Wednesday, June 3, 2015

When DHHS investigates abuse or neglect of a child, it makes a decision that can have a serious effect on you


When DHHS investigates abuse or neglect of a child, it makes a decision that can have a serious effect on you. There are three things DHHS can do: go to court to get an Order removing the child from your care; "substantiate" you for abuse or neglect; or "indicate" you for abuse or neglect. A "substantiation" decision means DHHS found you were responsible for a child who was severely abused or neglected. DHHS keeps a list of people who have been "substantiated." If you are on this list, you are considered a risk for abusing or neglecting children in the future. The list is used for background checks for jobs (such as child care centers and schools) and state agencies (such as foster care licensing). If you are on the "substantiation" list, you can lose a job or a license. A DHHS investigation can also find that child abuse or neglect was "indicated." This is for less severe cases of abuse or neglect. An "indicated" person is not considered a risk for abusing or neglecting children. Usually, this information is not given out for background checks to employers or for licenses. However, DHHS is sometimes required by law to report that you have been "indicated" to potential employers of state agencies. This information explains how this system works. If DHHS puts you on the list, they have to mail you a written notice within 10 business days (about 2 weeks). The notice must include: Specific findings of abuse or neglect A summary of the evidence used to "substantiate" or "indicate" you Information about your right to appeal and how and when to do that. Information about legal help with your appeal from Pine Tree Legal Assistance or other legal services To challenge the decision, you must appeal. Your deadline to appeal is 30 days after the day you get the notice. If DHHS sent you the notice by certified mail and you refused delivery, your deadline is 30 days after the day you refused delivery. If DHHS sent you the notice by regular mail to your last known address, the appeal period ends 33 days after the notice was mailed, unless the notice was returned to DHHS as "undeliverable." If you miss the appeal deadline, it is possible to file a late appeal if you can show "good cause." You must show "good cause" within 90 days of when DHHS sent the notice to you. You must appeal in writing. The notice gives you a DHHS address in Augusta, to mail or hand deliver your appeal. Your appeal can be a simple letter that says you disagree with DHHS's decision and that you are appealing. DHHS must get your letter within 30 days after you get the notice. Get a sample appeal letter here. (Step 1: Paper Review) If your appeal is late, DHHS will refuse your appeal. In that case, you can try to appeal DHHS's refusal based on "good cause," but it is best to mail your appeal in plenty of time in the first place. (If it is too late to mail your letter, you can try faxing it to DHHS at 287-5282. Keep a record of when the fax was sent. You may also want to call DHHS, to make sure they received your letter.) If you miss your appeal deadline, and you do not have "good cause" for being late, you have no right to any appeal in the future. You will remain on the list forever. Exception: If you are under 18 when you are "substantiated," you can appeal at any time before you turn 25, if you have not already had your appeal earlier. What will happen after I file my appeal? Step #1 Paper Review First a DHHS "reviewer" will look over your record to decide if DHHS made a mistake. The reviewer must be someone who has not been involved in your case. The "reviewer" must consider any new information you provide. You have 30 days from the day DHHS got your appeal letter to send in new information. This can be your own statements of fact, statements of others, and written arguments. Your statement should be a short, direct response to the facts DHHS gives in the notice, especially if you have not looked at the DHHS case file. After you look at the case file, you should have a better idea of the claims being made against you. Looking at the case file will help you prepare more specific, relevant responses. (More about reviewing your file.) The reviewer must send you a decision within 65 days after DHHS got your appeal letter. The review can uphold a "substantiation" or "indicated" decision. The reviewer can change a "substantiation" to "indicated." The reviewer can find no abuse or neglect. Step #2 Administrative Hearing For people who are "substantiated": If you are still "substantiated" after the paper review and you disagree with the reviewer's decision, you can ask for an administrative hearing. You must file your appeal, in writing 30 days after you got the reviewer's decision. If you expected to suffer "imminent legal harm" (like losing your job) before the hearing can be held, you can ask the Hearing Office to speed up your appeal. Include with your appeal facts supporting your request to speed up your appeal, such as information that: you are about to be fired or refused a job, you are losing or being denied a license or government benefit, you are being expelled or denied admission to an educational program you are being deprived of "life, liberty, or property" Get a sample substantiation hearing request letter here. You will get a notice from DHHS giving the date, time and place of your hearing. For people who are "indicated" If the paper review finds that you are "indicated," you cannot appeal. DHHS is not allowed to tell anyone that you are "indicated." But if DHHS gives out information about you, and you are harmed or may be harmed (lose a job or license, get expelled from school, or are deprived of "life, liberty or property") you can then have a hearing to appeal the "indicated" decision. For example, if DHHS told your employer you were "indicated" and you think you will lose your job, you can appeal the "indicated" decision. You must file your appeal, in writing, within 60 days after you learn or should have learned about potential harm to you. If you do not file an appeal within 60 days, you will lose your right to appeal. Get a sample hearing request letter for harm due to indication here. If DHHS finds that your information may have been released and you are at risk of losing your job or other harm, they will hear your appeal and could overturn your "indication. You will get a notice from DHHS giving the date, time and place of your hearing. How do I know what evidence is being used against me? The notice DHHS sends to you is only a summary of DHHS's findings. The notice is based on your case record. You have a right to see your case record, so that you know what is being said about you and your case. But DHHS can withhold "privileged records." These records that DHHS "reasonably believes would increase the risk of harm to a child" if you saw them, or are private under other laws. Contact DHHS to set up a time to look at your record as soon as you get notice you have been "substantiated" or "indicated." You should do this before you file reasons for your appeal so that you know exactly what information is being used against you. If you can't look at your record before the appeal deadline, you can send a short letter of appeal, without stating any reasons. Then look at your record before your hearing so that you can be well-prepared to respond to the charges. Set aside plenty of time to look at your record and to take notes. If you run out of time, you can set up another time to finish looking at your record. You can also ask DHHS, in writing, to send you a copy of your record. You should ask for a copy of your record in your appeal letter. You can also ask for a copy of your record up to 10 days before your hearing. DHHS must send you what it beleives are the important parts of your record 3 days before the hearing. But DHHS does not have to send you the whole record. If you do not get these records at least 72 hours (3 days) before your hearing, you can ask the Hearing Officer for a "continuance" of the hearing. This delays the hearing until you have had the chance to review the DHHS records and prepare a defense. What happens at the hearing? At the hearing, you can testify and present relevant evidence. You can have witnesses with first-hand knowledge of the facts. You can ask a witness to come, or you can ask the hearing officer to force someone to come by giving a subpoena for a witness. If you think you need to have any witnesses subpoenaed, contact the Chief Administrative Hearing Officer as soon as you know you need a subpoena. It can take weeks to get the subpoena approved and served on the witness. If you want a caseworker or DHHS officer to testify on your behalf, you must request their presence in writing at least 10 days prior to the hearing. Children are not allowed to testify (except for a child who has been "substantiated"). However, you can use oral or written statements of a child, including the sworn affidavit of a child, as long as the child did not make the statements just for use in your appeal. Also an adult can testify to what he has heard a child say or seen a child do. If you want to know more about hearing procedures, or the "substantiation" notice and appeal rules, ask DHHS and they must give it to you. If you have papers you want the hearing officer to read--such as a child affidavit or a doctor's statement--you must give copies to DHHS 72 hours before the hearing, and you must bring extra copies of the papers to the hearing. Any other papers you plan to use in your appeal must also be given to the DHHS representative handling your case before the hearing. The hearing notice may set the deadline for giving DHHS your papers. If not, you have to give DHHS your papers at least 72 hours before the hearing. It is a good idea to make an outline of the things you want to say and evidence you want to present. Include questions you want to ask your own and DHHS's witnesses. Include points you want to make to prove to the Hearing Officer that you did not abuse or neglect a child. This will help you to remember all of the facts and points you want to make. (If you file a court appeal later on, the court will rely only on this hearing record.) After the hearing, the DHHS hearing officer will mail you a copy of her decision. What if I lose the administrative hearing? You can appeal to the Maine Superior Court. You must file your appeal with the court within 30 days of getting the decision. This would be difficult to do without a lawyer. Seek legal help right away. What if I have a Court case about the same issues? If you have a Court case in Maine or any other state about the same issues, DHHS will not decide your appeal. Even though they will not decide your appeal, you must file the appeal! You have 60 days after the Court case ends to tell DHHS that you now want your appeal with them to go forward. If you do not tell DHHS within 60 days, you lose your right to a paper review or an administrative hearing. If the Court found you abused or neglected a child, or put a child in jeopardy, you might not have a right to a paper review or administrative hearing. Can I get help with any of this? You have the right to have a lawyer at any time during the DHHS appeal process. If you cannot afford a lawyer, Pine Tree Legal Assistance may be able to help you. Although we cannot take all of these cases, we will consider taking your case if: you are the victim of domestic violence and you were substantiated for failure to protect your child; you are a parent with a mental illness; or you stand to lose a professional license or job due to substantiation Updated August 2009 http://ptla.org/child-abuse-and-neglect-substantiation-and-indication-maine# Pine tree legal Assistance