ALLEGATIONS OF DCFS FINDINGS IN JUVENILE PETITIONS
The issue: The State alleges a “DCFS history” which includes “findings”
the Division has made.
For example:
“[your client] has a history with DCFS that includes the
following supported findings: June 16, 2010 Emotional
Maltreatment and Physical Abuse… March 28, 2007
Domestic Violence.”
“[another client] has a prior DCFS History which includes
supported findings and (sic) Child Endangerment, June
2010; Supported Domestic Violence and Failure To Protect,
October 2009; and Supported DV in January 2005.”
The concerns The State is bootstrapping their agency prior nonjudicial agency action into a finding in a judicial proceeding where the
standard of proof is higher and due process applies.
Two Utah Code Titles to consider: §62A-4a et seq. (Which
authorizes the Division to investigate and maintain their S.A.F.E.
database, and ¶78A-6 et seq. (Which authorizes the Division to take
custody, provides a judicial process for adjudications and
terminations).
“SUPPORTED” FINDINGS
If D.C.F.S. alleges in a Petition it has “supported,” a finding against your
client, it is describing a process the Division has undertaken in a non-judicial
proceeding. It is basically the Agency’s investigation into a referral,
undertaken by a caseworker, then “staffed,” to decide whether the Division
feels the standard of proof, “reasonable basis” has been met.
Each allegation made or identified during the course of the investigation
shall be considered separately in determining whether there should be a
finding of supported.” §62A-4a-101 U.C.A., 1953.
The Child and Family Services Code allows a D.C.F.S. investigation to
be “supported,” if there is a “reasonable basis,” to believe the matter
occurred. §62A-4a-101(33), U.C.A., 2008.
“SUBSTANTIATED” FINDINGS
If D.C.F.S. alleges in a Petition it has “substantiated,” a finding against
your client, it is describing a decision which has been made with Court
involvement, and at a higher standard of proof than “reasonable basis,” and
theoretically, there should have been Court involvement.
The higher standard of “substantiation,” which is still merely a
preponderance of the evidence, is the only standard in Title 62A-4a which is
based on a “judicial finding.” §62A-4a-101(31) U.C.A., 2008. A
“substantiated finding,” comes about when a person appeals a “supported
finding” to the District Court, (trial de novo) and the Court finds against
them, resulting in a “substantiated finding” which is then entered into the
S.A.F.E. databases. (The Juvenile Court is also authorized to direct a
“substantiated finding,” as part of a Title 78A-6- proceeding, but only in
cases of severe abuse and neglect).
The problem: The Division alleges prior findings because it wants the
Court to know your client is a bad parent, has been a bad parent for a long
time, and to “prime the pump” regarding any other “current” allegations in
the Petition. That is clearly not allowed under the statutory scheme provided
in Title 62A-4a, and Title 78A-6, U.C.A.
The provisions that allow for D.C.F.S. to investigate matters internally,
and “support” them is in a different Title of the Utah Code than are the
provisions that allow for the Court’s adjudication, interference with custody,
and/or termination in this child welfare case.
§62A specifically concedes that judicial proceedings under Title 78
which impinge on parental rights to custody are subject to heightened
scrutiny to which a clear and convincing evidence standard applies.
When circumstances within the family pose a threat to the
child's immediate safety or welfare, the division may obtain
custody of the child for a planned period and place the child in
a safe environment, in accordance with the requirements of
Title 78A, Chapter 6, Part 3, Abuse, Neglect, and Dependency
Proceedings.
§62A-4a-201(4), U.C.A.
As a whole, the references in Title 62A-4a, entitled, “Child and
Family Services,” speaks to investigations by the Division, pre-removal
activities, and actions to fortify and insular family and avoid the level of
interference which would require Court intervention to which heightened
scrutiny would apply found in §78A-6 et seq.. That Title is peppered with
references to resort to §78A-6, the “Juvenile Court Act” when encroachment
upon that protected area of personal liberty is warranted or necessary.1”
The plain language of the two Titles make clear they address different
activities, §62A-4a, “Child and Family Services” refers to Agency activities;
investigation and reporting requirements. “The Juvenile Court Act,” §78A-6,
describes appropriate areas of actual litigation in child welfare cases.
That the State alleges that the Division has “decided” the case
suggests that it believes the agency decision should somehow be considered
by the Court in the Title 78A-6- judicial proceeding, or that the Agency
finding supplies proof of the allegations in the Petition. To allow the State
to merely recite that it has already made findings against your client is
tantamount to allowing the State to skirt your client’s right to trial at that
higher standard of proof.
DUE PROCESS
A person can not be deprived of a fundamental liberty interest, such as
a familial interest, with out due process of law. U.S. Const., Amend 14,
Utah Const. Art. I, §7.
“No principle is more fundamental to the integrity of a society that claims
1
§62A-4a-2-1(2), (4), (7)(b), (8), §62A-4a-202.1(1), §62A-4a-202.3(1), §62A-4a203(1)(b) and (c), 62A-4a-203.5(2),
allegiance to the rule of law than the principle that a person may not be
deprived of his property without first being afforded due process of law.”
Brigham Young University v. Tremco Consultants, Inc., 156 P.3d 782, 788,
¶28, (Utah 2007). In fact, the Rules of Civil Procedure are an embodiment
of the all the principles of due process, notice, meaningful opportunity to be
heard before a neutral magistrate, right to meaningful hearing, and process to
appeal. Id. The Rules are designed to provide a system of “regularity,” to
litigants in Utah Courts. Id.
However, due process is not a static concept, and the amount of
process that is due is flexible concept, based on the circumstances.
“Although the exact requirements of due process may vary from situation to
situation, the minimum requirements of due process include adequate notice
and an opportunity to be heard in a meaningful manner.” Chen v. Stewart,
100 P.3d 1177, 1193, ¶68, (Utah 2004).
The process due in this case can be gleaned by statute. The burden of
proof is placed by statute as clear and convincing. The right to trial (and all
the guarantees included in that, to a neutral magistrate, to hear evidence
against Respondent, to call witnesses on his behalf, to testify, to compel the
presence of witnesses, to adequate notice of the allegations against him, et
cetera) is guaranteed. The right to counsel is directed by statute. Nowhere
in that statutory scheme which is drafted to ensure the due process
guarantees in this case to which “heightened scrutiny” applies because it
deals with Respondent’s First Amendment association rights is it implied
that an agency adjudication might be considered in any way as a substitute
for proper and admissible proof in the judicial forum.
The type of notice provided by such an allegation, that the Division
“supported” an allegation of a certain category does not even serve to
provide adequate information for the client to prepare to defend. The
Division’s conclusions do not supply the names of persons involved, the
dates or even moderately specific time frames, locations of the alleged
activities, the nature of those activities, the identity of witnesses, or even the
identity of the children alleged to have been victims.
CONCLUSION
Because allegations that the Division has “supported” or
“substantiated” findings pursuant to it’s administrative authority constitute
improper invitations for the court to accept those non-judicial agency actions
as a substitute for proof in the judicial action, and because Respondent is
entitled to a proper trial with due process guarantees, counsel should
consider objecting to the allegation, moving to strike, and demanding proof
by clear and convincing evidence.