(a) Applicability. This section applies to investigations,
conducted under §261.401 of the Family Code, of alleged child
abuse, neglect, or exploitation in facilities operated, licensed,
certified, or registered by a state agency.
(b) Formal investigation. On receiving an oral or written
allegation or report of abuse, neglect or exploitation, a state agency
must immediately initiate a formal investigation to determine the
accuracy of the report and to evaluate the need for protective services
for the child. A state agency should consider the following steps
(which may vary according to circumstances) in conducting its investigation:
(1) a face-to-face interview with the alleged victim
to evaluate immediate and long-term risk. The investigator should
make every effort to establish face-to-face contact with the alleged
victim, including a diligent search to locate the alleged victim,
if the victim's whereabouts are unknown;
(2) make a reasonable effort to locate and inform each
parent of a child who is the alleged victim of abuse, neglect, or
exploitation, of the nature of the allegation and of the fact that
the interview was conducted.
(3) a face-to-face interview with the person(s) thought
to have knowledge of the circumstances related to the alleged abuse,
neglect or exploitation, including anyone responsible for the ongoing
care of a child;
(4) collecting relevant information such as:
(A) the nature, extent, and cause of the abuse, neglect,
or exploitation;
(B) the identity of the person responsible for the
abuse, neglect, or exploitation;
(C) the names and conditions of the other individual(s)
in the home;
(D) the adequacy of the environment; and
(E) the relationship of the alleged victim to the person(s)
responsible; and
(5) assigning a priority rating to the investigation
based on the information received and the degree of severity and immediacy
of the alleged harm to the child.
(c) Priorities for investigation. A state agency, as
defined in §351.501 of this title (relating to Definitions Relating
to Child Abuse Neglect and Exploitation):
(1) must ensure that the facility establishes a system
for informing persons who work under the auspices of the facility
of their obligations to report suspected abuse, neglect, and exploitation
in accordance with the state agency's rules and/or policies;
(2) must establish a system for assigning reasonable
timelines for initiating and for completing an investigation of a
report of abuse, neglect or exploitation that is based on the degree
to which the alleged victim is believed to be in immediate danger
of physical harm and the degree to which relevant evidence may be
lost in relation to the initiation date of the investigation:
(A) at any time the alleged victim may incur physical
injury or evidence may be lost pending the initiation of an investigation,
the investigation must be initiated within 24 hours of receipt of
the report;
(B) notwithstanding the potential risk of physical
injury to the child or loss of evidence, all investigations must be
completed within 30 calendar days of receipt of the report; provided,
however, that the completion date for an investigation may be extended
beyond 30 days for good cause as documented in the investigation report;
(3) may conclude an investigation and retain any applicable
immunity granted pursuant to the Family Code, §261.106, at any
time that the agency determines that the report of abuse, neglect
or exploitation is frivolous or patently without a factual basis or,
the conduct reported, even if true, does not constitute abuse, neglect
or exploitation; and
(4) must refer any report of abuse, neglect or exploitation
received by the agency but not investigated by the agency to the appropriate
law enforcement or state agency that should conduct the investigation.
(d) Collection of evidence. The collection of evidence
should include, but is not limited to:
(1) a full statement of the allegation(s);
(2) interview(s) with the alleged victim, alleged perpetrator,
and all witnesses or persons who may provide collateral information
that may be relevant to the investigation;
(A) interviews must be conducted in a timely manner
so as to maximize the information obtained through the interview;
(B) any person authorized to conduct an investigation
of abuse, neglect, or exploitation should coordinate investigative
activities and share information with other appropriate agencies,
if any, in order to minimize the number of interviews of the victim;
(3) written statements signed and dated, respectively,
by the alleged victim, alleged perpetrator, and other collateral witnesses
interviewed by the investigator; if the alleged victim, alleged perpetrator
or other witness is unable or unwilling to write and/or sign a statement,
the investigation report must include a statement to this effect;
(4) documentation of a physical examination of the
alleged victim and medical treatment rendered, as needed;
(5) photographs should be taken whenever there are
allegations of physical injuries;
(6) diagrams, as needed;
(7) the original or computer generated notes made during
the investigation, videotapes and audiotapes of interviews, in order
to preserve and document the chain of evidence; and
(8) any other physical evidence that is relevant to
the investigation.
(e) Burden of proof. After the evidence has been collected
and evaluated, the investigative staff must determine whether or not
to confirm the allegation. To confirm an allegation, the investigative
staff must find the abuse, neglect, and exploitation is supported
by a preponderance of the evidence. The following classifications
are recommended for investigative findings that are not confirmed:
(1) Unconfirmed means it is reasonable to conclude
that abuse, neglect, or exploitation did not occur or is unlikely
to occur.
(2) Inconclusive means there is insufficient evidence
to support or refute an allegation. This occurs when an allegation
of abuse, neglect, or exploitation could not be confirmed, unconfirmed,
or unfounded because there is a lack of witnesses or other relevant
evidence.
(3) Unfounded means that an allegation of abuse, neglect,
or exploitation is spurious or patently without factual basis.
(f) Content of the investigative report. An investigative
report should, to the greatest extent possible, be written concisely,
clearly, factually, and objectively. The following elements should
be included in the report:
(1) a brief description of the allegation that identifies
the alleged victim, alleged perpetrator(s), and any witnesses;
(2) date and time the incident occurred and when it
was reported;
(3) a summary of investigative procedures;
(4) a summary and an analysis of the evidence, the
investigative finding(s), and recommendations; and
(5) supporting documents such as witness statements,
injury reports, and diagrams, as appropriate.
(6) The investigating state agency must submit the
report, and any recommendations to the district attorney or other
appropriate law enforcement agency, if requested to do so by law enforcement,
the agency determined further legal action is warranted, or the agency
confirmed that the alleged victim was abused, neglected, or exploited
and it appears that there is a criminal violation.
(g) Referrals to appropriate agencies. A state agency
that receives a report of abuse, neglect, or exploitation that is
not within the agency's jurisdiction must refer the matter to the
agencies listed below, as appropriate:
(1) to the Texas Department of Protective and Regulatory
Services, if
(A) the alleged or suspected abuse, neglect, or exploitation
involves a person responsible for the care, custody, or welfare of
the alleged victim;
(B) the alleged or suspected abuse, neglect or exploitation
of a person receiving services in a facility operated by MHMR, in
or from a community center or a local mental health or mental retardation
authority, or through a program that contracts with MHMR, a community
center, or local mental health or mental retardation authority;
(2) to the appropriate law enforcement agency, if the
allegation does not involve a caretaker or the allegation appears
to involve an incident that violates the Penal Code; the state agency
must send its final report to law enforcement, if the investigation
indicates a crime has been committed; and
Cont'd... |