Changes to Law on Child Maltreatment Investigations
The child maltreatment registry is meant to prevent and aid in the investigation of child abuse and neglect. However, we often see the registry serve as an unnecessary form of punishment. Many times, individuals will be found to have committed acts that are considered maltreatment under the law but are clearly not done out of malice and the issue has been totally resolved. We have had cases where all parties, including DHS, agreed that our client was a fine parent and posed no threat to the child or any other children. Yet, under the law, the client’s name had to go on the maltreatment registry.
Fortunately, during the last legislative session the Arkansas lawmakers passed an amendment to the statute regarding child maltreatment investigations and the placement of a name on the child maltreatment registry. Under this new law, before a name can be placed on the registry, DHS must show that not only did some form of neglect or abuse occur but also that the individual poses a present risk.
What is the new requirement?
A.C.A § 12-18-702 (c)(1) now states that when a report of child maltreatment is determined to be true, DHS “shall determine whether the offender may pose a risk of maltreatment to a vulnerable population, including without limitation children, the elderly, persons with a disability, and persons with a mental health illness.”
The statute states that DHS shall consider the following factors in determining whether an offender poses a risk of maltreatment to a vulnerable population:
- The severity of the child maltreatment;
- Nature and severity of an injury or other adverse impact caused by the child maltreatment;
- Access the offender has to a vulnerable population;
- Any previous substantiated child maltreatment findings against the offender;
- A subsequent report of child maltreatment against the offender; and
- The criminal history of the offender.
As with a finding of maltreatment, DHS’s determination of whether an individual poses a risk of maltreatment to a vulnerable population can be appealed to an administrative law judge. On appeal, DHS must now prove beyond a preponderance of the evidence that (1) an allegation of child maltreatment is true and (2) the department did not abuse its discretion in determining that the offender may pose a risk of maltreatment to a vulnerable population. The individual’s name is only to be placed on the registry if DHS meets its burden of proof on both issues.
Why does this change matter?
The short answer is that this change should make it easier for an individual to appeal the placement of his or her name on the registry. Where before it only mattered if the alleged maltreatment was found to be true or not; DHS now has to show that the person poses a risk to a vulnerable population.
The legislature included in its legislative findings several lines of language indicating a promotion of the rights of a parent “to grant his or her children unsupervised time to engage in activities that include  plaint outside, walking to school, bicycling, remaining briefly in a vehicle, and remaining at home.” This new requirement furthers this rationale. The line for maltreatment is not always as clear as one might think. The placement of someone’s name on the registry can be needlessly embarrassing and at times cause a substantial detriment to one’s life (e.g. loss of a job). We have had many cases where our clients have made mistakes, but the DHS investigation revealed that the clients were fine parents and the issues had been addressed. Yet the client’s name still had to be placed on the registry because it only mattered that the maltreatment had occurred. This is no longer the case. There is now an additional burden on DHS. And that burden should allow these types of clients to keep their names off of the registry.