Navigating the DCS Substantiation Process
The Indiana Department of Child Services (“DCS”) is an agency that is designed to protect a child’s welfare. DCS makes the initial determinations and findings on reports of alleged child abuse or neglect. They can either find a case to be “substantiated” or “unsubstantiated.” A substantiated child abuse or neglect report means a determination regarding the status of the report whenever facts obtained during an assessment of the report provide a preponderance of evidence that child abuse or neglect has occurred. An unsubstantiated report means that DCS has determined by a preponderance of the evidence that child abuse or neglect has not occurred.
Burden of Proof
First of all, what does “preponderance of the evidence” mean? The preponderance of the evidence standard means that an event is more likely than not to have occurred. Numerically, even if it is determined you were 51% at fault, the burden is met. It should be noted that this is a much lower burden to meet than the beyond a reasonable doubt standard. Additionally, the original decision is made by an officer with DCS and not a neutral third-party. When you consider DCS’s goal is to protect the welfare of the child, it often times seems like it is not difficult to meet this burden.
Most often, DCS will assign a Family Case Manager to investigate, conduct alleged victim interviews, contact witnesses, and even contact the person accused in an effort to obtain a statement. If you or a loved one is being contacted DCS for a potential interview, it is imperative you contact an attorney experienced in these matters to advise you of all of the potential options.
Possibility for Administrative Review
So say DCS has substantiated a claim against you that you don’t agree with, now what? One potential option is to request an administrative review of the substantiation. A request for administrative review must be submitted and received by your local DCS office within 15 calendar days after the notice of substantiation was delivered to the accused. When you petition for administrative review, the hearing is conducted by a DCS local office director, a DCS local officer deputy director, a DCS local office division manager, or the DCS regional manager. As you can see, even an administrative review is conducted by someone out of the DCS office so it is imperative you have an attorney that can best represent your position. If a court in a Child in Need of Services case determines the report of child abuse or neglect properly substantiated, there is not right to appeal.
Possible Penalties for DCS Substantiation
If you do get substantiated against, the possible penalties you could be looking at include being prevented from adopting a child, being declined the ability to participate in primary and secondary school activities (such as volunteering or chaperoning for field trips), and the revocation of a teaching license or ability to work in a childcare facility.
Expungement of DCS Substantiation Records
After substantiation, one final form of relief could come through an expungement. Whether the claim was substantiated or unsubstantiated, DCS will have a file concerning the incident of child abuse or neglect. The way to remove and delete all information maintained by DCS regarding the case is through an expungement. This includes all documents, photographs, video tapes, audio recordings, and any other material kept on the case.
There is not a minimum waiting period to file for expungement. Some factors the court will consider in granting the expungement include:
- The best interests of the child;
- The age of the accused during their contact with the juvenile court or law enforcement agency;
- The nature of any allegations;
- Whether there was an informal adjustment or adjudication;
- The manner in which the accused participated in any court ordered or supervised services;
- The duration of time which the person has been without contact with juvenile court or with any law enforcement;
- Whether the person have acquired a criminal record.
Additionally, the petitioner must prove by clear and convincing evidence that there is little likelihood that the petitioner will be a future perpetrator of child abuse or neglect and the information has insufficient probative value to justify its retention in the records of DCS for future reference. When filing an expungement, DCS needs to be properly served and given a summons. Additionally, the court will order a hearing on the petition unless the parties agree otherwise. As you can see, it is important to have an attorney experienced in drafting petitions for expungements and someone who is persuasive and willing to go to bat for you at a hearing.
The Indianapolis Attorneys at Banks & Brower, LLC can help you navigate a possible DCS substantiation or help you meet the requirements to gain an expungement of a previous DCS substantiation. We are available 24/7/365 for your questions. Give us a call today at (317) 870-0019.