Or. Admin. Code § 419-230-0170

Current through Register Vol. 63, No. 12, December 1, 2024

Section 419-230-0170 - Abuse Determination

(1) Except as provided in OAR 419-230-0160 (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 419-230-0130.

(a) When making an abuse determination the standard of proof is reasonable cause to believe.

(b) Based on the available evidence after conducting an investigation, the possible abuse determinations are:

(A) "Founded," which means there is reasonable cause to believe the abuse occurred.

(B) "Unfounded," which means there is no evidence the abuse occurred.

(C) "Unable to Determine," which means there is insufficient evidence to conclude that there is reasonable cause to believe the abuse occurred. "Unable to Determine" 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 founded or unfounded; 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 (3), 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.

(F) Failure by a public education program as described in ORS 339.296.

(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.

(g) For incidents on or after July 1,2023:

(A) The restraint or seclusion of a child in violation of ORS 339.285, 339.288, 339.291, 339.303 or 339.308; or

(B) The infliction of corporal punishment on a child in violation of ORS 339.250 (9).

(3) Abuse does not include reasonable discipline unless the discipline results in one of the conditions described in section (2) of this rule.

Or. Admin. Code § 419-230-0170

DHSD 36-2019, adopt filed 12/30/2019, effective 01/01/2020; DHS 6-2021, amend filed 03/31/2021, effective 04/01/2021; DHS 4-2023, temporary amend filed 08/31/2023, effective 09/01/2023 through 02/27/2024; DHS 18-2023, amend filed 12/22/2023, effective 01/01/2024; DHS 15-2024, renumbered from 407-047-0270, filed 10/30/2024, effective 11/1/2024; OTIS 42-2024, minor correction filed 11/01/2024, effective 11/1/2024

Statutory/Other Authority: ORS 409.050 & ORS 419B.019

Statutes/Other Implemented: ORS 419B.005 to 419B.050, Section 8, chapter 581, OL 2023 (Note ORS 419B) & ORS 339.296