Kansas uses more rigorous evidence standard for child abuse than other states

BY DEB GRUVER

Kansas is the only state in the country that requires clear and convincing evidence to substantiate an allegation of child abuse or neglect.

That standard could be putting children at risk, some in the child welfare field say.

When the Kansas Department for Children and Families substantiates abuse or neglect, it places the perpetrator on a registry that bans him or her from living, working or regularly volunteering in a child-care facility – including foster homes – regulated by the state Department of Health and Environment.

No other state requires such a high burden of proof, according to “Child Maltreatment 2012,” a study by the Administration for Children and Families, part of the U.S. Department of Health and Human Services.

A survey of states found that most use a preponderance of evidence, a less rigorous standard in which evidence shows it is more likely than not that abuse or neglect occurred.

Kansas used a preponderance of evidence standard until 2004. Since then, it has required clear and convincing evidence that an alleged perpetrator’s actions or inactions meet the legal definition of abuse or neglect.

“It is concerning,” Diana Schunn, executive director of the Child Advocacy Center of Sedgwick County, said of the higher standard now in place.

“It seems odd to me that all of the investigation and services that are done are focused on the child and when we get to the finding, that focuses on the offender and not so much on the safety of the child,” she said.

Brian Dempsey, director of protection and prevention services for the DCF, said the department doesn’t require a substantiated finding to request a child’s removal or to offer services to families.

“Another state may substantiate for the purpose of removing a child from a home or prohibiting someone from fostering children,” DCF spokeswoman Theresa Freed said. “Our effort is for the purpose of prohibiting the person from working in a licensed child care facility. It can't be said enough, so the public understands, recommending a child be removed from a home is not the same as substantiating.”

But because the DCF substantiates so few cases — about 6 percent of all reports of child abuse and neglect — for the purpose of putting people on the registry, the state “could ultimately put children’s safety at risk — not intentionally,” Schunn said.

There are 31,077 people on the central registry, Freed said. To find out if someone is on the registry, you must have the written permission of the person you wish to search. State child welfare agencies making such requests are not required to submit a signed release form.

The Eagle began looking into how the DCF reviews cases in February as part of its “In Need of Care” series, which featured a 14-year-old girl who was kept in a windowless locked basement room.

Her parents, who took her in as a foster child and later adopted her, are accused of abusing the girl from the time she was 9, beating her with a foam hard-core bat and a broken curtain rod. The girl weighed 66 pounds when police removed her from her home in March.

A social worker told a judge that a doctor had diagnosed the girl as a victim of child torture.

Before police removed her and her siblings from their home, the DCF had taken eight previous reports about suspected abuse and neglect. None was substantiated.

The girl’s adoptive parents would not be on the registry because the DCF did not substantiate any of the reports of abuse.

Validated findings

The DCF makes a finding for every report of child abuse and neglect that is assigned to social workers. The finding either is substantiated or unsubstantiated.

The DCF used to have three categories of findings – unsubstantiated, substantiated and validated.

The “validated” finding, which was used from 1997 to 2004, meant the incident was severe enough to add the perpetrator’s name to the registry. Substantiated meant that the evidence showed the incident occurred but wasn’t severe enough to place the person on the registry.

Schunn said she wishes Kansas still had validated as a finding.

“To me, the general public has a presumption that it’s unfounded,” she said of reports of child abuse deemed unsubstantiated by the DCF.

She said she would support a lower standard of evidence to substantiate a case and another option, such as validated.

“It gives a more accurate and clear depiction from a public’s eye of what the abuse situation is in Kansas,” she said.

The state switched to a clear and convincing evidence standard in 2004 to be more consistent with state law, Dempsey said.

“We wanted to ensure that we met an appropriate burden of proof before placing someone on the central registry,” he said.

‘A more rigorous standard’

In 2012, Pennsylvania was the only other state using the clear and convincing evidence standard. But that state’s legislature amended the law, effective at the end of this year, to make “substantial” evidence the standard in child abuse cases.

Virginia used a clear and convincing evidence standard until the ’90s and used three categories of findings — unfounded, founded and reason to suspect, Virginia Department of Social Services spokeswoman Patrice Hagan said in an e-mail.

The reason to suspect finding was “used when we didn’t have the clear and convincing evidence to say founded but we still suspected a problem,” said child protective services policy specialist Mary Walter.

When the state took away that option, Virginia moved to a less rigorous standard of evidence to protect children.

“We had to eliminate by regulation the reason to suspect finding,” Walter said. The state then asked, “Is this the evidentiary standard we want to maintain?”

The clear and convincing evidence standard, Walter said, “is a more rigorous standard, and it’s more difficult to reach that.”

Linda Spears, vice president of policy and public affairs for the Child Welfare League of America, said of the clear and convincing evidence standard: “I never thought there was a reason to have it to begin with.”

It could, potentially, put children at risk, she said.

‘No easy answer’

Rep. Connie O’Brien, R-Tonganoxie, is chairwoman of the House Children and Seniors Committee. She said she hears more from people upset that their children have been taken away than she does from people upset about the standard the DCF uses to substantiate cases.

“But I’d almost rather err on the side of the kids since that baby died in Wichita,” she said.

Rep. Jim Ward, D-Wichita and the ranking minority member of the Health and Human Services Committee, said it’s time for the state to take a critical look at its child welfare policies.

“I’ve done every job in child in need of care except for being a judge,” said Ward, a lawyer. “I think on a lot of levels we should have a conversation about how we are dealing with abused and neglected child in our state. We are getting stories and stories about children falling through the cracks. Have we created a law that makes it difficult to protect children?”

Ward said the state must balance the protection of children and the rights of alleged perpetrators.

Being on the state’s central registry is a “pretty big scarlet A,” he said, alluding to “The Scarlet Letter.”

“I think it’s a very delicate and complicated issue. There’s no easy answer,” he said.

Reach Deb Gruver at 316-268-6400 or dgruver@wichitaeagle.com. Follow her on Twitter: @SGCountyDeb.

STANDARDS ACROSS THE STATES

Here is a breakdown of the evidence standards used by states to substantiate allegations of abuse or neglect.

Kansas is the only state that uses a clear and convincing evidence standard to substantiate allegations of abuse or neglect. That is a more rigorous standard than preponderance of evidence, which is what most states use. Here is a breakdown:

Clear and convincing: Kansas

Credible: District of Columbia, Illinois, Mississippi, Nevada, New Mexico, New York, Ohio, Oklahoma

Probable cause: Arizona

Preponderance: Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Jersey, North Carolina, North Dakota, Pennsylvania*, Puerto Rico, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington, West Virginia, Wisconsin, Wyoming

Reasonable: Hawaii, Massachusetts, Oregon, Utah, Vermont

Source: “Child Maltreatment 2012,” a study by the Administration for Children and Families, an office of the U.S. Department of Health and Human Services.

*Pennsylvania changed its standard after the study was published.