional or social well-being and functioning.

(c) Neglect, including failure, through action or omission, to provide and maintain adequate food, clothing, shelter, medical care, supervision, protection, or nurturing. Neglect includes each of the following:

(A) Physical neglect, which includes each of the following:

(i) Failing to provide for the child's basic physical needs including adequate shelter, food, and clothing.

(ii) Permitting a child to enter or remain in or upon premises where methamphetamines are being manufactured.

(iii) Unlawful exposure of a child to a substance that subjects a child to severe harm to the child's health or safety. When the OTIS investigator is making a determination of physical neglect based on severe harm to the child's health due to unlawful exposure to a substance, this determination must be consistent with medical findings.

(B) Medical neglect is a refusal or failure to seek, obtain, or maintain necessary medical, dental, or mental health care. Medical neglect includes withholding medically indicated treatment from infants who have disabilities and life-threatening conditions. However, failure to provide a child with immunizations or routine care alone does not constitute medical neglect. When the OTIS investigator is making a determination of medical neglect, this determination must be consistent with medical findings.

(C) Lack of supervision and protection, including failure to provide supervision and protection appropriate to the child's age, mental ability, and physical condition.

(D) Desertion, which includes the respondent leaving the child with another person and failing to reclaim the child, or respondent failure to provide information about their whereabouts, providing false information about their whereabouts, or failing to establish a legal guardian or custodian for the child.

(E) Psychological neglect, which includes serious inattention to the child's need for affection, support, nurturing, or emotional development. The respondent's behavior must be related to the observable and severe harm of the child's psychological, cognitive, emotional, or social well-being and functioning.

(d) Physical abuse, including an injury to a child that is inflicted or allowed to be inflicted by non-accidental means that results in harm. Physical abuse may include injury that could not reasonably be the result of the explanation given. Physical abuse may also include injury that is a result of discipline or punishment. Examples of injuries that may result from physical abuse include, but are not limited to:

(A) Head injuries;

(B) Bruises, cuts, lacerations;

(C) Internal injuries;

(D) Burns or scalds;

(E) Injuries to bone, muscle, cartilage, and ligaments;

(F) Poisoning;

(G) Electrical shock; and

(H) Death.

(e) Sexual abuse, which includes:

(A) A person's use of a child for the person's own sexual gratification, the sexual gratification of another person, or the sexual gratification of the child. Sexual abuse includes incest, rape, sodomy, sexual penetration, fondling, and voyeurism.

(B) Sexual exploitation, including, but not limited to, the use of a child in a sexually explicit way for personal gain to make money, in exchange for goods, services, or drugs, or to gain status. Sexual exploitation also includes using children in prostitution or using children to create pornography.

(C) Sex trafficking.

(f) Threat of harm, including all activities, conditions, and circumstances that place the child at threat of severe harm of physical abuse, sexual abuse, neglect, mental injury, or other abuse.

(3) Except as provided in section (4) of this rule, abuse of a child-in-care, for the purpose of making an abuse determination on a report subject to ORS 418.257, includes, among others, the following:

(a) Abandonment, including desertion or willful forsaking of a child-in-care, or the withdrawal or neglect of duties and obligations owed a child-in-care by a, child-caring agency, proctor foster parent, ODDS licensed group home, ODDS host home, ODDS foster parent, other individual, or an employee, volunteer, or contractor of a child-caring agency, proctor foster home, ODDS licensed group home, ODDS host home, or ODDS foster home.

(b) Financial exploitation.

(A) Financial exploitation includes:

(i) Wrongfully taking the assets, funds, or property belonging to or intended for the use of a child-in-care.

(ii) Alarming a child-in-care by conveying a threat to wrongfully take or appropriate moneys or property of the child-in-care if the child-in-care would reasonably believe that the threat conveyed would be carried out.

(iii) Misappropriating, misusing, or transferring without authorization any moneys from any account held jointly or singly by a child-in-care.

(iv) Failing to use the income or assets of a child-in-care effectively for the support and maintenance of the child-in-care.

(B) Financial exploitation does not include age-appropriate discipline that may involve the threat to withhold, or the withholding of, privileges.

(c) The use of involuntary seclusion of a child-in-care in violation of of ORS 418.521 or ORS 418.523.

(d) Neglect:

(A) Neglect includes:

(i) Failure to provide the care, supervision, or services necessary to maintain the physical and mental health of a child-in-care; or

(ii) The failure of a child-caring agency, proctor foster parent, ODDS licensed group home, ODDS host home, ODDS foster parent, other person, or an employee, contractor, or volunteer of a child-caring agency, proctor foster home, ODDS licensed group home ODDS host home, or ODDS foster home to make a reasonable effort to protect a child-in-care from abuse.

(B) For purposes of this subsection, "services" includes, but is not limited to, the provision of food, clothing, medicine, housing, medical services, assistance with bathing or personal hygiene or any other service essential to the well-being of a child-in-care.

(e) Physical abuse, which includes:

(A) Any physical injury to a child-in-care caused by other than accidental means, or that appears to conflict with the explanation given of the injury; or

(B) Willful infliction of physical pain or injury upon a child-in-care.

(f) Sexual abuse:

(A) Sexual abuse includes:

(i) An act that constitutes a crime under ORS 163.375, 163.405, 163.411, 163.415, 163.425, 163.427, 163.465, 163.467, or 163.525;

(ii) Sexual harassment, sexual exploitation, or inappropriate exposure to sexually explicit material or language;

(iii) Any sexual contact between a child-in-care and an employee of a child-caring agency, proctor foster home, ODDS licensed group home, ODDS host home, ODDS foster home, or other person responsible for the provision of care or services to a child-in-care;

(iv) Any sexual contact between a person and a child-in-care that is unlawful under ORS chapter 163 and not subject to a defense under that chapter; and

(v) Any sexual contact that is achieved through force, trickery, threat, or coercion.

(B) For purposes of this subsection, "sexual exploitation," as defined in ORS 419B.005(1)(a)(E), includes, but is not limited to:

(i) Contributing to the sexual delinquency of a minor, as defined in ORS chapter 163, and any other conduct that allows, employs, authorizes, permits, induces or encourages a child to engage in the performing for people to observe or the photographing, filming, tape recording or other exhibition that, in whole or in part, depicts sexual conduct or contact, as defined in ORS 167.002 or described in ORS 163.665 and ORS 163.670, sexual abuse involving a child or rape of a child, but not including any conduct that is part of any investigation conducted pursuant to ORS 419B.020 or that is designed to serve educational or other legitimate purposes; and

(ii) Allowing, permitting, encouraging or hiring a child to engage in prostitution as described in ORS 167.007 or a commercial sex act as defined in ORS 163.266, to purchase sex with a minor as described in ORS 163.413 or to engage in commercial sexual solicitation as described in ORS 167.008.

(C) For purposes of this subsection, "sexual contact," as defined in ORS 163.305, means any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.

(g) Verbal abuse:

(A) Verbal abuse includes threatening severe harm, either physical or emotional, to a child-in-care through the use of:

(i) Derogatory or inappropriate names, insults, verbal assaults, profanity, or ridicule; or

(ii) Harassment, coercion, threats, compelling or deterring conduct by threats, humiliation, mental cruelty, or inappropriate sexual comments.

(B) Verbal abuse does not include age-appropriate discipline that may involve the threat to withhold privileges.

(h) The use of restraint of a child-in-care in violation of ORS 418.521 or ORS 418.523.

(4) Abuse does not include reasonable discipline unless the discipline results in one of the conditions described in sections (2) or (3) of this rule.

Or. Admin. Code § 419-210-0170

DHSD 8-2016, f. & cert. ef. 12-1-16; DHSD 17-2017, temporary amend filed 12/28/2017, effective 01/01/2018 through 06/29/2018; DHSD 14-2018, amend filed 06/29/2018, effective 06/30/2018; DHSD 30-2018, minor correction filed 11/26/2018, effective 11/26/2018; DHSD 25-2019, minor correction filed 11/07/2019, effective 11/07/2019; DHSD 1-2020, temporary amend filed 01/17/2020, effective 01/17/2020 through 07/14/2020; DHSD 4-2020, amend filed 03/27/2020, effective 03/27/2020; DHS 2-2021, amend filed 02/26/2021, effective 03/01/2021; DHS 9-2021, renumbered from 407-045-0887, filed 07/01/2021, effective 07/01/2021; DHS 15-2021, minor correction filed 07/01/2021, effective 07/01/2021; DHS 19-2021, temporary amend filed 08/19/2021, effective 09/01/2021 through 02/27/2022; DHS 4-2022, amend filed 03/05/2022, effective 03/05/2022; DHS 10-2022, minor correction filed 04/25/2022, effective 04/25/2022; DHS 4-2023, temporary amend filed 08/31/2023, effective 09/01/2023 through 02/27/2024; DHS 18-2023, amend filed 12/22/2023, effective 01/01/2024; DHS 13-2024, renumbered from 407-046-0170, filed 10/30/2024, effective 11/1/2024; OTIS 20-2024, minor correction filed 11/01/2024, effective 11/1/2024

Statutory/Other Authority: ORS 409.050 & 418.005

Statutes/Other Implemented: ORS 409.050, 443.400 - 443.455, 419B.005 - 419B.050, 418.005, 418.257 - 418.259, 418.519 - 418.532 & 409.185