Beginning October 5, 1998, county departments of human and social services must notify
persons against whom a substantiated finding of child abuse or neglect has been made that
they have a right to appeal that decision. For persons whose current or future
employment/ability to hold certain licenses will be harmed by this finding, the appeal
process used must comply with the procedure defined in Chapter 68 of the Wisconsin
Statutes. For persons who cannot show that their current or future employment/ability to
hold a license will be harmed by this finding, the Chapter 68 appeal procedure is not
required. However, the opportunity to appeal must be offered and a separate review process
for doing so is described in this memo.
Federal and state laws have recently been enacted which require that persons about whom a child maltreatment substantiation decision has been made under s.48.981, Stats., be allowed to appeal that case finding. The federal Child Abuse Prevention and Treatment Act (CAPTA) requires that persons have access to an appeal process beginning October 3, 1998. (Since October 3 is a Saturday, the opportunity to appeal a substantiated finding must actually be in place Monday, October 5.) In addition, new state law requires background checks for persons operating or working in certain licensed facilities. The background check includes a check for any substantiated child abuse or neglect findings. This law goes into effect October 1, 1998.
The purpose of an appeal is to allow a person affected by a substantiated case finding who disagrees with that finding to have the decision reviewed and to have the opportunity to present additional information. CAPTA requires only that the appeal procedure meet due process requirements. Due process requirements vary depending in part upon the degree of harm that can result to a person as a result of the decision. Persons who are employed or hold a license to provide care for children or patients, or are likely to, have a substantial interest that will be harmed, because state law, effective October 1, allows substantiated case findings to be used to deny such persons employment or receipt/retention of certain types of licenses. In these cases, due process requires a heightened level of impartial review and scrutiny.
Circumstances Where There is the Right to Appeal
Counties must offer a person against whom there has been a substantiated finding of abuse or neglect under s.48.981 the opportunity to appeal the case finding decision if the case record identifies the specific person.
Counties are not required to offer the opportunity to appeal a case finding in the following circumstances:
Counties must offer one of the following appeal processes, depending upon the persons circumstances:
In both appeal processes, the subject of the report must be notified in writing of the decision and that they may have a right to appeal that decision. The subject must also be notified of the right to a fuller administrative hearing (Appeal Process A) in cases where employment or licensure will be affected. Each county agency must designate a person who will decide in each case which appeal process is required. The decision must be committed to writing, with the reasons for that decision, and the appellant must be informed of the decision. In some cases, it will be clear that the fuller administrative hearing process is required because of the persons employment/license status, which the agency is likely to know through its investigation. In these cases, it is reasonable to proceed directly with notifying the person of the substantiation decision and his or her right to appeal through a Chapter 68 procedure.
APPEAL PROCESS A (Chapter 68)
Chapter 68, Stats., defines the municipal administrative procedure. It describes administrative decisions that are subject to review and the process for reviewing those decisions. It is the process used to review a variety of county decisions that may adversely affect a person. Chapter 68, Stats., provides with certain exceptions not relevant here that: "Any person having a substantial interest which is adversely affected by an administrative determination of a governing body, board, commission, committee, agency, officer or employe of a municipality or agent acting on behalf of a municipality as set forth in s.68.02, may have such determination reviewed as provided in this chapter."
The Chapter 68 procedure shall be used in all cases where a person substantiated as having abused or neglected a child notifies the county department that he or she wishes to appeal that finding and one of the following is true:
The following procedures refer to and clarify the municipal administrative procedure of Chapter 68 and how it will be used for substantiated case findings. They are not intended to replace Chapter 68 procedures, but should be used in conjunction with them.
As prescribed in Chapter 68, Appeal Process A is as follows:
Notice [s.68.07 & s.68.08]
The person against whom a case finding of substantiated has been made must be given notice in writing of that finding. Chapter 68 does not give a time frame for providing notice of the initial decision, but due process requires that notice be given in a timely manner. Therefore, counties must notify the person of the substantiation decision by mailing such notice postmarked no later than 21 (calendar) days after signed and dated approval of the decision by the supervisor. In addition, counties must provide notice of the persons right to have included in the record his or her statement concerning the incident(s) or conditions giving rise to the report.
Attached is a model letter to send to a person substantiated as having abused or neglected a child. The letter states that the subject has a right to appeal and describes what the party must do in order to initiate the appeal process. Notification of a right to appeal and how to appeal a substantiation decision is required by law.
Process for Requesting an Appeal
An aggrieved party has 30 (calendar) days from the notice of the substantiation decision to notify the designated person in the agency/county that he/she wishes to appeal that decision. The aggrieved party has a right to written information as to the reasons for the determination. Counties may wish to either include the reasons for the substantiation decision in the notice or furnish that information if and when requested by the party. In both situations, counties may wish to have the written basis for the decision reviewed by the Corporation Counsel, since the written basis for the decision may define what may be presented and contested at an appeal. Section 68.07 states that the aggrieved party has 10 (calendar) days from notice of the substantiation decision to request the reasons for the decision in writing. Regardless of whether the aggrieved party requests reasons for the decision in writing, the request for review or appeal must be made within 30 days of notification of the decision.
Section 68.08 states that the person "shall state the ground or grounds upon which the person aggrieved contends that the decision should be modified or reversed." Counties may wish to send an appeal request form along with the notification of the substantiation decision. If so, the form should contain a section where the person must state their reasons for requesting the appeal and why it is believed the determination was incorrect. Alternately, counties may simply inform the party receiving notice of the substantiation decision where to direct their request for an appeal, which can be in any format, and that their request must include reasons why it is believed the decision should be modified or reversed.
Optional First-Step Review Process [s.68.09]
Section 68.09 provides for a "Review of determination." This step in the process is optional where persons are entitled to a fuller due process hearing under Ch. 68. Counties may wish to use it in order to screen out some concerns that if satisfactorily resolved by this process then may not go to a fuller appeal process. This is essentially a paper review.
Agencies will need a way to inform persons of the options for appeal in a timely fashion when a request for appeal is received. Agencies may wish to develop a written description of their appeal process which can be given to anyone who has been substantiated as a maltreater or to anyone who requests further information.
If counties use this process as a first step, it is recommended that the review be conducted by someone other than the social worker and supervisor who made the original determination. The review must be done within 15 (calendar) days of the request. The aggrieved person may submit written materials for review for this process. Written notice to the person of the results of the review, the reasons for the decision, the right to appeal the decision, the timeframe for requesting an appeal and with whom the appeal shall be filed must be provided.
[s.68.10] The aggrieved person has 30 (calendar) days from the date of the determination, if there is no review of the determination under s.68.09, or from the date of the review of the determination under s.68.09 to request a fuller appeal. Attached is a model form to use for requesting an appeal. This form includes a place for the person to state whether they intend to be represented by counsel and whether they intend to bring any other parties to the appeal hearing. This will assist the county in determining whether to have counsel present. The form explains that although certain persons may come to testify, they may not be allowed to attend the entire hearing and hear what others have to say about the case.
[s.68.11] The hearing must be held within 15 (calendar) days of receipt of the notice that the person wishes to appeal. The county must give the appellant notice of the scheduled hearing date and time by mail or personal service at least 10 (calendar) days before the hearing.
The county must " provide an impartial decision maker, who may be an officer, committee, board, commission or the governing body who did not participate in making or reviewing the initial determination, who shall make the decision on administrative appeal." In addition, those hearing the appeal cannot be involved in any other stage of the case. Each county can make its own decision as to who the decision-maker will be within the limitations under s.68.11. It may, for example, be the agency director or a small panel. The decision-maker and the person who actually conducts the hearing do not need to be the same person. It may be advisable to have one person in charge of conducting the hearing process (swearing in those who testify, taping the proceedings, keeping things on track, etc.) and to have another person or a panel responsible for making the decision so that they can focus solely on the information presented. The person or persons conducting or hearing the appeal must be persons to whom records may be disclosed under s.48.981(7). Persons conducting or hearing appeals are bound by the confidentiality requirements under s.48.981(7).
Witnesses must be sworn in. A record must be made of the proceedings. The proceedings can be recorded by audio or video tape or by a court stenographer. However, if the appeal decision is further appealed to a court, the proceedings must be transcribed for use in the court appeal.
The decision-maker may issue subpoenas. In addition, "An appellants attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence" as allowed by law.
Written Notice of Decision [s.68.12]
Within 20 (calendar) days after the hearing record is closed, the decision-maker must send to the appellant written notice of the final determination and the reasons for that decision.
Right to Judicial Review [s.68.13]
"Any party to a proceeding resulting in a final determination may seek review thereof by certiorari within 30 (calendar) days of receipt of the final determination. The court may affirm or reverse the final determination, or remand to the decision maker for further proceedings consistent with the courts decision." The attached model form notifying the party of the final determination includes information relative to seeking a court review.
APPEAL PROCESS B
(For use when the Chapter 68 appeal process is not required because there is not an employment or licensing interest at stake.)
The person against whom a case finding of substantiated abuse or neglect has been made must be given notice in writing of that finding. Counties must notify the person of the substantiation decision by mailing such notice postmarked no later than 21 (calendar) days after signed and dated approval of the decision by the supervisor. Counties must also provide notice of the right to have that decision reviewed and how the person can initiate the review process. In addition, counties must provide notice of the persons right to have included in the record his or her statement concerning the incident(s) or conditions giving rise to the report.
Process for Requesting an Appeal
An aggrieved party has 30 (calendar) days from the notice of the substantiation decision to notify the designated person in the county that he/she wishes to appeal that decision, unless the county agency extends the time period. The person requesting the appeal must state in his or her request why it is believed the determination was incorrect and should be modified or reversed. The aggrieved party has a right to written information as to the reasons for the determination. Counties may wish to either include the reasons for the substantiation decision in the notice or furnish that information if and when requested by the party.
Optional First-Step Review Process
Counties may wish to use this process in order to screen out some concerns that if satisfactorily resolved by this process need not go to a fuller appeal process. This is essentially a paper review.
If counties use this process as a first step, it is recommended that the review be conducted by someone other than the social worker and supervisor who made the original determination. The review must be done within 30 (calendar) days of the request. The aggrieved person may submit written materials for review for this process and must be advised of the right to do so. Written notice to the person of the results of the review, the reasons for the decision, the right to appeal the decision, how an appeal may be requested, the timeframe for requesting a formal review and with whom the request shall be filed must be provided within 30 days of the review.
If the aggrieved person is not satisfied with the results of the paper review of the case, he or she has 30 (calendar) days to request a formal review. The formal review must be held within 30 (calendar) days of the request and the person given notice of the review at least 10 days before the scheduled review.
The review must be conducted by the director of the county agency or his or her designee. The review may not be conducted by any person involved in making or approving the original decision or any person involved in any other stage of the case. The director may designate a panel to conduct the reviews. The person or persons conducting or hearing the review must be persons to whom records may be disclosed under s.48.981(7). Persons conducting or hearing reviews are bound by the confidentiality requirements under s.48.981(7).
The aggrieved person has a right to appear in person and present information. He or she must also be given the opportunity to submit written information for the review. The aggrieved person must be advised of the timeframe for submitting written information so that it can be included in the review process.
The person or panel conducting the review may determine whether the appearance of others at the review to give information would be relevant to the review and allow or request such persons to appear accordingly. However, the child victim should never be involved in the review, because of the potential for inflicting trauma on the child and jeopardizing the childs safety through the review process.
A record must be kept of the review, either through audio or video tape or by a court stenographer.
Written Notice of Decision
Within 30 (calendar) days after the hearing record is closed, the decision-maker must send to the aggrieved person written notice of the final determination and the reasons for that decision. At the close of the formal review, the aggrieved person may request to submit further written evidence or information.
OTHER ISSUES RELATED TO THE APPEAL PROCESSES
Right of Other Persons to Know the Outcome of an Appeal
When the identified maltreater is not the child victims parent or other person within the family, the family of the child victim must be informed if the identified maltreater files a request for an appeal and advised of the possible outcomes of the proceeding. The parent or guardian of the child victim must also be informed of the final determination of the appeal proceeding.
When a substantiation decision resulting from an independent investigation is appealed, the county conducting the independent investigation will administer the appeal process in order to assure that the original reason for conducting an independent investigation (avoidance of conflict of interest) is not compromised. Details regarding which county should send the first notice of the finding, etc. should be worked out in a written inter-county agreement.
Other Judicial Determinations May Eliminate Need for Appeal
Chapter 68 states that actions subject to administrative or judicial review procedures under other statutes are not reviewable under Ch. 68. [See s.68.03(2).] CHIPS court proceedings result in formal findings as to whether a child has been abused or neglected as defined in s.48.13, but not always in findings that specifically identify the maltreater. If a petition alleges physical or sexual abuse, which may be committed by any person, a CHIPS court finding that a child has been abused is insufficient to substantiate a particular person as a maltreater, unless the findings of fact include identification of such a person. Other CHIPS hearings may by inference substantiate a person as the maltreater. For example, if a petition alleges neglect and if there is only one parent involved, there is only one possible maltreater.
If a CHIPS petition has been filed, and such petition could result in a finding supporting the substantiation decision as described above, an opportunity to appeal may not be required. If the CHIPS court process results in findings upholding the substantiation decision, due process standards may be met. However, CHIPS proceedings sometimes are delayed or held open for an extended period of time. If a person is being denied a license or employment in a facility based on a substantiated county finding and a CHIPS proceeding is not going to be initiated in a timely manner, that person may need to be offered an administrative hearing through Ch. 68. If the court findings do not uphold the substantiation decision and the county department wishes to maintain its substantiated finding naming that person as the maltreater, the aggrieved party must be offered the opportunity to appeal the decision. Since the level of proof needed to uphold a substantiation decision (preponderance of the evidence) is lower than the level of proof required in a CHIPS proceeding (clear and convincing evidence), it is possible to have a substantiated case finding without meeting the level of proof required for a juvenile court finding.
If a criminal court proceeding has been initiated, the county may not need to offer an opportunity to appeal. A criminal court hearing clearly would offer due process and a conviction would uphold the substantiation decision. However, as in the case of CHIPS proceedings, criminal proceedings sometimes are delayed or held open for an extended period of time. If a person is being denied a license or employment in a facility based on a substantiated county finding and a criminal proceeding is not going to be initiated in a timely manner, that person may need to be offered an administrative hearing through Ch. 68.
Use of Substantiated Case Findings Made Prior to the Appeal Right
Substantiated case findings made prior to October 5, 1998 were not subject to an appeal process but remain in county child abuse and neglect records. Over the years, county agencies and the Department have used these records to make decisions related to licensing and certification. The decisions have been based on a thorough review of pertinent information, only one piece of which may be a substantiation decision. Section 48.981(7) allows for disclosure for this purpose, and county agencies and the Department will continue to use the entire record for decision making.
If a person is denied a license or has a license revoked, he or she has a right to due process on that decision through a Ch. 227 hearing conducted by the Division of Hearings and Appeals. That will continue to be the case. If a person is denied a license or has a license revoked, based wholly or in part on a substantiated finding that the person abused or neglected a child made by a county prior to the right to appeal that finding, the person may appeal the licensing decision to the Division of Hearings and Appeals. They need not be offered a Ch. 68 hearing in addition to Ch. 227 hearing.
There may be circumstances in the future in which a person is denied employment based on a substantiated county finding that the person abused or neglected a child made prior to the appeal right. In these cases, the person has a right to appeal the decision as allowed by Ch. 68. Notice of that right should be provided at the time a background check discovers the substantiation. In cases where there was a judicial determination of abuse or neglect which included a finding identifying the person in question as the maltreater, there is no right to a Ch. 68 appeal procedure.
The model letters, forms and notices attached were drafted primarily for Ch. 68 proceedings (Appeal Process A). They may be modified as needed and will generally need to be modified for communication relative to Appeal Process B. It is recommended that county agencies review the attachments and above procedures with their Corporation Counsel to define the specific step-by-step procedures to be used, assure adequate notice is being provided and identify places in the process where Corporation Counsel assistance and review is advisable.