FAQ: The Colorado Child Abuse Background Check Process

FAQ: The Colorado Child Abuse Background Check Process

Colorado Criminal Law: Child Abuse Allegations – Understanding the TRAILS Reporting System – The Colorado Department of Human Services

By The Steinberg Colorado Criminal Defense Law Firm for the Defense of Child Abuse Cases

Most of the states do not permit information from child abuse and neglect records to be disclosed to the public. In 27 States and DC, some disclosure of information is permitted in those cases in which abuse or neglect of the child has resulted in a fatality or near fatality.

In three States, the alleged offender – child abuser must be criminally charged with causing the fatality or near fatality before information may be disclosed.

The states of Georgia and South Carolina require public disclosure of information when a child in State custody has died.

About 13 States that allow disclosure of information only for the purpose of clarifying or correcting the record when information has already been made public through another source, such as disclosure by the subject of the report, a law enforcement agency, or the court.

THEN there are 5 States, COLORADO IS ONE OF THESE STATES – where public disclosure is allowed when a suspected perpetrator of abuse or neglect has been arrested or criminally charged.

The Colorado Department of Human Services – Office of Employment and Regulatory Affairs, Boards and Commissions Division – Child Abuse/Neglect Dispute Review Section provides these definitions of when, how and why a name is added to the Colorado Child Abuse Registry

Definitions and Trails Report Utilization

The Definitions:

· “Founded” means there exists a preponderance of credible evidence that the individual is responsible for the child abuse or neglect. See Rule 7.202.3

· “Inconclusive” means that there is some likelihood that the individual is responsible for the child abuse or neglect, but not a preponderance of evidence. See Rule 7.202.3

· “Unfounded” means that there is clear evidence that the individual is not responsible for child abuse or neglect. See Rule 7.202.3

· “Expunged” means that the founded report will be treated as though it did not exist for purposes of employment and background screening; it is still a “Founded” report for risk/safety purposes. See Rule 7.202.3

· “Overturned/Reversed” means that the “founded” report should be treated for all purposes as an “Unfounded” report. Rules 7.202.606D and 7.202.607E.

· “Modified” means that the changed category or severity level should be considered to be the correct Founded report. Rules 7.202.606D and 7.202.607E. Administrative Decisions

· “Upheld” means that the outcome of the appeal is that the report remains as “Founded” by the county. Rules 7.202.606D and 7.202.607E. Administrative Decisions

Report Utilization:

1. “Founded” means there exists a preponderance of credible evidence that the individual is responsible for the child abuse or neglect. “Founded” reports are directly accessed only by state/county dept. child protection workers and,

A. Are used by child protection workers as the origin of cases that are opened for services.

B. Are used as reference if there are additional allegations. See e.g. Rule 7.202.4

C. Are used if potential placement issues arise in the future. See e.g. Rule 7.202.54

D. Are referenced in responses for background screens for employment, volunteering, adoption, foster care, and individual requests. See C.R.S. Section 19-1-307.

2. “Inconclusive” means that there is some likelihood that the individual is responsible for the child abuse or neglect, but not a preponderance of evidence. “Inconclusive” reports are directly accessed only by state/county dept. child protection workers and,

A. Are used as reference if there are additional allegations. See e.g. Rule 7.202.533

B. Are used if potential placement issues arise in the future. See e.g. Rule 7.202.54

C. Are NOT referenced in responses for background screens for employment, volunteering, adoption, foster care, and individual requests. See C.R.S. Section 19-1-307.

4. “Unfounded” means that there is clear evidence that the individual is not responsible for child abuse or neglect. “Unfounded” reports are directly accessed only by state/ county dept. child protection workers and,

A. Are used as reference if there are additional allegations; however, the strong finding of non-responsibility should be used to add context. See e.g. Rule 7.202.4

B. Are used for information if placement issues arise in the future. See Rule 7.202.54

C. Are NOT referenced in responses for background screens for employment, volunteering, adoption, foster care, and individual requests. See C.R.S. Section 19-1-307.

4. “Expunged” means that the founded report will be treated as though it did not exist for purposes of employment and background screening; it is still a “Founded” report for risk/safety purposes. “Expunged” reports are directly accessed only by state/ county dept. child protection workers and,

A. Are used by child protection workers as the origin of cases that are opened for services.

B. Are used as “Founded” report if there are additional allegations. Rule 7.202.3

C. Are used as “Founded” report if placement issues arise in the future. Rule 7.202.3

D. Are NOT referenced in responses for background screens for employment, volunteering, adoption, foster care, and individual requests. See Rule 7. 202.3

Practical Applications:

· In accord with the Children’s Code, C.R.S. section 19-1-307, all child abuse or neglect records are confidential regardless of whether the report was determined to be founded, unfounded, inconclusive, upheld, modified or overturned. Thus, there is no access to these records by the general public.

· Unfounded, overturned and inconclusive reports are not referenced in response to background screens sent to the Background Investigations Unit of the State. See C.R.S. 19-1-307 referencing only “confirmed” or founded report information.

· Thus, Colorado’s treatment of unfounded/overturned (unsubstantiated) reports meets the federal and state law mandate for “expungement” without further specification.

· Federal law does not specifically refer to the treatment of “inconclusive” reports. In maintaining the confidentiality of those reports from the general public and not referencing the report in responses to background screens, Colorado law treats “inconclusive” reports similarly to unsubstantiated reports.

· Only Founded or Substantiated reports are “expunged” for employment or background screens because this is the only category of reports that would otherwise be released on a job screen.  

An Example of How the Colorado Department of Human Services Does Multiple Background Checks

CDHS Employment Background Check

Information Sheet

In helping individuals, families and communities to be safe and independent, the Colorado Department of Human Services (CDHS) intends to protect vulnerable individuals receiving services from CDHS from persons with a history or propensity toward abuse, assault or similar offenses against others.

All CDHS applicants and/or contracting employees AND FACILITIES AND THE EMPLOYEES THEREIN, who will have direct contact with individuals are required to successfully pass an employee background check. As stated in the job announcement, background clearance is a condition of employment. Adverse information itself is not necessarily disqualifying. However, an applicant or employee providing false information or knowingly omitting information during the background check process is subject to disqualification or termination. Successful completion of all elements of the employee background check may require one to work under conditional status pending the final outcome.

An employee background check includes the following:

• Name search of CBI records.

Name checks are checks completed using Colorado Bureau of Investigation (CBI) criminal history record information (CHRI). This information is based on name, birth date and social security number only. If your name is returned with CHRI it will be checked against the Vulnerable Persons Act, § 27-1-110 to ensure that your CHRI does not meet criteria in the law. If you have charges that meet criteria in the law, you will be sent a letter asking for disposition information if none is available. A disposition is the final outcome of the court case. To obtain disposition information, you must call or go to the court where the case was heard and ask the court clerk for the final disposition of the charges listed in the letter.

You must respond within 30 days or you will be disqualified from the position for which you applied. You can be disqualified if you have been convicted of a crime listed in the Vulnerable Persons Act, § 27-1-110 (7), C.R.S.

• TRAILS check.

This check reviews the child abuse and neglect records and reports in the TRAILS database. Founded cases of abuse or neglect will result in a disqualification from the position for which you have applied. Applicants who disagree with the information reported in TRAILS should contact the Dispute Resolution Section, Office of Appeals (303) 866-5934 and ask the state to review the county department’s records.

• HHS OIG Exclusion Program check (HCFA check).

This check reviews the U.S. Department of Health and Human Services, Office of Inspector General’s database of exclusions, i.e., those individuals who are excluded from participating in federally funded health care programs due to a program violation such as, but not limited to, a felony drug charge or an incident of patient abuse.

Please note that the Hiring Authority may proceed with the hiring process with those individuals who have been referred after successful completion of the background process. Your name can only be referred to the Hiring Authority after the above checks have been successfully passed.

Colorado Domestic Violence Lawyer