110 CMR 4.33 - Perpetrator/Caretaker

(1) Perpetrator: For any investigated and supported report of abuse or neglect, the Department shall record the identity(ies) of alleged perpetrator(s) when:

The incident of child abuse or neglect has been supported and referred to the District Attorney pursuant to M.G.L. c. 119, § 51B(k) and there is substantial evidence indicating that the alleged perpetrator was responsible for the abuse or neglect. See 110 CMR 4.37.

(2) Perpetrator: For any investigated and unsupported report of abuse or neglect, the Department's Central Registry shall automatically record perpetrator "not applicable".

(3) Perpetrator: Whenever the Department "supports" a 51A report and whenever the name(s) of alleged perpetrator(s) are recorded as such on the Registry of Alleged Perpetrators, the Department shall 20 working days after the referral is made to the District Attorney notify each alleged perpetrator that his/her name will be maintained on the Registry of Alleged Perpetrators. The Department shall utilize a form letter established for use by the Department. The form letter shall include notification to the alleged perpetrator(s) of the right to a fair hearing to appeal said listing. If the alleged perpetrator is a child under age 18, the letter shall be directed to the child, with a copy to the child's parent(s) and/or guardian. (See 110 CMR 10.06(9)(c) for a stay of fair hearing proceeding at request of the District Attorney.)

(4) Caretaker: Where the Department has no reasonable cause to believe that a caretaker was the perpetrator of abuse or neglect, the Department will unsupport the report. (Note, however, that the Department may voluntarily refer or be required to refer the matter to appropriate law-enforcement agencies. See 110 CMR 4.50 et seq. Note also that the Department may offer voluntary services as appropriate.)

Commentary

The meaning of a supported or unsupported report is often misunderstood, primarily because the Department sometimes unsupports a report where a child has clearly suffered an injury. While at first blush this can appear contradictory, it is in fact most often the result of the application of the important distinction between caretakers and non-caretakers.

The caretaker distinction is an important one, for the Department's primary duty is to protect children from abuse or neglect inflicted by their parents or parent substitutes. See M.G.L. c. 119, § 1, paragraph 2: "The purpose of this chapter is to insure that the children of the Commonwealth are protected against the harmful effects resulting from the absence, inability, inadequacy or destructive behavior of parents or parent substitutes." (emphasis added).

The following examples may serve to clarify.

Example A: The Department receives a report of a small boy with bums around his lips and nose. It is screened in. It is investigated. The investigator determines that the injury occurred when the small boy pulled a heat lamp from his parents' bathroom onto his face. There is no evidence that the accident occurred as a result of either parents' neglect. The report is unsupported, as no incident of abuse or neglect is determined to have occurred. Note that if the facts were slightly different (for example, if the Department determined that the injury occurred because the small boy had been left alone at home all day) then the Department could have supported the report as neglect.

Example B: Teenaged girl reports that father has been sexually molesting her. In these circumstances, the Department will list the father as the alleged perpetrator. Since he is a caretaker, the Department will support the report, if the Department determines it has reasonable cause to believe the reported incident(s). The Department will also refer the matter to the District Attorney (See 110 CMR 4.50 et seq.) and offer services as appropriate.

Example C: A school nurse reports that a 16 year old female high school student has been sexually molested. After investigation, the Department determines that the perpetrator is the girl's 16 year old boyfriend. Since he is not a caretaker, the Department will unsupport the report. Note that the Department may refer the case to the District Attorney (See 110 CMR 4.50 et seq.) and offer voluntary services as appropriate.

Example D: Infant is brought to pediatrician by mother with numerous fresh facial bruises. Pediatrician characterizes them as non-accidentally inflicted. Mother claims infant was in bruised condition when returned by her ex-husband (infant's father) from weekend visitation. Father claims infant was unblemished when returned to mother by him. Both mother and father state no other caretakers had child recently. In this circumstance, mother and father may both be listed as alleged perpetrators on the Department's records if in addition to support the report, the report is referred to the District Attorney. Once again, the Department's supported decision in no way reflects a determination by the Department of the identity of the perpetrator. Note that the Department will offer voluntary services as appropriate.

Example E: 12-year old boy is taken to hospital emergency room with broken ribs. Parent(s) cannot be located. Boy tells doctor he was attacked by gang of neighborhood youths he does not know, and robbed. Hospital files 51A report, and report is screened in to investigate possible neglect. Parents are thereafter located and it is determined they were not neglectful with regard to the boy's injury. The Department will unsupport the report, because even though the young boy suffered a clear incident of physical injury, the abuse was not caused by caretaker(s), and there was no neglect by his caretakers. Note that the Department will offer voluntary services as appropriate.

Example F: The Department receives a report of a young teenager currently in foster care who has had several front teeth knocked out. It is screened in. It is investigated. The investigator determines that the young teenager has at various times given divergent explanations for his injury: sometimes he says his biological father punched him, sometimes he says his grandfather punched him. Both father and grandfather deny punching him. There are no witnesses to the event. There is no suggestion that the injury was accidental and a dental examination confirms this. The report is supported. Both father and grandfather are listed as alleged perpetrators. The Department's supported decision means the Department has determined it has reasonable cause to believe an incident of abuse by a caretaker occurred to the young teenager. The supported decision in no way reflects a determination by the Department of the identity of the perpetrator.

Notes

110 CMR 4.33