Sec. 07.02.07.11. Child Abuse Disposition

A. Indicated Child Abuse.

(1) Physical Abuse with No Mental Injury. Except as provided in §A(3) of this regulation, a local department may make a finding of indicated child physical abuse if there is credible evidence, which has not been satisfactorily refuted, that the following four elements were present during the alleged child abuse:

(a) A physical injury;

(b) A child victim;

(c) A parent, caregiver, authority figure, or household or family member of the alleged victim responsible for the alleged abuse; and

(d) Circumstances including the nature, extent, and location of the injury indicating that the alleged victim’s health or welfare was harmed or was at substantial risk of harm.

(2) Sexual Abuse.

(a) A local department may make a finding of indicated child sexual abuse if there is credible evidence, which has not been satisfactorily refuted, that the following three elements were present during the alleged child sexual abuse:

(i) An act that involves sexual molestation, sexual exploitation, or sex trafficking;

(ii) A child victim; and

(iii) A parent, caregiver, authority figure, or household or family member of the alleged victim responsible for the alleged child sexual abuse, or sex trafficking of a child by any individual.

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

(3) Abuse - Mental Injury. A local department may make a finding of indicated child abuse with mental injury if there is credible evidence not satisfactorily refuted that the following five elements were present during the alleged child abuse with mental injury:

(a) A 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) A child victim;

(c) A parent, caregiver, authority figure, or household or family member of the alleged victim responsible for the alleged child abuse with mental injury;

(d) Mental injury caused by an intentional act or series of acts, regardless of whether there was an intent to harm the child; and

(e) Circumstances including the nature and extent of the mental injury indicating that the alleged victim’s health or welfare was harmed or was at substantial risk of harm.

B. Unsubstantiated Child Abuse.

(1) A local department may make a finding of unsubstantiated child abuse if there is insufficient evidence to support a finding of indicated or ruled out.

(2) A local department may base its finding of unsubstantiated child abuse on insufficient evidence:

(a) Supporting one or more elements of indicated child abuse; or

(b) Refuting one or more elements of indicated child abuse.

(3) A local department may find insufficient evidence supporting a finding of indicated child abuse for reasons including but not limited to:

(a) The lack of a credible account by the alleged victim or witness;

(b) The failure of the alleged maltreator to completely and credibly refute the allegations;

(c) A lack of access to the alleged victim or alleged maltreator despite reasonable efforts to obtain access; or

(d) An inability to obtain relevant facts regarding the alleged child abuse despite reasonable efforts.

C. Ruled Out Child Abuse.

(1) A local department shall make a finding that child abuse is ruled out if the local department finds that child abuse did not occur.

(2) The local department may base a finding of ruled out on:

(a) A lack of credible evidence supporting one or more elements of indicated child abuse; or

(b) A credible refutation of one or more of the elements of indicated child abuse; or

(c) A finding that the alleged maltreator was not responsible for the injury for reasons including but not limited to:

(i) The injury was caused by accidental means and was not caused by a reckless disregard for the child’s health or welfare; or

(ii) The injury was a result of the child's medical condition.

D. If the alleged maltreator was a child and not the parent of the alleged victim, the local department may consider the factors in Regulation .10D of this chapter to determine the appropriate finding.