DFS Contested Case Hearing Process

1. DFS Contested Case Hearing Process Wendy S. Ross, Esq., Senior Assistant Attorney General CJP Blog Talk April 17, 2019

2. 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 Services • Once 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)

3. DFS Investigation • Statement of Abuse/Neglect Allegations (SS-2) • Should be sent to the alleged perpetrator within 7 calendar days of the initial interview • Notice of Conclusions (SS-5) • Should be sent to the alleged perpetrator within 7 calendar days of the conclusion of the investigation • Timeline for Investigation • Investigations should be completed within 6 months, can be extended with consent of District Manager

4. DFS Investigation • Independent, administrative process • Separate and apart from juvenile court process • BUT 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

5. 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 or neglected • Criteria: • 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); and • Supervisor and District Manager have reviewed the investigation report, concur with the finding, and the District Manager signs the Notice of Conclusions (SS-5)

6. DFS Investigation • Unsubstantiation occurs where there is NOT a preponderance of evidence that abuse or neglect has occurred • DFS may still offer services to the family even when the Department does not substantiate

7. Request for Hearing • The SS-5 includes information about how the perpetrator can request a contested case (administrative) hearing • A 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 hearing • Name 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)

8. 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))

9. Request for Hearing • Informal Conference • The 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 hearing • Purpose: to review facts and legal authority on which the Department relied in making the determination to take adverse action • May be waived by party whose interests have been adversely affected

10. Hearing Process • Representation • All 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 behalf • If 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 hearing • The Department may be represented by the Attorney General’s Office • Filing of papers • DFS maintains the original file • Copies of filed documents should be provided to all parties and the hearing officer

11. Hearing Process • Time Period for Requests, Evaluation of Requests, and Hearing • An alleged perpetrator has 20 days from date of mailing of SS-5 to request hearing, in writing • The 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 hearing • A 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

12. Hearing Process • Referral to the Office of Administrative Hearings • Once the director approves the request for hearing, the Department refers the case to the Office of Administrative Hearings (OAH) to conduct the hearing • Referral is made through an OAH transmittal form

13. Hearing Process • Scheduling Conference • Once OAH receives the transmittal form and the accompanying documents, OAH will usually set a scheduling conference to set a hearing and other disclosure deadlines • This sometimes does not occur if there are no attorneys involved • Usually conducted by telephone

14. Hearing Process • Discovery • Rule 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

15. Hearing Process • Settlement Options • The Department has the discretion to informally resolve these matters through a settlement agreement • Settlement agreement terms are usually identified to address the conduct that led to the substantiation • A 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 registry • Settlement agreement terms must be approved by the State DFS office administrators in addition to the local office District Manager

16. Hearing Process • Pre-Hearing Disclosures • Much like a pretrial statement • OAH will set a deadline for submission • Must 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 evidence • Failure 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

17. Hearing Process • Pre-Hearing Conference • May be held at the discretion of the hearing officer • Any party may request a prehearing conference to address issues such as discovery, motion deadlines, scheduling orders, or status conferences • Usually conducted by telephone

18. Hearing Process • Hearing • CPS hearings must be conducted in person in the county of origination • If a party requesting a hearing fails to appear, the hearing officer may dismiss the case • Evidence • Rules of Evidence do NOT apply • Privilege laws do apply and should be recognized by hearing officer • Evidence of the type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs is admissible • Hearing officer may take administrative notice of judicially cognizable facts • Hearing officer may ask questions of any party or witness

19. Hearing Process • Hearing • Burden of Proof • Is on the Department (in CPS cases) • Standard of Proof • Preponderance of evidence • Recording of hearing • The 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

20. Hearing Process • OAH Decision • In 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 determination • May be extended 10 working days to allow for additional briefing • For CPS cases, the OAH decision is a final decision • For APS cases, the OAH decision is a recommended decision and the Director makes the final decision • Appeals • Can be made in accordance with Wyo. Stat. Ann. § 16-3-114 and WRAP Rule 12

21. 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 Protective Services 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 Services Policy 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.)