Division of Child & Family Services
Utah Department of Human Services
Child Protection Services–Attorney Jake Gunter
Substantiation Hearing on Supported Findings.
Have you been contacted by a Utah Child Protection Services worker? Are you being accused of child abuse, child sex abuse or neglect? A supported finding of child abuse by the State of Utah carries serious collateral consequences.
Here is how to challenge a “Supported Finding” of child abuse in Utah’s Juvenile Courts.
(1). Child Welfare Case. If a full-blown child welfare case has been opened up and your children were taken from you, you should hire an attorney to challenge the case. See this article on child welfare proceedings and what their process and procedure looks like. During the adjudication trial is where you would challenge these types of allegations against you. If your children were not removed, or a full-blown child welfare case was not initiated, see your next option to challenging these allegations.
(2). Supported Findings. No Child Welfare Case. Sometimes a supported finding of child abuse can occur without the child being removed from the home and a full-blown child welfare case being opened up. This often occurs when the alleged perpetrator is not the parent, but another child or adult who does not live in the home.
At the end of the Division of Child & Family Services’ (“DCFS”) investigation, the Utah child protection worker will have to make one of the following findings:
(1). Supported. “Supported” means a finding by the division based on the evidence available at the completion of an investigation that there is a reasonable basis to conclude that abuse, neglect, or dependency occurred. Each allegation made or identified during the course of the investigation shall be considered separately in determining whether there should be a finding of “supported.” Utah Code 62A-4a-101(41) (2023).
(2). Unsupported. “Unsupported” means a finding at the completion of an investigation that there is insufficient evidence to conclude that abuse, neglect, or dependency occurred. However, a finding of “unsupported” means also that the division worker did not conclude that the allegation was without merit. Utah Code Ann. 62A-4a-101(45) (2023).
(3). Without Merit. “Without merit” means a finding at the completion of an investigation by the division, or a judicial finding, that the alleged abuse, neglect, or dependency did not occur, or that the alleged perpetrator was not responsible for the abuse, neglect, or dependency. Utah Code Ann. 62A-4a-101(46) (2023).
PROCESS FOR CHALLENGING THESE CHILD WELFARE FINDINGS IN UTAH
The Utah Division of Child & Family Services is an agency of the greater Utah Department of Human Services. This agency investigates child abuse. If DCFS has investigated you and made a finding of abuse against you, DCFS is supposed to mail a letter to you indicating your options. This letter is often labelled “NOTICE OF AGENCY ACTION.” As of 2023 this letter tells you how to get the documents in your file through a GRAMA request. How to challenge the findings in a Utah Juvenile Court or petition for internal review by DCFS.
UTAH CODE 62A-4a-1005(3)(a) (2023). RIGHT TO ASK THE JUVENILE COURT TO REVIEW THE UNDERLYING ABUSE FINIDING
After you receive a Notice of Agency Action letter indicating that you have been found by DCFS to be a child abuser, you have the following rights:
(1). Challenge the supported child abuse finding with an additional internal review by Division of Child & Family Services.
(2). Challenge the supported child abuse finding by asking a Utah Juvenile Court to review the case in a full evidentiary hearing.
The first option of having an additional internal review of the already supported findings sounds crazy. This option has the same division with the same like-minded people reviewing your case.
The second option is still difficult, but at least you will have an independent judge review the case for adequate evidence of child abuse.
EVIDENTIARY HEARING:
If you seek option two, judicial review of the underlying supported finding for child abuse, the Utah Rules of Evidence will apply and it will be a full bench trial on the matter.
BURDEN OF PROOF:
Since the government is trying to take away a liberty interest from you, calling you a child abuser and then placing you on internal child abuse registries, the Government has the burden of proof by a preponderance of the evidence.
Utah’s Model Jury Instruction defines preponderance as follows:
CV117 Preponderance of the evidence.
You may have heard that in a criminal case proof must be beyond a reasonable doubt, but this is not a criminal case. In a civil case such as this one, a different level of proof applies: proof by a preponderance of the evidence.
When I tell you that a party has the burden of proof or that a party must prove something by a “preponderance of the evidence,” I mean that the party must persuade you, by the evidence, that the fact is more likely to be true than not true.
Another way of saying this is proof by the greater weight of the evidence, however slight. Weighing the evidence does not mean counting the number of witnesses nor the amount of testimony. Rather, it means evaluating the persuasive character of the evidence. In weighing the evidence, you should consider all of the evidence that applies to a fact, no matter which party presented it. The weight to be given to each piece of evidence is for you to decide.
After weighing all of the evidence, if you decide that a fact is more likely true than not, then you must find that the fact has been proved. On the other hand, if you decide that the evidence regarding a fact is evenly balanced, then you must find that the fact has not been proved, and the party has therefore failed to meet its burden of proof to establish that fact.
[Now] [At the close of the trial] I will instruct you in more detail about the specific elements that must be proved.
Preponderance is not Guilty Beyond a Reasonable Doubt, which is the highest legal burden used in American courts. Preponderance is the lowest legal burden used. Proof by Clear and Convincing Evidence is the middle burden.
EXPUNGEMENT OF SOME FINDING IS NOW POSSIBLE AS OF 2021
Prior to 2021 DCFS findings were never expungeable. Certain findings are still never expungeable, but many are. If you lose at a substantiation hearing those findings are never expungeable.
See this expungement article on clearing your juvenile and adult criminal record.
HIRE A COURTROOM ADVOCATE TO CHALLENGE YOUR FINDINGS.
Trial lawyer Jake Gunter at Howard Lewis & Petersen, PC have the courtroom experience to advocate for your legal rights. Call now to discuss your case with child protection services. (801) 373-6345.
