Maryland Domestic Violence Attorney Explains Types of Abuse (Physical, Sexual, Mental)

Physical Abuse Other than Mental Injury is appropriate if there is credible evidence, which has not been satisfactorily refuted, that the following four elements are present:

(a) A current or prior physical injury;
(b) The injury was caused by a parent, caretaker, or household or family member;
(c) The alleged victim was a child at the time of the incident; and
(d) The nature, extent, and location of the injury indicate that the child's health or welfare was harmed or was at substantial risk of harm.

Sexual Abuse.

(a) A finding of indicated child sexual abuse is appropriate if there is credible evidence, which has not been satisfactorily refuted, that the following three elements are present:

(i) Current or prior sexual molestation or exploitation;
(ii) The sexual molestation or exploitation was caused by a parent, caretaker, or household or family member; and
(iii) The alleged victim was a child at the time of the sexual molestation or exploitation.

(b) Physical injury is not required for a finding of indicated sexual abuse.

Abuse-Mental Injury. A finding of indicated child abuse with mental injury is appropriate if there is credible evidence, which has not been satisfactorily refuted, that the following four elements are present:
(a) A current or prior mental injury characterized by an observable, identifiable, substantial impairment to the child's mental or psychological ability to function, which may be shown by the need for specific psychiatric, psychological, or social work intervention;
(b) The mental injury was caused by a parent, a caretaker, or household or family member;
(c) The alleged victim was a child at the time of the incident; and
(d) The nature and extent of the mental injury indicate that the child's health or welfare was harmed or was at substantial risk of harm.

The definition of Unsubstantiated abuse is:
A finding of unsubstantiated child abuse is appropriate when there is insufficient evidence to support a finding of indicated or ruled out child abuse. A finding of unsubstantiated may be based, but is not required to be based, on the following:
(1) Insufficient evidence of a physical or mental injury, sexual molestation, or sexual exploitation;
(2) Insufficient evidence that the individual alleged to be responsible for the child abuse was a parent, caretaker, or household or family member;
(3) The lack of a credible account by the suspected victim or a witness;
(4) Insufficient evidence that the child's health or welfare was harmed or was at substantial risk of being harmed; or
(5) Despite reasonable efforts, an inability to complete the investigation due to factors such as:

(a) Lack of access to the child or individual alleged to be responsible for the child abuse; or
(b) Inability to obtain relevant facts regarding the alleged child abuse.

The definition of Ruled Out abuse is:
A finding of ruled out child abuse is appropriate if child abuse did not occur. A finding of ruled out may be based on credible evidence that:
(1) There was no physical or mental injury or, in the case of suspected sexual abuse, no sexual molestation or exploitation;
(2) In the case of physical abuse:

(a) The alleged abuser was not responsible for the injury for reasons including, but not limited to, one of the following:

(i) The contact with the child was accidental and unintended and under the circumstances, the injury was not foreseeable; or
(ii) The injury was a result of the child's medical condition; or

(b) The child's health or welfare was not harmed or at substantial risk of being harmed.

(3) The individual identified as responsible for the injury or sexual molestation or exploitation was not the child's parent, caretaker, or household or family member; or
(4) The alleged victim was not a child at the time of the incident.

If a child, other than the parent of a victim, was responsible for causing an injury or was involved in a sexual act toward another child, the local department may consider the following factors in determining the appropriate finding:
(1) The age and developmental level of the child victim;
(2) The age and developmental level of the child perpetrator;
(3) The psychological condition of each child;
(4) The child perpetrator's use of coercion, cruelty, or violence; and
(5) Whether the act was inappropriate for the developmental level of each child.

The definition of indicated neglect is:
A finding of indicated child neglect is appropriate when there is credible evidence, which has not been satisfactorily refuted, that the following four elements are present:
(a) A current or prior failure to provide proper care and attention;
(b) The alleged victim was a child at the time of the failure to provide proper care and attention;
(c) The failure to provide proper care and attention was by the child's parent or caretaker; and
(d) The nature, extent, or cause of the failure to provide proper care and attention indicate that the child's health or welfare was harmed or was at substantial risk of harm.

Mental Injury. A finding of indicated child neglect with mental injury is appropriate if there is credible evidence, which has not been satisfactorily refuted, that the following four elements are present:
(a) A current or prior mental injury caused by a failure to provide proper care and attention and characterized by an observable, identifiable, substantial impairment to the child's mental or psychological ability to function, which may be shown by the need for specific psychiatric, psychological, or social work intervention;
(b) The failure to provide proper care and attention to the child was by a parent or caretaker;
(c) The alleged victim was a child at the time of the failure to provide proper care and attention; and
(d) The nature and extent of the failure to provide proper care and attention indicate that the child's health or welfare was harmed or was at substantial risk of harm.

The definition of Unsubstantiated Child Neglect is:
(1) A finding of unsubstantiated child neglect is appropriate if there is insufficient evidence to support a finding of indicated child neglect as described in this regulation or ruled out child neglect as described in this regulation.
(2) A finding of unsubstantiated child neglect may, but need not, be based on the following:

(a) Insufficient evidence that the individual alleged to be responsible for the child neglect was a parent or caretaker;
(b) Insufficient evidence of a failure to provide proper care and attention;
(c) Lack of a credible account by the suspected victim or a witness;
(d) Insufficient evidence that the child's health or welfare was harmed or was at substantial risk of being harmed; or
(e) An inability to complete the investigation due to such factors as not having access to the child or the individual alleged to be responsible for the child abuse or other relevant facts regarding the alleged child neglect.

C. Ruled Out Child Neglect. A finding of ruled out child neglect is appropriate when child neglect did not occur. A finding of ruled out may be based on credible evidence that:
(1) There was no failure to provide proper care and attention;
(2) The child's health or welfare was not harmed or at substantial risk of being harmed;
(3) The individual alleged to be responsible for the child neglect was not a parent or a caretaker; or
(4) The alleged victim was not a child at the time of the failure to provide proper care and attention.

If DSS makes a ruling of indicated or unsubstantiated neglect or abuse, that ruling can be appealed. The appeal of DSS's decision is handled in a contested hearing in front of an Administrative Law Judge. The rules of evidence do not apply, and there are some specific rules for how these situations are handled that are unique to these hearings.

At the administrative hearing, DSS bears the burden of proof. The respondent (the person who was under investigation) is allowed to cross examine DSS's witnesses, use the subpoena power of the administrative agency to compel witnesses to appear, and introduce documents. The responded is also entitled to see the records of the investigator before the hearing.

If criminal charges are pending, means charges were filed but not finished, the administrative hearing can not take place until after the charges are disposed of favorably to the accused.

If the person who was investigated is found guilty or pleads guilty to any crime relating to the subject of the DSS investigation, they have no administrative appeal right.

The DSS process is so closely intertwined with the criminal process, it must be handled with special care. The police and DSS investigators often work side-by-side and share information. The interviews a person who is the subject of an investigation by DSS can be used against them later on in a criminal case, or even in a civil case involving custody or divorce. The rules of the investigation process and the administrative hearing are unique to these types of cases, and it requires an experienced practitioner to guide someone through these difficult times.