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_-DFS Contested Case Hearing Process - courts.state.wy.us

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DFS Contested Case Hearing Process
Wendy S. Ross, Esq., Senior Assistant Attorney GeneralCJP Blog Talk April 17, 2019
DFS Investigation
DFS must initiate an investigation or assessment within 24 hours of receiving a notification of suspected abuse or neglect (Wyo. Stat. Ann. § 14-3-204(a)(iii))DFS must reject intakes where allegations do not meet the statutory definition of abuse or neglect and are not within the scope of Child Protective ServicesOnce a referral is assigned to the investigation track, DFS must inform the alleged perpetrator, child(ren)/youth, and family in writing that a referral has been received and of DFS’s duty to investigate (DFS Child Protection Services Policy 1.3.3)
DFS Investigation
Statement of Abuse/Neglect Allegations (SS-2)Should be sent to the alleged perpetrator within 7 calendar days of the initial interviewNotice of Conclusions (SS-5)Should be sent to the alleged perpetrator within 7 calendar days of the conclusion of the investigationTimeline for InvestigationInvestigations should be completed within 6 months, can be extended with consent of District Manager
DFS Investigation
Independent, administrative processSeparate and apart from juvenile court processBUT the Department must substantiate a report where a court has accepted a criminal plea of guilty or nolo contender or a civil, juvenile, or criminal court has made a finding that the alleged perpetrator committed certain acts that constitute abuse or neglect (DFS CPS Rules, Chapter 2, Section 6(c)(ii))Because it is a separate agency function, the juvenile court process (i.e., consent decree or stipulations) CANNOT require the Department to abstain from placing a perpetrator on the central registry
DFS Investigation
Substantiation occurs when the Department determines that the information and evidence gathered constitutes a preponderance of evidence that the child(ren)/youth was abused orneglectedCriteria:Maltreatment meets the definition of abuse or neglect;Perpetrator is a caretaker, meaning a person responsible for a child(ren)/youth’s welfare (See DFS CPS Rules, Chapter 1, Section 4 for definitions); andSupervisor and District Manager have reviewed the investigation report, concur with the finding, and the District Manager signs the Notice of Conclusions (SS-5)
DFS Investigation
Unsubstantiationoccurs where there is NOT a preponderance of evidence that abuse or neglect has occurredDFS may still offer services to the family even when the Department does not substantiate
Request for Hearing
The SS-5 includes information about how the perpetrator can request a contested case (administrative) hearingA request must be made in writing, to the District Manager, within 20 days of the date of the Notice of Conclusions (for abuse/neglect cases – other timelines apply for different DFS agency actions)The request shall contain:Name, address, and telephone number of the person requesting the hearingName and address of the requesting party’s legal counsel or representative (if the requesting party has retained counsel or a representative at the time the request for hearing is made)
Request for Hearing
An alleged perpetrator is NOT entitled to a hearing if:The perpetrator has been convicted, adjudicated, or there is a finding by a civil, juvenile, or criminal court, or a consent decree, whether by a plea of guilty or nolo contender or a finding of guilt, that the alleged perpetrator committed certain acts that the child protective services defines as abuse or neglect (DFS CPS Rules, Chapter 2, Section 9(d))
Request for Hearing
Informal ConferenceThe Department local office which took action adverse to an individual shall schedule and conduct an informal conference within 7 days of receiving the request for hearingPurpose: to review facts and legal authority on which the Department relied in making the determination to take adverse actionMay be waived by party whose interests have been adversely affected
Hearing Process
RepresentationAll parties have a right to represent themselves, to be represented by a Wyoming-licensed attorney, or any other person chosen by the party to appear on their behalfIf the individual requesting a hearing has a representative or is represented by an attorney payment of attorney’s fees and costs are the responsibility of the individual requesting a hearingThe Department may be represented by the Attorney General’s OfficeFiling of papersDFS maintains the original fileCopies of filed documents should be provided to all parties and the hearing officer
Hearing Process
Time Period for Requests, Evaluation of Requests, and HearingAn alleged perpetrator has 20 days from date of mailing of SS-5 to request hearing, in writingThe Director has 20 days from receipt of request for hearing to evaluate the request and notify the requesting party whether the Director has approved or denied the request for hearingA hearing on an abuse or neglect substantiation must be held within 90 days of the Department action giving rise to the complaint (SS-5)This can be waived by the requesting party, but hearing must be held within one year of the SS-5 date
Hearing Process
Referral to the Office of Administrative HearingsOnce the director approves the request for hearing, the Department refers the case to the Office of Administrative Hearings (OAH) to conduct the hearingReferral is made through an OAH transmittal form
Hearing Process
Scheduling ConferenceOnce OAH receives the transmittal form and the accompanying documents, OAH will usually set a scheduling conference to set a hearing and other disclosure deadlinesThis sometimes does not occur if there are no attorneys involvedUsually conducted by telephone
Hearing Process
DiscoveryRule 26 initial disclosure requirements do NOT apply to cases involving CPS substantiations (because they arise out of Title 14)Depositions and other discovery tools are available (Wyo. Stat. Ann. § 16-3-107(g))WRCP Rules 37(b)(1) and 37(b)(2)(D) are specifically exempted from use in these actions
Hearing Process
Settlement OptionsThe Department has the discretion to informally resolve these matters through a settlement agreementSettlement agreement terms are usually identified to address the conduct that led to the substantiationA settlement agreement may specify that if a perpetrator completes the terms of the agreement, that will be considered good cause for removal from the central registrySettlement agreement terms must be approved by the State DFS office administrators in addition to the local office District Manager
Hearing Process
Pre-Hearing DisclosuresMuch like a pretrial statementOAH will set a deadline for submissionMust include: list of witnesses; statement of specific claims, defenses, and issues; statement of burden of proof; statement identifying any stipulated facts; complete list and copies of all documents, statements, etc. which may be introduced into evidenceFailure to file a prehearing disclosure statement may result in the hearing officer’s striking of witnesses, exhibits, claims and defenses, or dismissal of the contested case
Hearing Process
Pre-Hearing ConferenceMay be held at the discretion of the hearing officerAny party may request a prehearing conference to address issues such as discovery, motion deadlines, scheduling orders, or status conferencesUsually conducted by telephone
Hearing Process
HearingCPS hearings must be conducted in person in the county of originationIf a party requesting a hearing fails to appear, the hearing officer may dismiss the caseEvidenceRules of Evidence do NOT applyPrivilege laws do apply and should be recognized by hearing officerEvidence of the type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs is admissibleHearing officer may take administrative notice of judicially cognizable factsHearing officer may ask questions of any party or witness
Hearing Process
HearingBurden of ProofIs on the Department (in CPS cases)Standard of ProofPreponderance of evidenceRecording of hearingThe hearing officer shall record all contested case proceedings electronically, through the use of a qualified court reporter or any other appropriate means determined by the Department, or hearing officer, as approved by the Department
Hearing Process
OAH DecisionIn CPS cases, the hearing officer must make findings of fact and conclusions of law within 20 working days of the close of the hearing for final determinationMay be extended 10 working days to allow for additional briefingFor CPS cases, the OAH decision is a final decisionFor APS cases, the OAH decision is a recommended decision and the Director makes the final decisionAppealsCan be made in accordance with Wyo. Stat. Ann. § 16-3-114 and WRAP Rule 12
Authorities and References
Wyoming Administrative Procedure Act (Wyo. Stat. Ann. §§ 16-3-101 et seq.)Department of Family Services Child Protective Services Rules (www.rules.wyo.gov)Department of Family Services Contested Case Hearing Rules (www.rules.wyo.gov)Office of Administrative Hearings Contested Case Proceeding Rules (www.rules.wyo.gov)Department of Family Services Child ProtectiveServices Policy (http://dfsweb.wyo.gov/social-services/policy/dfs-policy-manual)Department of Family Services Adult Protective Services Rules (www.rules.wyo.gov)Department of Family Services Adult Protective ServicesPolicy Manual (http://dfsweb.wyo.gov/social-services/policy/adult-protective-services)Child Protective Services Act (Wyo. Stat. Ann. §§ 14-3-201et seq.)Adult Protective Services Act (Wyo. Stat. Ann. §§ 35-20-101 et seq.)

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_-DFS Contested Case Hearing Process - courts.state.wy.us