9 CAR § 40-1004. Appeals and hearings of true child maltreatment determinations

(a)(1) The Office of Appeals and Hearings will notify the Division of Children and Family Services that an appeal has been filed. (2) The Division of Children and Family Services investigator responsible for the case will: (A) Prepare an investigative file immediately; and (B) Make it available to: (i) The petitioner; (ii) Any representative; (iii) The Office of Chief Counsel attorney; and (iv) The Appeals and Hearings Section. (b)(1) At least ten (10) days prior to the administrative hearing, the alleged offender and the Division of Children and Family Services will share any information (with the other party), that the party intends to introduce into evidence at the hearing but that is not previously contained in the record. (2) Additionally, if any child served with a subpoena to be a witness in an administrative hearing is a party to an open dependency-neglect case, the child’s attorney ad litem will be provided a copy of the subpoena. (c)(1) The Office of Appeals and Hearings will send a notice of hearing which contains the time, date, and place of the hearing as well as the name of the hearing officer who will conduct the hearing. (2) The hearing will be held by telephone if neither party requests that the hearing be conducted in person. (3) If the hearing is held in person, the location will be in an office of the Department of Human Services nearest to the petitioner’s residence unless the Administrative Law Judge (ALJ) determines that the hearing will be conducted via video teleconference. (d)(1) Upon receipt of notice that a true child maltreatment determination is the subject of an appeal, the Division of Children and Family Services investigator and the Division of Children and Family Services supervisor or Crimes Against Children Division investigator and Crimes Against Children Division supervisor (as appropriate), Office of Chief Counsel attorney and the Division of Children and Family Services Area Manager will consult to review the evidence used to establish the true determination and ascertain the impact of any subsequent events of the case after the determination was made. (2) If the consultation reveals no merit for defending the true finding, the Division of Children and Family Services Area Manager will complete the Notice of Non-Defense of a True Child Maltreatment Investigative Determination and provide a copy to the: (A) County Supervisor; (B) Office of Chief Counsel attorney; and (C) Assistant Director of Field Operations. (3) The Office of Chief Counsel attorney will inform the Office of Appeals and Hearings of the decision not to defend. (4) The Notice of Non-Defense of a True Child Maltreatment Investigative Determination will be included in the investigative file, as applicable. (5) If the consultation reveals merit for defending the true determination, the appropriate office/unit, or both must designate a representative who must be familiar with the circumstances leading to the adverse decision. (6) The representative must be able to summarize the pertinent aspects of the situation and present the documentation to support the basis for the determination. (7) The representative will also be able to answer questions posed by the petitioner or the hearing officer relative to the issue and should be prepared to cross-examine witnesses. (e)(1) The Office of Chief Counsel will assign an attorney to represent the investigative agency at the hearing only if the petitioner has an attorney. (2) However, an Office of Chief Counsel attorney may provide assistance in case preparation even if the attorney will not be at the hearing. (3) If the petitioner appears at the hearing with an attorney without having first notified the division, the investigator shall ask for a continuance so that an Office of Chief Counsel attorney may be appointed. (f) Division of Children and Family Services employees will be expected to attend hearings and present testimony without the benefit of a subpoena and will be notified by the Office of Appeals and Hearings of their required presence at the hearing. (g) If a division employee receives a subpoena requesting the appearance at an administrative hearing or to provide documents, the employee shall send the subpoena to their local Office of Chief Counsel attorney upon request. (h)(1) The Division of Children and Family Services representative will be notified of any witnesses requested by the petitioner requesting the hearing. (2) The Division of Children and Family Services representative will have five (5) calendar days from the receipt of this notice to request a rebuttal witness list. (i)(1) The Office of Chief Counsel will issue the subpoenas under the authority of Arkansas Code §§ 12-18-802 and 20-76-201. (2) The Chief Counsel of the department may designate someone to sign subpoenas issued for administrative hearings on child maltreatment. (j) Administrative hearing decisions and all exhibits submitted at the hearing are confidential and may be used or disclosed only as provided in Arkansas Code § 12-18-809. (k)(1) The ALJ may amend an investigative determination during (but not after) an administrative hearing to conform with the evidence presented. (2) If the alleged offender could not reasonably infer the amended investigative determination from the investigative records and information submitted by the Division of Children and Family Services, the ALJ may grant a request for continuance to the alleged offender. (l) Final administrative action must be completed within one hundred eighty (180) calendar days from the receipt of the appeal by the Appeals and Hearings Section unless otherwise allowed by Arkansas state law. (m) Delays in completing the administrative hearing that are attributable to either party shall not count against the limit of the one hundred eighty (180) days if the ALJ determines that good cause for the delay is shown by the party requesting the delay and the request for the delay is made in writing and delivered to the Office of Appeals and Hearings and all other parties. (n) Failure to complete the hearing process in a timely fashion shall not deprive the Division of Children and Family Services or a court reviewing the child maltreatment determination of jurisdiction to make a final agency determination or review a final agency determination pursuant to the Arkansas Administrative Procedure Act, Arkansas Code § 25-15-201 et seq. (o) The decision becomes final unless appealed and subsequently overturned in a court of law. (p)(1) Upon request by the petitioner, the Division of Children and Family Services shall provide a list of persons who were told previously that the report was “True”. (2) The Social Service Specialist will provide a copy of the administrative hearing order upon request by a subject of the report. (q) If the petitioner fails to appear for the hearing and does not contact the Office of Appeals and Hearings prior to the date of the hearing, the appeal will be dismissed.