Or. Admin. Code § 419-210-0170 - Abuse Determination
(1)
Abuse Determination Requirements.
(a) Except
as provided in OAR 419-210-0160 (Exception to Completing an Investigation), an
abuse determination must be made for all reports of abuse that are determined
to require an investigation under OAR 419-210-0130.
(b) When making an abuse determination the
standard of proof is reasonable cause to believe.
(c) Based on the available evidence after
conducting an investigation, the possible abuse determinations are:
(A) "Substantiated", which means there is
reasonable cause to believe the abuse occurred.
(B) "Unsubstantiated", which means there is
no evidence the abuse occurred.
(C)
"Inconclusive", which means there is some indication that the abuse occurred
but there is insufficient evidence to conclude that there is reasonable cause
to believe that the abuse occurred. The "Inconclusive" determination may only
be used in the following circumstances:
(i)
After extensive efforts have been made, the OTIS investigator is unable to
locate the alleged victim; or
(ii)
After completing the investigation, there is insufficient information to
support an abuse determination of substantiated or unsubstantiated and the
alleged victim is unable or unwilling to provide consistent information; or
there is conflicting information from collateral contacts.
(2) Except as provided
in section (4) of this rule, abuse of a child, for the purpose of making an
abuse determination on a report subject to ORS
419B.005, includes, but is not
limited to:
(a) Child selling, including the
selling of a child that consists of buying, selling, bartering, trading, or
offering to buy or sell the legal or physical custody of a child.
(b) Mental injury which shall include only
cruel or unconscionable acts or statements made, or threatened to be made, to a
child if the acts, statements or threats result in severe harm to the child's
psychological, cognitive, emotional or social well-being and
functioning.
(c) Neglect, including
failure, through action or omission, to provide and maintain adequate food,
clothing, shelter, medical care, supervision, protection, or nurturing. Neglect
includes each of the following:
(A) Physical
neglect, which includes each of the following:
(i) Failing to provide for the child's basic
physical needs including adequate shelter, food, and clothing.
(ii) Permitting a child to enter or remain in
or upon premises where methamphetamines are being manufactured.
(iii) Unlawful exposure of a child to a
substance that subjects a child to severe harm to the child's health or safety.
When the OTIS investigator is making a determination of physical neglect based
on severe harm to the child's health due to unlawful exposure to a substance,
this determination must be consistent with medical findings.
(B) Medical neglect is a refusal
or failure to seek, obtain, or maintain necessary medical, dental, or mental
health care. Medical neglect includes withholding medically indicated treatment
from infants who have disabilities and life-threatening conditions. However,
failure to provide a child with immunizations or routine care alone does not
constitute medical neglect. When the OTIS investigator is making a
determination of medical neglect, this determination must be consistent with
medical findings.
(C) Lack of
supervision and protection, including failure to provide supervision and
protection appropriate to the child's age, mental ability, and physical
condition.
(D) Desertion, which
includes the respondent leaving the child with another person and failing to
reclaim the child, or respondent failure to provide information about their
whereabouts, providing false information about their whereabouts, or failing to
establish a legal guardian or custodian for the child.
(E) Psychological neglect, which includes
serious inattention to the child's need for affection, support, nurturing, or
emotional development. The respondent's behavior must be related to the
observable and severe harm of the child's psychological, cognitive, emotional,
or social well-being and functioning.
(d) Physical abuse, including an injury to a
child that is inflicted or allowed to be inflicted by non-accidental means that
results in harm. Physical abuse may include injury that could not reasonably be
the result of the explanation given. Physical abuse may also include injury
that is a result of discipline or punishment. Examples of injuries that may
result from physical abuse include, but are not limited to:
(A) Head injuries;
(B) Bruises, cuts, lacerations;
(C) Internal injuries;
(D) Burns or scalds;
(E) Injuries to bone, muscle, cartilage, and
ligaments;
(F) Poisoning;
(G) Electrical shock; and
(H) Death.
(e) Sexual abuse, which includes:
(A) A person's use of a child for the
person's own sexual gratification, the sexual gratification of another person,
or the sexual gratification of the child. Sexual abuse includes incest, rape,
sodomy, sexual penetration, fondling, and voyeurism.
(B) Sexual exploitation, including, but not
limited to, the use of a child in a sexually explicit way for personal gain to
make money, in exchange for goods, services, or drugs, or to gain status.
Sexual exploitation also includes using children in prostitution or using
children to create pornography.
(C)
Sex trafficking.
(f)
Threat of harm, including all activities, conditions, and circumstances that
place the child at threat of severe harm of physical abuse, sexual abuse,
neglect, mental injury, or other abuse.
(3) Except as provided in section (4) of this
rule, abuse of a child-in-care, for the purpose of making an abuse
determination on a report subject to ORS
418.257, includes, among others,
the following:
(a) Abandonment, including
desertion or willful forsaking of a child-in-care, or the withdrawal or neglect
of duties and obligations owed a child-in-care by a, child-caring agency,
proctor foster parent, ODDS licensed group home, ODDS host home, ODDS foster
parent, other individual, or an employee, volunteer, or contractor of a
child-caring agency, proctor foster home, ODDS licensed group home, ODDS host
home, or ODDS foster home.
(b)
Financial exploitation.
(A) Financial
exploitation includes:
(i) Wrongfully taking
the assets, funds, or property belonging to or intended for the use of a
child-in-care.
(ii) Alarming a
child-in-care by conveying a threat to wrongfully take or appropriate moneys or
property of the child-in-care if the child-in-care would reasonably believe
that the threat conveyed would be carried out.
(iii) Misappropriating, misusing, or
transferring without authorization any moneys from any account held jointly or
singly by a child-in-care.
(iv)
Failing to use the income or assets of a child-in-care effectively for the
support and maintenance of the child-in-care.
(B) Financial exploitation does not include
age-appropriate discipline that may involve the threat to withhold, or the
withholding of, privileges.
(c) The use of involuntary seclusion of a
child-in-care in violation of of ORS
418.521 or ORS
418.523.
(d) Neglect:
(A) Neglect includes:
(i) Failure to provide the care, supervision,
or services necessary to maintain the physical and mental health of a
child-in-care; or
(ii) The failure
of a child-caring agency, proctor foster parent, ODDS licensed group home, ODDS
host home, ODDS foster parent, other person, or an employee, contractor, or
volunteer of a child-caring agency, proctor foster home, ODDS licensed group
home ODDS host home, or ODDS foster home to make a reasonable effort to protect
a child-in-care from abuse.
(B) For purposes of this subsection,
"services" includes, but is not limited to, the provision of food, clothing,
medicine, housing, medical services, assistance with bathing or personal
hygiene or any other service essential to the well-being of a
child-in-care.
(e)
Physical abuse, which includes:
(A) Any
physical injury to a child-in-care caused by other than accidental means, or
that appears to conflict with the explanation given of the injury; or
(B) Willful infliction of physical pain or
injury upon a child-in-care.
(f) Sexual abuse:
(A) Sexual abuse includes:
(i) An act that constitutes a crime under ORS
163.375,
163.405,
163.411,
163.415,
163.425,
163.427,
163.465,
163.467, or
163.525;
(ii) Sexual harassment, sexual exploitation,
or inappropriate exposure to sexually explicit material or language;
(iii) Any sexual contact between a
child-in-care and an employee of a child-caring agency, proctor foster home,
ODDS licensed group home, ODDS host home, ODDS foster home, or other person
responsible for the provision of care or services to a child-in-care;
(iv) Any sexual contact between a person and
a child-in-care that is unlawful under ORS chapter 163 and not subject to a
defense under that chapter; and
(v)
Any sexual contact that is achieved through force, trickery, threat, or
coercion.
(B) For
purposes of this subsection, "sexual exploitation," as defined in ORS
419B.005(1)(a)(E),
includes, but is not limited to:
(i)
Contributing to the sexual delinquency of a minor, as defined in ORS chapter
163, and any other conduct that allows, employs, authorizes, permits, induces
or encourages a child to engage in the performing for people to observe or the
photographing, filming, tape recording or other exhibition that, in whole or in
part, depicts sexual conduct or contact, as defined in ORS
167.002 or described in ORS
163.665 and ORS
163.670, sexual abuse involving
a child or rape of a child, but not including any conduct that is part of any
investigation conducted pursuant to ORS
419B.020 or that is designed to
serve educational or other legitimate purposes; and
(ii) Allowing, permitting, encouraging or
hiring a child to engage in prostitution as described in ORS
167.007 or a commercial sex act
as defined in ORS 163.266, to purchase sex with a
minor as described in ORS
163.413 or to engage in
commercial sexual solicitation as described in ORS
167.008.
(C) For purposes of this subsection, "sexual
contact," as defined in ORS
163.305, means any touching of
the sexual or other intimate parts of a person or causing such person to touch
the sexual or other intimate parts of the actor for the purpose of arousing or
gratifying the sexual desire of either party.
(g) Verbal abuse:
(A) Verbal abuse includes threatening severe
harm, either physical or emotional, to a child-in-care through the use of:
(i) Derogatory or inappropriate names,
insults, verbal assaults, profanity, or ridicule; or
(ii) Harassment, coercion, threats,
compelling or deterring conduct by threats, humiliation, mental cruelty, or
inappropriate sexual comments.
(B) Verbal abuse does not include
age-appropriate discipline that may involve the threat to withhold
privileges.
(h) The use
of restraint of a child-in-care in violation of ORS
418.521 or ORS
418.523.
(4) Abuse does not include reasonable
discipline unless the discipline results in one of the conditions described in
sections (2) or (3) of this rule.
Notes
Statutory/Other Authority: ORS 409.050 & 418.005
Statutes/Other Implemented: ORS 409.050, 443.400 - 443.455, 419B.005 - 419B.050, 418.005, 418.257 - 418.259, 418.519 - 418.532 & 409.185
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