Arkansas Administrative Code
Agency 016 - DEPARTMENT OF HUMAN SERVICES
Division 15 - Children and Family Services
Rule 016.15.20-001 - Child Maltreatment Investigation Determination
Current through Register Vol. 49, No. 9, September, 2024
Introduction
This publication outlines the legal elements required to make a true finding for child maltreatment at the conclusion of a child maltreatment investigation as per the Child Maltreatment Act. This publication is promulgated under the authority of § 12-18-105 of the Arkansas Code to carry out the Child Maltreatment Act. The information within this publication, therefore, has the force and effect of law.
This publication is designed to help investigators identify the elements that must be established before an allegation of child maltreatment can be determined true under the Child Maltreatment Act, which defines child maltreatment as conduct that falls under one (1) or more of five (5) categories:
(1) Abandonment,
(2) Abuse,
(3) Neglect,
(4) Sexual Abuse, and
(5) Sexual Exploitation.
To do this, Section 1 sets out the statutory definition and exceptions for each category of child maltreatment. Section 1 then explains the elements required to make a true finding for each category of child maltreatment and each type of child maltreatment that may occur under each category of child maltreatment. Section 2 provides an index of all thirty-eight (38) types of child maltreatment.
An investigator can only make a true finding as to one (1) or more of the five (5) categories of child maltreatment and only then if the investigator finds that each of the elements for the applicable child maltreatment category type are established by a preponderance of the evidence. "Preponderance of the evidence" is a legal standard of proof that means that it is "more likely than not" that child maltreatment occurred based on all the evidence that the investigator is able to collect during the given investigation.
A true finding cannot be made based solely on the examples given in this publication; a true finding must be based on the investigator's determination that each element of the given category type of child maltreatment is supported by a preponderance of the evidence. The examples do not change the elements required to constitute child maltreatment, but rather merely provide possible ways in which a given category type of child maltreatment could occur.
Glossary
A/O. Alleged Offender. The person alleged to have committed child maltreatment.
A/V. Alleged Victim. The person who is the alleged victim of child maltreatment.
Investigator. An employee of the Department of Human Services (DHS) or the Arkansas State Police who investigates allegations of child maltreatment.
Definition
Abandonment means the failure of a parent to provide reasonable support and to maintain regular contact with a child through statement or contact when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future or the failure of a parent to support or maintain regular contact with a child without just cause. Abandonment also means an articulated intent to forego parental responsibility.
Exceptions
Married Minor Exception. Abandonment does not include acts or omissions of a parent towards a married minor.
Disrupted Adoption Exception. Abandonment does not include situations in which a child has disrupted his or her adoption and the adoptive parent has exhausted the available resources.
Making a True Determination
Based on the definition above and unless an exception applies, an investigator may determine that an allegation of abandonment is true if a preponderance of the evidence establishes each of the elements for at least one (1) type of abandonment:
Abandonment for an indefinite period:
Abandonment without just cause:
Abandonment by articulated intent:
Definition
Abuse means any of the following acts or omissions by a parent, guardian, custodian, foster parent, person eighteen (18) years of age or older living in the home with a child whether related or unrelated to the child, or any person who is entrusted with the child's care by a parent, guardian, custodian, or foster parent, including, but not limited to, an agent or employee of a public or private residential home, child care facility, public or private school, a significant other of the child's parent, or any person legally responsible for the child's welfare, but excluding the spouse of a minor:
* Extreme or repeated cruelty to a child;
* Engaging in conduct creating a realistic and serious threat of death, permanent or temporary disfigurement, or impairment of any bodily organ;
* Injury to a child's intellectual, emotional, or psychological development as evidenced by observable and substantial impairment of the child's ability to function within the child's normal range of performance and behavior;
* Any injury that is at variance with the history given;
* Any nonaccidental physical injury;
* Any of the following intentional or knowing acts, with physical injury and without justifiable cause: throwing, kicking, burning, biting, or cutting a child; striking a child with a closed fist; shaking a child; or striking a child on the face or head;
* Any of the following intentional or knowing acts, with or without physical injury: striking a child six (6) years of age or younger on the face or head; shaking a child three (3) years of age or younger; interfering with a child's breathing; pinching, biting, or striking a child in the genital area; tying a child to a fixed or heavy object or binding or tying a child's limbs together;
* Any of the following intentional or knowing acts, with or without physical injury: giving a child or permitting a child to consume or inhale a poisonous or noxious substance not prescribed by a physician that has the capacity to interfere with normal physiological functions;
* Any of the following intentional or knowing acts, with or without physical injury: giving a child or permitting a child to consume or inhale a substance not prescribed by a physician that has the capacity to alter the mood of the child, including, but not limited to marijuana, alcohol (excluding alcohol given to a child during a recognized and established religious ceremony or service), a narcotic, or an over-the-counter drug if a person purposely administers an overdose to a child or purposely gives an inappropriate over-the-counter drug to a child and the child is detrimentally impacted by the overdose or the over-the-counter drug;
* Any of the following intentional or knowing acts, with or without physical injury: exposing a child to a chemical that has the capacity to interfere with normal physiological functions, including, but not limited to, a chemical used or generated during the manufacture of methamphetamine;
* Any of the following intentional or knowing acts, with or without physical injury: subjecting a child to Munchausen syndrome by proxy or a factitious illness by proxy if the incident is confirmed by medical personnel;
* Recruiting, harboring, transporting, or obtaining a child for labor or services, through force, fraud, or coercion, for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery; or
* Female genital mutilation.
This list is illustrative of unreasonable action and is not intended to be exclusive. No unreasonable action shall be construed to permit a finding of abuse without having established the elements of abuse. This means that other acts or omission can constitute abuse if the action is unreasonable and the A/O is a parent, guardian, custodian, person eighteen (18) years of age or older who lives in the home with the A/V, or any person entrusted with the A/V's care by a parent, guardian, custodian, or foster parent, including, but not limited to, an agent or employee of a public or private residential home, child care facility, public or private school, a significant other of the A/V's parent, or any person legally responsible for the A/V's welfare. However, if the act or omission could fall within the definition of one (1) of the types of abuse, then the act or omission must meet the elements of that type of abuse to constitute child maltreatment.
Exceptions
Physical Discipline Exception. Abuse does not include physical discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining or correcting the child. Reasonable and moderate physical discipline inflicted by a parent or guardian does not include any act that is likely to cause, and which does cause, injury more serious than transient pain or minor temporary marks. The age, size, and condition of the child and the location of the injury and the frequency or recurrence of injuries shall be considered when determining whether the physical discipline is reasonable or moderate.
Appropriate Restraint Exception. Abuse does not include when a child suffers transient pain or minor temporary marks as a result of an appropriate restraint if: the person exercising the restraint is an employee of a child welfare agency licensed or exempted from licensure under the Child Welfare Agency Licensing Act; the person exercising the restraint is acting in his or her official capacity while on duty at a child welfare agency licensed or exempted from licensure under the Child Welfare Agency Licensing Act; the child welfare agency has policy and procedures regarding restraints; no other alternative exists to control the child except for a restraint; the child is in danger or hurting himself or herself or others; the person exercising the restraint has been trained in properly restraining children, de-escalation, and conflict resolution techniques; the restraint is for a reasonable period of time; and the restraint is in conformity with training and child welfare agency's policies and procedures.
Making a True Determination
Based on the definition above and unless an exception applies, an investigator may determine that an allegation of abuse is true if a preponderance of the evidence establishes each of the elements for at least one (1) type of abuse:
Extreme or repeated cruelty.
Threat of harm.
NOTE: True findings for abuse involving the threat of harm can be made even if the A/V was not injured; this type only requires that the A/O created a realistic and serious threat to the A/V of death, disfigurement, or impairment of a bodily organ.
Mental injury.
Injury at variance with explanation given.
Nonaccidental physical injury.
NOTE: True findings for nonaccidental physical injuries can be made regardless of whether the A/O intended to cause the physical injury that the A/V suffered; the relevant and culpable act or omission is the act or omission that caused the nonaccidental physical injury.
Abuse with physical injury and without justifiable cause.
Abuse with or without physical injury.
NOTE: True findings for abuse with or without physical injuries can be made regardless of whether the act caused A/V any physical injuries.
Abuse involving noxious or poisonous substances that may interfere with normal physiological functions.
NOTE: True findings for abuse involving substances that may interfere with normal physiological functions can be made regardless of whether the act caused A/V any physical injuries or whether the substance interfered with the A/V's normal physiological functions.
NOTE: Normal physiological functions are the functions of the body and include without limitation metabolism, responsiveness, cognition, movement, reproduction, growth, respiration, digestion, and excretion. Staff are encouraged to consult with a physician as needed for any questions related to what may constitute normal physiological function.
Abuse involving substances that may alter the mood of a child.
NOTE: True findings for abuse with or without physical injuries can be made regardless of whether the act caused A/V any physical injuries.
Abuse involving exposure to a chemical that may interfere with normal physiological functions.
NOTE: True findings for abuse involving exposure to a chemical that may interfere with normal physiological functions can be made regardless of whether the act caused A/V any physical injuries or whether the substance actually interfered with the A/V's physiological functions.
NOTE: Normal physiological functions are the functions of the body and include without limitation metabolism, responsiveness, cognition, movement, reproduction, growth, respiration, digestion, and excretion.
Abuse involving subjection of a child to Munchausen syndrome by proxy or factitious illness.
NOTE: True findings for abuse involving subjection of a child to Munchausen syndrome by proxy or factitious illness can be made regardless of whether the act caused A/V any physical injuries.
NOTE: Munchausen syndrome by proxy and factitious illness by proxy are often diagnosed with newer terms such as factitious disorder imposed on another, pediatric condition falsification, or medical child abuse. If the A/O sought treatment for a fabricated medical condition, then these other diagnoses are each sufficient to establish Munchausen syndrome by proxy or factitious illness by proxy.
Human trafficking.
Female genital mutilation
NOTE : Female genital mutilation includes without limitation procedures such as a clitoridectomy; the partial or total removal of the clitoris or the prepuce; the excision or the partial or total removal of the clitoris and the labia minora (with or without the excision of the labia majora); the infibulation or the narrowing of the vaginal orifice with the creation of a covering seal by cutting or a positioning the labia minora or the labia majora (with or without the excision of the clitoris); pricking, piercing, incising, scraping, or cauterizing the genital area; or any other action to purposely alter the structure or function of the female genitalia for a nonmedical reason.
Definition
Neglect means acts or omissions by a parent, guardian, custodian, foster parent, or any person who is entrusted with the child's care by a parent, guardian, custodian, or foster parent, including, but not limited to, an agent or employee of a public or private residential home, child care facility, public or private school, or any person legally responsible under state law for the child's welfare, but excluding the spouse of a minor and the parents of a married minor, that constitute one (1) of the following:
* Failure or refusal to prevent the abuse of the child when the person knows or has reasonable cause to know the child is or has been abused;
* Failure or refusal to provide necessary food, clothing, shelter, or medical treatment necessary for the child's well-being, except when the failure or refusal is caused primarily by the financial inability of the person legally responsible and no services for relief have been offered;
* Failure to take reasonable action to protect the child from abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness when the existence of the condition was known or should have been known;
* Failure or irremediable inability to provide for the essential and necessary physical, mental, or emotional needs of the child, including the failure to provide a shelter that does not pose a risk to the health or safety of the child;
* Failure to provide for the child's care and maintenance, proper or necessary support, or medical, surgical, or other necessary care;
* Failure, although able, to assume responsibility for the care and custody of the child or to participate in a plan to assume such responsibility;
* Failure to appropriately supervise the child that results in the child's being left alone at an inappropriate age creating a dangerous situation or a situation that puts the child at risk of harm, or, in inappropriate circumstances creating a dangerous situation or a situation that puts the child at risk of harm;
* Failure to appropriately supervise the child that results in the child's being placed in inappropriate circumstances creating a dangerous situation, or a situation that puts the child at risk of harm;
* Failure to ensure a child between six (6) years of age and seventeen (17) years of age is enrolled in school or is being legally home schooled;
* An act or omission by the child's parent, custodian, or guardian resulting in the child being habitually and without justification absent from school;
* Causing a child to be born with an illegal substance present in the child's bodily fluids or bodily substances as a result of the pregnant mother knowingly using an illegal substance before the birth of the child; or
* At the time of the birth of a child, the presence of an illegal substance in the mother's bodily fluids or bodily substances as a result of the pregnant mother knowingly using an illegal substance before the birth of the child.
Exceptions
None.
Making a True Determination
Based on the definition above, an investigator may determine that an allegation of neglect is true if a preponderance of the evidence establishes each of the elements for at least one (1) type of neglect:
Failure to prevent abuse.
NOTE: True findings for neglect involving the failure to prevent abuse can be made only if the A/V was abused. If the A/V did not suffer abuse, the separate type of neglect involving the failure to protect from maltreatment or parental unfitness may be applicable because that type does not require that the A/V be maltreated.
Failure to provide necessary food, clothing, shelter, or medical treatment.
Failure to protect from maltreatment or parental unfitness.
NOTE: True findings for neglect involving the failure to protect from child maltreatment or parental unfitness can be made even if the A/V was not maltreated or subjected to parental unfitness; this type only requires that the A/O failed to take reasonable action to protect the A/V from the risk of child maltreatment or parental unfitness.
Failure to provide for essential and necessary needs.
Failure to provide for care, maintenance, or support.
Failure to assume responsibility for a child.
Inadequate supervision by leaving a child alone.
NOTE: The foreseeability of harm and the A/O's awareness of dangerous circumstances are two (2) factors relevant to whether neglect by inadequate supervision has occurred. Specifically, the foreseeability of harm and the awareness of dangerous circumstances are relevant to the appropriateness of the circumstances in which the A/O placed the A/V and the foreseeability of harm if the A/V was left alone in those circumstances.
Inadequate supervision by placing child in a dangerous situation.
NOTE: The foreseeability of harm and the A/O's awareness of dangerous circumstances are two factors relevant to whether neglect by inadequate supervision has occurred. Specifically, the foreseeability of harm and the awareness of dangerous circumstances are relevant to the appropriateness of the circumstances in which the A/O placed the A/V.
Educational neglect by failing to enroll a child in school.
NOTE: A home school is a school provided by a parent or legal guardian for his or her own child.
NOTE: Staff must determine if a child is legally home-schooled as per A.C.A. 6-15-503. Please consult with local Office of Chief Counsel (OCC) attorney to determine if a child is legally home-schooled.
Educational neglect due to absence from school.
Presence of illegal substance in a child when a child is born.
NOTE: An illegal substance means a drug that is prohibited to be used or possessed without a prescription under the Arkansas Criminal Code.
NOTE: A test of the A/V's bodily fluids or substances may be used as evidence to establish neglect by presence of an illegal substance in the
A/V at birth.
Presence of illegal substance in a mother when a child is born.
NOTE: An illegal substance means a drug that is prohibited to be used or possessed without a prescription under the Arkansas Criminal Code.
NOTE: A test of the A/O's bodily fluids or substances may be used as evidence to establish neglect by presence of an illegal substance in the A/O when the A/V is born.
Definition
Sexual abuse means:
* By a person fourteen (14) years of age or older to a person younger than eighteen (18) years of age: Actual or attempted sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion; indecent exposure; or forcing the watching of pornography or live sexual activity;
* By a person eighteen (18) years of age or older to a person not his or her spouse who is younger than fifteen (15) years of age: Actual or attempt sexual intercourse, deviate sexual activity, or sexual contact; or the solicitation of sexual intercourse, deviate sexual activity, or sexual contact;
* By a person twenty (20) years of age or older to a person not his or her spouse who is younger than sixteen (16) years of age: Actual or attempt sexual intercourse, deviate sexual activity, or sexual contact; or the solicitation of sexual intercourse, deviate sexual activity, or sexual contact;
* By a caretaker to a person younger than eighteen (18) years of age: Actual or attempted sexual intercourse, deviate sexual activity, or sexual contact; forcing or encouraging the watching of pornography; forcing, permitting, or encouraging the watching of live sexual activity; forcing the listening to a phone sex line; an act of voyeurism; or the solicitation of sexual intercourse, deviate sexual activity, or sexual contact;
* By a person younger than fourteen (14) years of age to a person younger than eighteen (18) years of age: Actual or attempted sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion; or
* By a person eighteen (18) years of age or older to a person who is younger than (18) years of age, the recruiting, harboring, transporting, obtaining, patronizing, or soliciting of a child for the purpose of a commercial sex act.
Exceptions
Defense and Affirmative Defense Exceptions.
Pursuant to 12-18-804, for any act or omission of child maltreatment that would be a criminal offense or an act of delinquency, any defense or affirmative defense, including the burden of proof regarding the affirmative defense, that would apply to the criminal offense or delinquent act is also cognizable in a child maltreatment proceeding with the exception of: a statute of limitation; lack of capacity as a result of mental disease or defect under § 5-2-312; and affirmative defenses under §§ 5-1-112 - 5-1-114.
For example, if a teacher and a student have a sexual relationship, an affirmative defense may apply. If the teacher engages in sexual intercourse or deviate sexual activity with a student less than 21 years of age and the teacher uses his or her position of trust or authority over the victim, then the conduct would fall under the definition of sexual abuse. However, if the teacher was no more than 3 years older than the student, then the affirmative defense would apply.
Staff must consult with local OCC attorney regarding possible defense and affirmative defense exceptions.
Making a True Determination
Based on the definition above and unless an exception applies, an investigator may determine that an allegation of sexual abuse is true if a preponderance of the evidence establishes each of the elements for at least one (1) type of sexual abuse:
Sexual intercourse.
NOTE: This type of sexual abuse provides that if the A/O is twenty (20) years old or older and the A/V is sixteen (16) years old or older, a true finding for sexual abuse cannot be made unless the circumstances satisfy a type of sexual abuse by sexual intercourse described below that require that the A/O either was the A/V's caretaker or used forcible compulsion.
NOTE: This type of sexual abuse provides that if the A/O is eighteen (18) to nineteen (19) years old and the A/V is fifteen (15) or sixteen (16) years old, a true finding for sexual abuse cannot be made unless the circumstances satisfy a type of sexual abuse by sexual intercourse described below that require that the A/O either was the A/V's caretaker or used forcible compulsion.
NOTE: No forcible compulsion is required to establish sexual abuse by a caretaker.
A/O engaged in sexual intercourse, or attempted to engage in sexual intercourse, with the A/V;
NOTE: This type of sexual abuse provides that if the A/O is fourteen (14) years old to seventeen (17) years old, a true finding for this type of sexual abuse cannot be made unless the A/O used forcible compulsion.
NOTE: The age, developmental stage, and stature of the A/V and the relationship of the A/V to the A/O, as well as the threat of deprivation of affection, rights, and privileges from the A/V by the A/O, shall be considered in weighing the sufficiency of the evidence to prove forcible compulsion.
NOTE: The age, developmental stage, and stature of the A/V and the relationship of the A/V to the A/O, as well as the threat of deprivation of affection, rights, and privileges from the A/V by the A/O, shall be considered in weighing the sufficiency of the evidence to prove forcible compulsion.
NOTE: The exception to sexual abuse may apply to this type of sexual abuse.
Deviate sexual activity.
NOTE: This type of sexual abuse provides that if the A/O is twenty (20) years old or older and the A/V is sixteen (16) years old or older, a true finding for sexual abuse cannot be made unless the circumstances satisfy a type of sexual abuse by deviate sexual activity described below that require that the A/O either was the A/V's caretaker or used forcible compulsion.
NOTE: Evidence of sexual gratification may be inferred from the attendant circumstances surrounding the specific complaint of child maltreatment.
NOTE: This type of sexual abuse provides that if the A/O is eighteen (18) to nineteen (19) years old and the A/V is fifteen (15) or sixteen (16) years old, a true finding for sexual abuse cannot be made unless the circumstances satisfy a type of sexual abuse by deviate sexual activity described below that require that the A/O either was the A/V's caretaker or used forcible compulsion.
NOTE: Evidence of sexual gratification may be inferred from the attendant circumstances surrounding the specific complaint of child maltreatment.
NOTE: No forcible compulsion is required to establish sexual abuse by a caretaker.
NOTE: Evidence of sexual gratification may be inferred from the attendant circumstances surrounding the specific complaint of child maltreatment.
NOTE: This type of sexual abuse provides that if the A/O is fourteen (14) years old to seventeen (17) years old, a true finding for this type of sexual abuse cannot be made unless the A/O used forcible compulsion.
NOTE: The age, developmental stage, and stature of the A/V and the relationship of the A/V to the A/O, as well as the threat of deprivation of affection, rights, and privileges from the A/V by the A/O, shall be considered in weighing the sufficiency of the evidence to prove forcible compulsion.
NOTE: Evidence of sexual gratification may be inferred from the attendant circumstances surrounding the specific complaint of child maltreatment.
NOTE: The age, developmental stage, and stature of the A/V and the relationship of the A/V to the A/O, as well as the threat of deprivation of affection, rights, and privileges from the A/V by the A/O, shall be considered in weighing the sufficiency of the evidence to prove forcible compulsion.
NOTE: Evidence of sexual gratification may be inferred from the attendant circumstances surrounding the specific complaint of child maltreatment.
NOTE: The exception to sexual abuse may apply to this form of sexual abuse.
Sexual contact.
NOTE: This type of sexual abuse provides that if the A/O is twenty (20) years old or older and the A/V is sixteen (16) years old or older, a true finding for sexual abuse cannot be made unless the circumstances satisfy a type of sexual abuse by sexual contact described below that require that the A/O either was the A/V's caretaker or used forcible compulsion.
NOTE: Evidence of sexual gratification may be inferred from the attendant circumstances surrounding the specific complaint of child maltreatment.
NOTE: Sexual contact does not include contact incidental to normal affectionate hugging.
NOTE: This type of sexual abuse provides that if the A/O is eighteen (18) to nineteen (19) years old and the A/V is fifteen (15) or sixteen (16) years old, a true finding for sexual abuse cannot be made unless the circumstances satisfy a type of sexual abuse by deviate sexual activity described below that require that the A/O either was the A/V's caretaker or used forcible compulsion.
NOTE: Evidence of sexual gratification may be inferred from the attendant circumstances surrounding the specific complaint of child maltreatment.
NOTE: Sexual contact does not include contact incidental to normal affectionate hugging.
NOTE: No forcible compulsion is required to establish sexual abuse by a caretaker.
NOTE: Evidence of sexual gratification may be inferred from the attendant circumstances surrounding the specific complaint of child maltreatment.
NOTE: Sexual contact does not include contact incidental to normal affectionate hugging.
NOTE: This type of sexual abuse provides that if the A/O is fourteen (14) years old to seventeen (17) years old, a true finding for this type of sexual abuse cannot be made unless the A/O used forcible compulsion.
NOTE: The age, developmental stage, and stature of the A/V and the relationship of the A/V to the A/O, as well as the threat of deprivation of affection, rights, and privileges from the A/V by the A/O, shall be considered in weighing the sufficiency of the evidence to prove forcible compulsion.
NOTE: Evidence of sexual gratification may be inferred from the attendant circumstances surrounding the specific complaint of child maltreatment.
NOTE: Sexual contact does not include contact incidental to normal affectionate hugging.
NOTE: The age, developmental stage, and stature of the A/V and the relationship of the A/V to the A/O, as well as the threat of deprivation of affection, rights, and privileges from the A/V by the A/O, shall be considered in weighing the sufficiency of the evidence to prove forcible compulsion.
NOTE: Evidence of sexual gratification may be inferred from the attendant circumstances surrounding the specific complaint of child maltreatment.
NOTE: Sexual contact does not include contact incidental to normal affectionate hugging.
Indecent exposure.
NOTE: Evidence of sexual gratification may be inferred from the attendant circumstances surrounding the specific complaint of child maltreatment.
Pornography.
NOTE: No force is required to establish sexual abuse by a caretaker; it is sufficient that the A/O encouraged or directed the A/V to watch pornography.
NOTE: The age, developmental stage, and stature of the A/V and the relationship of the A/V to the A/O, as well as the threat of deprivation of affection, rights, and privileges from the A/V by the A/O, shall be considered in weighing the sufficiency of the evidence to prove forcible compulsion.
Live Sexual Activity.
NOTE: No force is required to establish sexual abuse by a caretaker; it is sufficient that the A/O encouraged or even permitted the A/V to watch live sexual activity.
NOTE: The age, developmental stage, and stature of the A/V and the relationship of the A/V to the A/O, as well as the threat of deprivation of affection, rights, and privileges from the A/V by the A/O, shall be considered in weighing the sufficiency of the evidence to prove forcible compulsion.
Phone Sex Line.
Voyeurism.
NOTE: Evidence of sexual gratification may be inferred from the attendant circumstances surrounding the specific complaint of child maltreatment.
Sex Trafficking.
Definition
Sexual exploitation means:
* By a person eighteen (18) years of age or older to a child who is not his or her spouse: Allowing, permitting, or encouraging participation or depiction of the child in prostitution, obscene photography, or obscene filming; or obscenely depicting, obscenely posing, or obscenely posturing the child for any use or purpose.
* By a caretaker to a child: Allowing, permitting, or encouraging participation or depiction of the child in prostitution, obscene photography, or obscene filming; or obscenely depicting, obscenely posing, or obscenely posturing the child for any use or purpose.
Exceptions
None.
Making a True Determination
Based on the definition above, an investigator may determine that an allegation of sexual abuse is true if a preponderance of the evidence establishes each of the elements for at least one (1) type of sexual exploitation:
Sexual exploitation
Abandonment
Abandonment for an indefinite period
Abandonment without just cause
Abandonment by articulated intent
Abuse
Abuse involving exposure to a chemical that may interfere with normal physiological functions
Abuse involving subjection of a child to Munchausen syndrome by proxy or factitious illness
Abuse involving substances that may alter the mood of a child
Abuse involving noxious or poisonous substances that may interfere with normal physiological functions
Abuse with physical injury and without justifiable cause
Abuse with or without physical injury
Extreme or repeated cruelty
Female genital mutilation
Human trafficking
Injury at variance with explanation given
Mental injury
Nonaccidental physical injury
Threat of Harm
Neglect
Educational neglect by failing to enroll a child in school
Educational neglect due to absence from school
Failure to assume responsibility for a child
Failure to prevent abuse
Failure to protect from maltreatment or parental unfitness
Failure to provide necessary food, clothing, shelter, or medical treatment
Failure to provide for care, maintenance, or support
Failure to provide for essential and necessary needs
Inadequate supervision by leaving a child alone
Inadequate supervision by placing child in a dangerous situation
Presence of illegal substance in a child when a child is born
Presence of illegal substance in a mother when a child is born
Sexual Abuse
Deviate sexual activity
Indecent exposure
Live sexual activity
Phone sex line
Pornography
Sex trafficking
Sexual contact
Sexual intercourse
Voyeurism
Sexual Exploitation
Sexual exploitation
PROCEDURE XIII-A4: Automatic Name Removal from Child Maltreatment Central Registry
CRITERIA FOR REMOVAL
The offender's name will be automatically removed from the Child Maltreatment Central Registry for the following types of child maltreatment or types of maltreatment involving the following injury characteristics or other details, as designated by A.C.A. § 12-18-908, dependent upon the offender having not had a subsequent true report of this type for one year and more than one year having passed since the offender's name was placed on the Child Maltreatment Central Registry:
A.C.A. § 12-18-908 allows these to be set at the discretion of the Director of the Department. However, these can only be changed through normal promulgation after a special review by the House Interim Committee on Aging, Children and Youth, Legislative and Military Affairs and the Senate Interim Committee on Children and Youth [A.C.A. § 12-18-908 ].)
Procedure II-B1: Child Abuse Hotline Referral to Differential Response
The Child Abuse Hotline Worker will:
PROCEDURE II-D4: Child Maltreatment Report Investigation Interviews
The FSW will:
If any parties required to be interviewed (parents, children, alleged victim child, or alleged perpetrator) cannot be located or are unable to communicate, the FSW will, after exercising due diligence, document efforts to locate or communicate with required parties and proceed with the child maltreatment investigation.
The Investigative Supervisor will:
PROCEDURE XIII-A6: Name Removal from Child Maltreatment Central Registry by an Adult Offender's Request
REMOVAL CRITERIA
An adult offender is defined as a person age 18 years or older at the time of the act or omission that resulted in a true finding of child maltreatment.
An adult offender may request his or her name be removed from the Child Maltreatment Central Registry when:
However, the adult offender may not request removal from the Child Maltreatment Central Registry if any of the following apply:
* Abuse with deadly weapon
* Bone fractures
* Brain Damage/Skull Fracture
* Burns/scalding
* Immersion
* Inadequate supervision - children less than 6 years of age
* Interfering with a child's breathing
* Internal injuries
* Malnutrition
* Oral sex
* Poison/noxious substances
* Presence of illegal substance in child or its mother at time of birth resulting from mother's knowing use of the substance
* Sexual exploitation
* Sexual penetration
* Shaking a child age 3 or younger
* Striking a child with a closed fist
* Subdural hematoma
* Suffocation
A.C.A. § 12-18-908 allows the types of maltreatment that may be considered for removal to be set at the discretion of the Director of the Department. However, these can only be changed through normal promulgation after a special review by the House Interim Committee on Aging, Children and Youth, Legislative and Military Affairs and the Senate Interim Committee on Children and Youth [A.C.A. § 12-18-908 ]).
Finally, per A.C.A. § 12-18-908, I f an adult offender is found guilty of, pleads guilty to, or pleads nolo contendere to an act that is the same act for which the offender is named in the Child Maltreatment Central Registry regardless of any subsequent expungement of the offense from the offender's criminal record, the offender shall always remain in the Child Maltreatment Central Registry unless the conviction is reversed or vacated.
APPLICATION FORMAT FOR AN ADULT OFFENDER
An application for name removal from the Child Maltreatment Central Registry shall conform to the following:
DETERMINATION OF NAME REMOVAL REQUEST BY AN ADULT OFFENDER
The Child Maltreatment Central Registry Review Team will consider requests for removal of names from the Registry. In determining whether or not to remove an offender from the Child Maltreatment Central Registry the Review Team shall consider any relevant evidence, which may include, but is not limited to the following:
If the child maltreatment type is in the removal-by-request category, and the adult offender has not had a subsequent true report of this type for one year and more than one year has passed since the offender's name was placed on the Child Maltreatment Central Registry, he will have a right to a review of the case.
If the Review Team denies the request-for-removal of the name from the Child Maltreatment Central Registry, the Review Team shall send a denial letter to the adult offender explaining the reason for denial as it relates to:
The adult offender shall wait one year from the date of the request for removal before filing a new petition with the Division requesting the offender's name be removed from the Child Maltreatment Central Registry. However, if the Review Team needs additional information from the adult offender in order to make the determination as to whether to remove his or her name from the Child Maltreatment Central Registry, the Review Team may request that the adult offender provide the additional information without requiring the adult offender to wait an additional year to file a new petition. The Review Team shall inform the adult offender in writing of the specific additional information requested. The adult offender shall have ten (10) calendar days from the date of the request to submit the requested additional information. If the request is sent via mail, the adult offender shall be given an additional three (3) calendar days to submit the information. If the requested information is not submitted within the specified timeframe, then the adult offender shall wait one year from the date of the request to file a new petition requesting his or her name be removed from the Child Maltreatment Central Registry.
If the Review Team denies the request-for-removal of the name from the Child Maltreatment Central Registry, the adult offender may request an administrative hearing within 30 days from the receipt of the Division's decision.
EXCERPT: POLICY II-D: Investigation of Child Maltreatment Reports
INVESTIGATION CLOSURES AND DETERMINATIONS AND RESULTING REFERRALS AND CASE OPENINGS Within the appropriate timeframes outlined above and utilizing PUB-357: Child Maltreatment Determination Guide as a reference where applicable, the Department will either:
Criteria for the administratively closed investigations and child maltreatment determinations are as follows:
Administratively Closed
A child maltreatment investigation will be administratively closed without further action or determination if:
Unsubstantiated Determination
A child maltreatment investigation will be determined unsubstantiated in the event that:
True Determination
A child maltreatment investigation will be determined true in the event of:
If a report is determined to be true, the names and conditions of any minor children of the alleged offender, and whether these children have been maltreated, or are at risk of maltreatment, will also be determined unless the investigating agency has determined that there is no indication of risk to the children. If the report is determined to be true, and is a report of sexual abuse, sexual contact, or sexual exploitation, an assessment of any other children previously or currently under care of the alleged offender, to the extent practical, and whether these children have been maltreated, or are at risk of maltreatment, will be conducted unless the investigating agency has determined that there is no indication of risk to the children. The worker conducting the investigation shall also seek to ascertain all other relevant data.
If a report is determined to be true and involves any children under the age of three, those children must be referred to the Division of Developmental Disabilities Children's Services for an early intervention screening per the Child Abuse and Prevention Treatment Act (CAPTA) if the children were not already referred during the course of the investigation (see Policy II-I: Early Intervention Referrals and Services and related procedures for more information).
If a report of sexual abuse is determined to be true and the alleged offender is under the age of eighteen (18) at the time the act or omission occurred, the parents or legal guardians of the alleged juvenile or underaged juvenile offender and victim shall be provided with a list of mental health professionals or agencies available to evaluate and treat the alleged juvenile offender or underaged juvenile offender and victim, if necessary. Providing this information does not necessarily require the Division to pay for the mental health evaluation or any subsequent mental health treatment or services.
If a child maltreatment report is determined to be true, the Division will then also determine the risk level of the offender and any vulnerable population to which the offender may pose a risk of maltreatment, including without limitation children, the elderly, persons with a disability, and persons with a mental health illness. The following factors will be considered when determining whether an offender poses a risk of maltreatment to a vulnerable population:
If the Division determines the offender poses a risk to a vulnerable population, the investigative determination will continue to be documented as True, and the offender's name will be placed in the Child Maltreatment Central Registry. If the Division determines the offender does not pose a risk to a vulnerable population, the investigation determination will be documented in the Division information system as Exempted-No Risk. The DCFS Director or designee will approve determinations for true but exempted for no risk to vulnerable populations.
True but Exempted Determination
A determination of true but exempted, which means the offender's name will not be placed in the Child Maltreatment Central Registry, will be entered for the reasons listed below. The following circumstances do not require a consideration of the risk level of the offender and any vulnerable population to which the offender may pose a risk of maltreatment as these conditions warrant a determination of True But Exempted pursuant to A.C.A. § 12-18-702. The Division may open a protective services (i.e., in home or foster care as appropriate based on the dynamics of a particular family) for any investigative determination of true but exempted.
Garrett's Law Exemptions
A child maltreatment investigation that documents the presence of an illegal substance in either the bodily fluids or bodily substances in the mother or child at the time of birth resulting from the mother knowingly using any illegal substance (i.e., Garrett's Law case) will be found true but exempted and will not be placed on the child maltreatment registry. A protective services case shall be opened to establish a plan of safe care.
If the FSW determines on an individual basis the child's health or physical well-being is in immediate danger, he or she should take the newborn into protective custody. The FSW must also assess any siblings of the newborn or other children under the care of the alleged offender. If it is determined that there is an immediate danger to the siblings' (or any other children under the care of the alleged offender) health or physical well-being, then they must also be brought into emergency 72-hour protective custody.
"Acceptable" reporters include any one of the following mandated reporters, who have reasonable cause to suspect that a newborn has been subjected to an illegal substance before birth or the mother had an illegal substance in her bodily fluids or bodily substances at the time of the birth:
* licensed nurse;
* osteopath;
* physician;
* medical resident or intern;
* surgeon;
* hospital social worker;
* or, any medical personnel who may be engaged in the admission, examination, care or treatment of persons in hospitals or similar medical settings.
During the course of an investigation, or when DCFS has custody, if the mother or newborn has tested positive for the presence of an illegal substance in the bodily fluids or bodily substances, and the mother indicates that she wants to place the newborn for adoption through a private agency or private entity, the Family Service Worker must contact OCC immediately. If the infant is placed with a private adoption agency, then do not open a Protective Services case.
Religious Belief Exemptions
A child maltreatment investigation will be determined to be true but exempted due to religious beliefs exemption in the event that the Family Service Worker (FSW) determines that the parent's decision to withhold medical treatment was based solely upon a religious belief, choosing instead to furnish the child with prayer and spiritual treatment in accordance with a recognized religious method of healing by an accredited practitioner.
An FSW will place a child whose health or physical well-being is in immediate danger in a safe environment in DHS custody regardless of the beliefs of the parents. The religious exemption does not preclude the FSW's right and responsibility to take appropriate action, including petitions to the court, to obtain necessary medical services.
Underaged Juvenile Offender Exemptions
A child maltreatment investigation will have an individual finding of true but exempted for underaged juvenile offenders if there is an overall true finding of sexual abuse by a child under the age of 14 to another child.
Juvenile is Less than Fourteen Years of Age Exemption
A child maltreatment investigation will have an individual finding of true but exempted if an offender is a juvenile less than fourteen years of age.
Inactive Determination
Per A.C.A. § 12-18-619, a Child Maltreatment Investigation will be determined inactive if at any time before or during the investigation the Department is unable to locate or identify the alleged offender because the alleged child maltreatment occurred:
Failure to complete the investigation within the required 45 days is NOT a reason to place a case on inactive status. The report MUST document why the investigation could not be completed. A case will remain on inactive status for one year, at which time it will be expunged.
