In conducting its investigation, the Committee held two days of hearingsduring which it received testimony from the general public. Many individuals and organizations shared their experiences with and opinions about DCYF. Overall, the public testimony reinforced the importance of the primary DCYF mission, the protection of children. But with the affirmation of its charge, came some criticism of the way DCYF carries out its mission.
In addition to the public comment, the Committee received three days of testimony, along with ample supporting documentation, from the Division of Children, Youth and Families. This information was very helpful in understanding the policies and practices currently employed by DCYF.
Finally, the Committee took testimony from judges representing both the District Court and the Family Division where neglect and abuse cases are heard. They were helpful in explaining the integral role of the Courts in administering the Child Protection Act.
The following represents a compilation of findings made by the Committee as a result of its review of DCYF field activities.
To fulfill its statutory responsibilities under RSA Chapter 169-C, the Child Protection Act, DCYF adopts specific policies, promulgates administrative regulations and employs operational procedures to protect the health, safety and welfare of children. The question addressed by the Committee is whether, in implementing those policies, regulations and procedures, DCYF adequately and appropriately respects the rights of parents and families.
The mandatory reporting statute (RSA 169-C: 29) requires all persons to report when they have any reason to suspect that a child has been abused or neglected. At present, DCYF is receiving approximately 12,000 reports per year.
Seven percent of all reports are generated by anonymous sources. The 12,000 reports of suspected abuse or neglect are processed by workers at the Central Intake Unit who create a file within the DCYF computer system, NH Bridges. The file includes information taken from the reporter, including the name of the child and the name of any alleged perpetrator.The intake worker may also do some further investigation, including contacting third parties, such as school officials or physicians to obtain additional information, verify facts or corroborate allegations.
The intake worker considers the substance of the allegations, evaluates thecredibility of the reporter and checks to see if there was any prior report.The intake worker then makes a decision as to whether to refer the report to a district office for assessment. Roughly half of all reports are screened out by intake workers. If the intake worker elects not to refer the report, then there is no further investigation, but the information file whichhas been accumulated is retained by DCYF for a period of one year.&n No notice is sent to parents or legal guardians that a report was made, that a file is being kept, or that third parties may have been contacted. If another report is received with regard to the same child, family or alleged perpetrator, the stored computer file is reviewed and the information contained therein is used in determining whether to make a referral to a district office for assessment.
A referral to a district office is assigned to an assessment worker. The assessment worker is required to investigate the report and to make a determination within sixty days as to whether the allegation of abuse or neglect is founded. The investigation usually includes a field visit to the child’s home. It might also include meetings or interviews with the child, parents, relatives, school officials, physicians or other professionals.&The assessment worker is required to commence the investigation within 72 hours; if there is a high level of risk, within 24 hours.
The time limit for completing determinations is not being met. The Department acknowledges that only 19% of determinations are reported as completed within sixty days. On the average, it takes more than six months for an assessment worker to report a completed determination.
Assessment workers have large case volumes. They also have a variety of job responsibilities which require them to be in the office and prevent them from doing field work. Because of the level of activity, they often find themselves unable to return telephone calls. Public testimony indicated that families and individuals subject to investigation often find it difficult to communicate with assessment workers.
DCYF has recognized the need to improve its performance in meeting assessment standards and in improving communications with interested parties. However, it argues that the main encumbrance is the lack of adequate staffing. It contends that until sufficient funding and staffing are available, the problems willcontinue. The Commissioner of Health and Human Services testified that he is currently fortifying the DCYF staff through internal transfers.
To be subject to an outstanding allegation of abuse or neglect is a traumatic event for most families. Some cases drag on far too long waiting for DCYF to complete its investigation and to make a determination. In some cases, DCYF is unable to complete its investigation and closes the case without a finding. Testimony was received from some individuals that they were never informed when the investigation was complete, when the determination was made, or when the case was closed.
Cases involving possible criminal conduct are immediately referred to law enforcement officials. Assessments in such cases are sometimes put on hold while law enforcement officials conduct their investigations There is no statutory requirement that DCYF delay its determination pending a law enforcement investigation or prosecution. The process for each is quite different. DCYF adjudication is a civil proceeding with a simple “more likely than not” standard of proof; while law enforcement prosecution is a criminal proceeding with a “beyond a reasonable doubt” standard. In addition, the application of the rules of evidence vary greatly in the two proceedings, being substantially relaxed in the DCYF adjudication.
RSA 169-C: 38, IV authorizes law enforcement personnel or DCYF employees to interview a child in any public place, including but not limited to a school or child care agency, without notifying the parents of the child if there is reason to believe that the child has been abused or neglected. While statutory law requires that such interviews be videotaped if possible, DCYF testified that it was not commonly videotaping due to lack of equipment. The statute also requires that such interviews be taped in their entirety. Despite DCYF directions to the field that an interview begins the moment the child comes into the room, testimony was received from some individuals who believe the recording includes only the formalquestions and not the initial rapport building or preliminary inquiries.
When a founded determination is made, DCYF identifies the person or persons apparently responsible for the abuse or neglect. DCYF interprets the Child Protection Act to mean that services can only be provided to children if there is an identified perpetrator.
This policy means that whenever possible, someone must be found responsible, even when such a finding may be counter productive. For example, parents who ask DCYF for assistance in caring for their children risk having themselves identified as perpetrators. In some cases, this policy may have a chilling effect.
Ex Parte orders are sometimes obtained by DCYF workers in order to have a child, parent or other family member immediately removed from a household before formal court proceedings have begun. Testimony was received that Ex Parte orders are requested in some cases by DCYF workers, despite the fact that parents may be available to attend.
DCYF makes a determination of abuse or neglect and identifies the alleged perpetrator(s). Only about one in every seven referrals to an assessment worker results in a founded determination. Any alleged perpetrator is then given an opportunity to challenge the finding before his or her name is entered onto the Central Registry. Depending upon the county in which the case is brought, such challenges are heard in either the District Court or the Family Division, pursuant to RSA Chapter 169-C: 18. In the alternative, some challenges, are directed by DCYF to an administrative proceeding conducted by the Department of Health and Human Services instead of the District Court or Family Division. These hearings, referred to as "Bagley Hearings," are generally held when the primary purpose is to adjudicate whether a person is a perpetrator.
To avoid adjudication, alleged perpetrators frequently enter into Consent Orders. A Consent Order is an agreement between an individual and DCYF regarding action to be taken to correct alleged abuse or neglect. At present, DCYF requires that every Consent Order include an admission by the individual that he or she has abused or neglected a child. Testimony indicated that Consent Orders involve a quid pro quo. If an individual acknowledges responsibility, DCYF will then agree to a particular corrective plan. The alleged perpetrator will not have an adjudicatory hearing but the plan will be subject to Court supervision. The acknowledgment of responsibility results in the inclusion of the individual's name on the Central Registry for seven years. This may affect the individual's ability to be employed in professional capacities involving children. There remains a substantive question as to whether the effect of entering into Consent Orders is adequately explained to and understood by the individuals who are signing them. Testimony indicated that Consent Orders were sometimes entered into as a means of receiving services for children.
The Child Protection Act, RSA 169-C: 14, substantially limits the persons who may attend an adjudicatory hearing, specifying parties, witnesses, counsel and agency representatives. Even family members, including grandparents, aunts, uncles and siblings are automatically excluded unless expressly permitted by the Court.
RSA 169-C: 25 requires that all information concerning a hearing must be kept confidential. Any person who discloses such information is guilty of a misdemeanor. While this law is intended to protect the privacy of individuals, its practical effect is to reduce public scrutiny of government agencies such as DCYF and the court system.
Appeals may be taken from the District Court and from Bagley Hearings to the Superior Court for a de novo proceeding. This affords any aggrieved party the opportunity to have a second objective judicial review. The Family Division, which operates only in Grafton and Rockingham Counties, does not allow the extra protection offered by an appeal to the Superior Court.
The computerized case management system used by DCYF, NH Bridges, was adapted from a system in use in Oklahoma. While in the long term, NH Bridges may prove invaluable in processing reports and creating a reliable database, at this time, it has many flaws. It is slowly being modified to fit the ; operations of DCYF. In the meantime, DCYF employees are inconvenienced by NH Bridges. Instead of making the job easier, NH Bridges appears to be taking valuable time away from assessment workers. DCYF has acknowledged that NH Bridges may require the addition of some clerical staff.
Pursuant to RSA 169-C: 35, individuals who are named as perpetrators in founded cases have their names placed on a Central Registry for a period of seven years. The length of time during which one's name appears upon the Registry is the same, regardless of the severity of the abuse or neglect, or whether any corrective action is undertaken. Individuals who were simply accused in unfounded cases do not have their names placed on the Central Registry, but have their files retained for a period of three years, regardless of whether there was any substance to the original allegations or whether they pose any legitimate danger to the health, welfare or safety of children. A check of the Central Registry is required for foster parents, child care workers, and HHS employees who work with children. In addition, schools require a check as a condition of employment. The information about individuals who were alleged perpetrators in unfounded cases, which is stored for three years, may be used by DCYF in making future assessments.
Fighting an allegation of abuse or neglect in the Court system is overwhelming for most people. Some may be eligible for Court-appointed counsel provided pursuant to RSA 169-C: 10, II. However, those legal services are still subject to reimbursement. Others may not qualify for court-appointed counsel but still do not have the financial ability to obtain legal representation.Others are intimidated by the Court proceedings and are fearful of the prospect of losing custody of their children.
DCYF arranges placement of children in foster homes and other temporary care facilities. Concerns were raised in the public testimony regarding the screening of foster parents and the quality of homes or facilities in which some children are placed. While it would appear that most foster homes or temporary care facilities provide a safe haven for children, there have been
DCYF also relies upon licensed and certified third party providers to supply specialized services to abused or neglected children. To the extent that those providers are relied upon to treat, house, educate or otherwise care for children placed in their care, they must be appropriately qualified. The Committee received testimony that in some cases, qualified providers are not properly compensated for their services, and that payment for such services is not consistently made in a timely manner.
People who feel aggrieved by the conduct of DCYF field activities express frustration because they do not know where to turn. The Department of Health and Human Services maintains an Office of Ombudsman. Most people are not aware of the Office of Ombudsman or how it is to be contacted. Further, the Office of the Ombudsman is not an avenue of appeal. Attempting to contact someone higher in the DCYF organization can also be frustrating. When political representatives are contacted by aggrieved individuals, the representatives are prevented from becoming involved unless the constituent signs a release authorizing the agency to speak with the representative. The Court is not a realistic avenue of appeal. It is focused on the adjudication process, not on the conduct of DCYF field personnel.
Based upon the above findings, the Committee makes the following recommendations:
1.Shorten The Time Required To Make Determinations.
The sixty day assessment period is too long. The delay in making determinations actually creates more work for assessment workers and generates a negative perception of DCYF. Since only one in seven field assessments results in a positive finding, it would appear that most cases can be investigated and a determination reached within a much shorter period of time. DCYF must meet the 60 day requirement.The Department should develop a plan to meet the standard and to make sure that cases are not subjected to delay, regardless of cause.
2. Narrow The Scope Of Responsibilities Of Assessment Workers.
It is clear that assessment workers have too many tasks to complete in the limited time which is available to them. They find themselves in the office tied to the computer or the telephone. It is not simply a matter of the number of cases. It has as much to do with the scope of their responsibilities. DCYF should redefine their job descriptions so that they can focus on field activities and providing services to children in need.
3. Improve Communications With Parents And Families.
A consistent theme heard throughout the public testimony is that DCYF does a poor job in communicating with families and parents. Telephone calls go unanswered. People call district offices only to talk with machines. DCYF should consider an "inside/outside" concept where assessment workers in the field are supported by an inside worker who can update the computer, process the paper and provide appropriate and courteous responses to inquiries.
4 Videotape Interviews In Their Entirety.
Pursuant to RSA 169-C: 38, V, if interviews with children are to be used in subsequent abuse and neglect proceedings, those interviews should be videotaped in their entirety. If law enforcement officials wish to interview children separately or in a different manner, that should be their prerogative. If DCYF does not have the equipment necessary to conduct videotaped interviews, it should seek a capital appropriation from the New Hampshire Legislature, asking that it be made a priority.
5. Limit Ex Parte Proceedings. There are certainly occasions when Ex Parte proceedings are necessary in order to protect the interests of children. Unless there is an immediate risk of harm to the child, such proceedings should not occur when parents are available and willing to participate. The Court should not assume that because an Ex Parte order has been requested that the parents are unavailable. In every case the Court should inquire of DCYF as to what efforts were made to have the parents attend.
6. Allow For Abuse Or Neglect To Be Found Without Identifying A Specific Perpetrator.
The purpose of RSA Chapter 169-C is to protect the health, safety and welfare of children. The Child Protection Act requires that the Court make a determination whether a child has been abused or neglected. It does not require that a finding be made as to a specific perpetrator. However, in implementing the Act, DCYF has become focused on identifying perpetrators in every case. Because of this focus, some of its available resources are directed toward identifying perpetrators as opposed to providing services to children. In cases where parents or other individuals pose a continuing threat to the health, safety or welfare of children, it is quite appropriate that those parents or individuals be identified and aggressively prosecuted. However, in cases where children can be appropriately protected and receive services without identifying a perpetrator, it should be allowed. Therefore, RSA Chapter 169-C should be amended to make it clear that DCYF can provide services to children without having to determine whether a parent is at fault. SB 74, Laws of 2001, Chapter 0279.
7. Build Protections Into Consent Orders. In keeping with the recent Supreme Court ruling, before approving any Consent Order, the Court should consider the intimidating legal environment and the threat that a parent may perceive of being separated from his or her children or family.The Court must make sure that any such agreement is free from coercion. Where there is an admission of responsibility for abuse or neglect, then the Court should pay particular attention to the quid pro quo nature of the agreement.
It would seem that the better practice would be to separate the adjudication of perpetrators from the provision of protective services. Parents or guardians should be allowed to enter into Consent Orders when they are necessary to provide children with protection or services without an admission of responsibility. However, when a perpetrator needs to be identified for purposes of placement on the Central Registry, then it should be through adjudication, independent of the services to be provided to the victim.
8. Separate Civil Proceedings from Criminal Proceedings.
DCYF should make its determination based upon its own investigation. In adjudicating whether abuse or neglect has occurred, it must satisfy a preponderance of the evidence standard. The rules of evidence are not strictly applied in abuse and neglect hearings. Given these facts, DCYF should proceed in a timely manner, independent of any criminal investigation. If it does receive information arising from the activities of law enforcement officials, it can initiate a subsequent proceeding. As long as we consider abuse and neglect hearings, as specified in the Child Protection Act, RSA Chapter 169-C, to be civil proceedings, we should treat them independently from the criminal process. If we are not prepared to do so, we should prosecute alleged perpetrators as criminals and refrain from separate civil prosecution.
9. Change the Presumption of Full Confidentiality.The Child Protection Act, RSA Chapter 169-C:25, presumes that all information discussed or considered in an adjudicative proceeding must be kept confidential. The intent of; the statute appears to be to protect individuals from disclosure of private information. However, the statute, as it is currently construed, is applied both to personal facts as well as procedural matters, and shields both DCYF and the Court from criticism.
There is clearly information which should automatically be prevented from public disclosure, such as psychological reports, medical documents and personal profiles. But, as far as abuse and neglect proceedings are concerned, it should be presumed that they are open to the public unless the Court specifically finds that there is sufficient cause in a given case to prevent public disclosure. Any participant in a proceeding should be able to move and argue that particular information be maintained as private. In addition, the Court should be able to act sua sponte should it determine that the disclosure of certain information would be harmful to a party or any other person. In any event, the process should be opened up so that it will promote greater public confidence. SB 124 (pilot program currently being conducted in Grafton County), Laws of 2002, Chapter 243.
10. Create an Independent Complaint Process.
It is to be expected that decisions made by DCYF will sometimes be subjective and provoke emotional responses. To protect against the arbitrary exercise of discretion by DCYF, determinations are subject to court review. But, it is the actual conduct of DCYF representatives in dealing with some individuals and families, not necessarily their determination decisions, which has generated the greatest criticism. While the protection of children is unquestionably important, it does not justify government action which is discourteous or disrespectful of individual rights. There needs to be some objective recourse for citizens of the State who feel they have been mistreated or have had their rights abridged by the actions of DCYF. A mechanism should be put in place to allow individuals who feel aggrieved by the conduct of DCYF to bring their concerns to an independent and impartial body. A citizen review board should be established for this purpose.
11. Screen Child Placement Facilities Before Removing Children From Homes
DCYF must ensure that any alternative placement provides a safe environment for children. This includes foster homes as well as interim placement facilities. Priority should be given to appropriate placement with relatives consistent with federal law. There is currently a separate study committee investigating this subject matter. In addition, the LBA is conducting an audit of the foster placement program. ; We defer to those activities and make no specific recommendation in this report.
12. Allow De Novo Hearings On All Cases. It is inconsistent to allow de novo hearings from the District Court and from administrative proceedings but not to permit them from the Family Division. This exception should be eliminated so that de novo hearings will be allowed to the Superior Court from the Family Division.
13.; Revise the Central Registry.
The Central Registry serves a valuable purpose. It allows for the identification of individuals who may pose a danger to the health, safety and welfare of children. However, the mechanical way that individual names are placed upon the Registry makes little sense. If someone poses a continuing danger to children, why should their name be on the Registry for only seven years? If someone poses no apparent risk to children, why should their name be on the Registry at all? The Central Registry needs to be revised, but specific recommendations are beyond the scope of this Committee. Furthermore, the file retention policy and the necessity for it should be reviewed. Therefore, it is recommended that the Central Registry and file retention policy of DCYF be studied as soon as possible with the intent of making the contents more meaningful and affording more protection of individual rights. SB 123 study committee, Laws of 2001, Chapter 99 subsequently introduced and passed SB 408, Laws of 2002, Chapter 162 and SB 409, Laws of 2002, Chapter 0111.
14. Upgrade of NH Bridges.
DCYF should make improvements to the NH Bridges system a priority. HHS should fix NH Bridges before it invests in another expensive program. It should include among its capital appropriations for the next biennium any and all monies necessary in order to adapt NH Bridges to fit the needs of DCYF.
15. Fairly Compensate Providers.
If DCYF is going to rely on other organizations or individuals to provide services to children who have been abused or neglected, then it has a responsibility to compensate those providers appropriately. That means paying for the value of the services received. It also means making payment in a timely manner.
16. Identify Necessary Resources.
To the extent that the problems encountered by DCYF are a result of insufficient funding or lack of staff, the Department of Health and Human Services should specifically identify its needs. Child protection services should be given an appropriate priority in relationship to other social service programs. The Commissioner should either re-assign resources in order to supplement DCYF needs or submit a proposal for funding to be addressed legislatively.
The above Findings and Recommendations constitute the final report of the Joint Legislative Committee charged with investigating the field activities of the Division of Children, Youth and Families. While the report is not comprehensive, it is intended to address specific issues raised in the course of the Committee investigation.
DCYF is a creation of the New Hampshire Legislature. It serves a very valuable purpose; to protect the children of this State from abuse and neglect. For the most part, it does a very good job. However, there are areas where improvements can be made. In that spirit, the Committee offers this report in hopes that the agency will view it constructively and that the Governor and Legislature will recognize the need to support DCYF in bringing about some important changes.
Senator Edward Marshall Gordon
Senator Katherine Wells Wheeler
Senator Caroline McCarley
Representative Thomas Arnold
Representative Anne Grassie
Representative Karen Hutchinson
The following recommendation, having not received unanimous support among the study committee members, is offered as an addendum: Notify Parents When Complaints Are Made Whenever a report is made ;to DCYF regarding the possible abuse or neglect of a child, the parents or legal guardians of that child should be made aware of the report. They should be told that file is being kept by DCYF They should also be informed as to what third parties were contacted by DCYF to discuss the alleged abuse or neglect. Senator Edward Marshall Gordon Representative Thomas Arnold< Hillsborough 20
[file: SB 65 FINAL REPORT of Feb. 29, 2000]