OKDHS - OAC 340:75-3-5. Relationship of Child Protective Services (CPS) and other entities in child abuse and neglect investigations

340:75-3-5. Relationship of Child Protective Services (CPS) and other entities in child abuse and neglect investigations

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Revised 3-26-10

(a) Responsibility of other entities in child abuse or neglect investigations.

(1) Office of Client Advocacy (OCA). The Oklahoma Department of Human Services (OKDHS), OCA is responsible for the investigation of any allegation of abuse or neglect of a child in any OKDHS facility, or in a public or private residential facility, including, but not limited to, jails or detention centers, hospitals, psychiatric facilities and treatment programs, day treatment programs, and licensed or unlicensed residential child care facilities. OCA is responsible for the investigation of alleged child abuse, neglect, sexual abuse, and sexual exploitation by a community services worker as defined by Section 1025.1 of Title 56 of the Oklahoma Statutes. Reports of suspected abuse or neglect of a child are made to OCA as prescribed in OAC 340:2-3-33. OCA does not investigate allegations of abuse or neglect of a child in a foster home, including specialized community homes, therapeutic foster homes, or kinship home placements.
(2) Oklahoma Child Care Services (OCCS). OKDHS Oklahoma Child Care Services (OCCS) is responsible for implementing the Oklahoma Child Care Facilities Licensing Act [10 O.S. § 401 et seq.] through standards designed to ensure the safety of children. OCCS has concurrent responsibilities with Child Protective Services (CPS) in investigations of alleged physical abuse, sexual abuse, or serious neglect in child care centers and homes. Whenever possible, investigations are conducted jointly by OCCS and CPS. This does not include violations of licensing standards, which are handled by OCCS.

(b) CPS and inter-agency relationships. CPS functions as a component of the multi-faceted system established to protect children from abuse and neglect, which includes law enforcement, the court system, other social services agencies, and other organizations. CPS is a component of the Child Welfare (CW) services continuum that includes preventive and protective services and voluntary Family Centered Services, foster care and placement services, and adoption services.

(c) Role of CPS. CPS evaluates reports of abuse or neglect, assesses child safety and risk of future maltreatment and the need for protective services, and provides and coordinates services.

(d) Role of law enforcement. Law enforcement investigates a report of child abuse or neglect as a crime. Reports that require joint involvement of CPS and law enforcement are handled as investigations rather than assessments. Law enforcement identifies and arrests the offender(s), gathers court-admissible evidence, and protects the integrity of the evidence so the offender(s) can be prosecuted in criminal court. Law enforcement may:

(1) provide protection to the child, other family members, and the CW worker during crisis intervention; • 1
(2) when imminent safety threats are present, take a child into protective custody and authorize immediate medical or behavioral health treatment, if necessary to protect the child's health, safety, or welfare. [10A O.S. § 1-4-201] Refer to OAC 340:75-3-10.1 for joint response system between CW and law enforcement when a child is placed in protective custody; and
(3) release a child to someone designated by the parent when the parent has been arrested on a charge or warrant for a crime other than child endangerment or child abuse or neglect.

(e) OKDHS relationship with law enforcement and Oklahoma State Bureau of Investigation (OSBI).

(1) OKDHS staff is responsible for coordinating with law enforcement. If law enforcement asks OKDHS not to interview certain persons or to delay its investigation, OKDHS may not relinquish its responsibility. OKDHS works with law enforcement to develop a plan that allows OKDHS to fulfill its responsibilities without interfering with the criminal investigation. • 2
(2) The OKDHS Director or designee has the authority to request a criminal investigation by OSBI or other law enforcement agency, per Section 1-2-105(H) of Title 10A of the Oklahoma Statutes. • 3

(f) Role of the district attorney in deprived matters. The district attorney has the responsibility to determine whether filing a petition is warranted based on information obtained during the CPS investigation. OKDHS has the responsibility to make a written recommendation, regardless whether the district attorney verbally indicates he or she may not file a deprived petition. Consultation, coordination, and a good working relationship between the CW worker and the district attorney is essential to ensure court protection of the child. • 4

(g) Role of the district attorney in criminal prosecutions. CW staff makes recommendations to the district attorney regarding deprived proceedings, but not for criminal prosecution. The district attorney has the responsibility to decide whether criminal charges are filed against the alleged perpetrator(s). The CPS investigation is limited to what is necessary to protect the child.

(h) Role of the attorney for the child. In deprived proceedings a separate attorney is appointed for the child. [10A O.S. § 1-4-306] In criminal actions brought under Title 21 of the Oklahoma Statutes, the child victim may be appointed an attorney per Section 843.7 of Title 21 of the Oklahoma Statutes. The child's attorney represents the child and any expressed interests of the child. The attorney for the child meets with the child as soon as possible after appointment and, except for good cause, prior to any hearing in the deprived proceeding. OKDHS provides the child's attorney access to all reports, records, information relevant to the case, and any reports of examination of the child's parent(s), legal guardian, or legal custodian. The attorney is advised of the child's location and how best to contact the child, according to OAC 340:75-6-48.1. • 5

(i) Role of the child's guardian ad litem. The court appoints a guardian ad litem or court-appointed special advocate (CASA) to advocate for and monitor the child's best interests. The guardian ad litem or CASA makes reports and recommendations to the court and conducts interviews with parents, foster parents, providers, CW workers, and others with knowledge of the case. • 6 [10A O.S. § 1-4-306]

(j) Role of the judge in deprived matters. The judge may, upon application by the district attorney, issue a court order to place the child in emergency custody when the child is in need of immediate protection due to an imminent safety threat. [10A O.S. § 1-4-201] After a deprived petition has been filed the judge hears the evidence presented during the adjudication hearing and decides whether the child is adjudicated a deprived child. The judge decides whether the child is placed in the custody of the person(s) responsible for the child (PRFC(s)), a relative, OKDHS, or another agency, and may order the PRFC(s) and child to participate in a court-ordered individualized service plan.

(k) Role of the judge in child custody or visitation proceedings. If a judge, during a proceeding concerning child custody or visitation, determines there is evidence of abuse or neglect of the child, Section 1-4-102 of Title 10A of the Oklahoma Statutes requires the referring court to notify OKDHS. The referring court may also enter an order to have the child taken into emergency custody when evidence indicates the child is in surroundings that endanger the health, safety, or welfare of the child. • 7

INSTRUCTIONS TO STAFF 340:75-3-5

Revised 3-26-10

1. Notification to law enforcement. Child Welfare (CW) notifies law enforcement as soon as possible when the CW worker determines that:

(1) a child, the CW worker, or other person needs immediate protection to prevent physical harm;

(2) a child is found in a situation that is dangerous to the child's health, safety, or welfare;

(3) a child's health or condition warrants medical or behavioral health evaluation, examination, or treatment and the person responsible for the child (PRFC(s)) is unavailable or unwilling to obtain it;

(4) the act of abuse or neglect caused serious injury to the child;

(5) sexual abuse appears likely to have occurred based on initial interviews or on the basis of the report of sexual abuse if there are allegations of physical trauma resulting from sexual abuse; or

(6) a child who was placed in protective custody has a sibling(s) who is in imminent danger.

2. (a) Coordinating with law enforcement.

(1) If problems arise in coordinating the investigation with law enforcement, the county director (CD) is notified and assistance from the Oklahoma Department of Human Services (OKDHS) Legal Division is requested if needed.

(2) The CW worker completes Form 04KI003E, Report to the District Attorney, and the narrative to document this event.

(b) Notification to law enforcement regarding a crime.

(1) It is the responsibility of CW to notify law enforcement at any point a criminal investigation appears warranted.

(2) The CW worker verbally notifies law enforcement and follows up with written notification using Form 04CP002E, Notification to Law Enforcement Agency of Child Abuse or Neglect Report.

(c) Third Party Involvement. After making a referral to law enforcement, OKDHS is not responsible for further investigation unless OKDHS:

(1) has reason to believe the alleged perpetrator is a parent of another child, not the subject of the criminal investigation, or is otherwise a PRFC;

(2) receives notice from law enforcement that the alleged perpetrator is a parent of or a PRFC of another child not the subject of the criminal investigation; or

(3) receives a written request from law enforcement requesting OKDHS participate in the criminal investigation. If funds and personnel are available, as determined by the OKDHS Director or a designee, OKDHS may assist law enforcement in interviewing children alleged to be victims of physical or sexual abuse.

3. (a) When to request an Oklahoma State Bureau of Investigation (OSBI) criminal investigation. A criminal investigation by the OSBI may be warranted in an open CW case when:

(1) local law enforcement or the district attorney's (DA's) office does not have the available local resources and has not requested assistance;

(2) the physical abuse, sexual abuse, or neglect is serious, as defined in OAC 340:75-3-2;

(3) the alleged perpetrator(s) of the abuse, sexual abuse, or neglect is:

(A) an unknown caregiver; or

(B) there is more than one caregiver; and

(4) CW does not have the investigative resources or information to determine who abused the child, and thus is unable to ensure the child's safety.

(b) Procedures for requesting an OSBI criminal investigation. When an OSBI investigation appears warranted:

(1) the local CW worker and supervisor consult with the county director (CD) and CW field liaison (CWFL);

(2) the CD and CWFL:

(A) review the matter;

(B) consult with the DA to determine whether the DA has requested or will request OSBI assistance; and

(C) when the DA declines to request OSBI assistance, notify the area director; and

(3) the area director notifies the Children and Family Services Division Child Protective Services (CPS) programs office, who initiates the OKDHS Director request for a criminal investigation by OSBI.

4. Recommendations to the DA.

(1) The CW worker makes recommendations to the DA through an affidavit when an emergency custody order is required to ensure the safety of a child.

(2) The CW worker makes recommendations to the DA through Form 04KI003E:

(A) when a deprived petition is needed to seek court intervention; or

(B) for all investigations, unless the findings are reasonable parental discipline.

5. Child’s attorney. The CW worker, as an advocate for the child, coordinates and consults with the child's attorney to ensure the protection and well-being of the child.

6. OKDHS coordinates and cooperates with the guardian ad litem or court appointed special advocate (CASA) to ensure the best services are provided for the child.

7. Child custody or visitation proceedings.

(1) When the referring court places the child into OKDHS custody, the information is documented on Form 04KI001E, Referral Information Report, and an assessment or investigation is immediately assigned with a Priority I time frame per OAC 340:75-3-6.1.

(2) When the referring court makes a report of abuse or neglect the information is documented on Form 04KI001E and an assessment or investigation is immediately assigned with a Priority 1 time frame per OAC 340:75-3-6.1. OKDHS submits the completed assessment or investigation to the DA and referring judge within 30 days.

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