Audit comes as state Department of Children and Family Services is under heavy scrutiny
Louisiana uses a lower standard of evidence to determine that an allegation of child abuse is valid when compared to more than a dozen other states, according to an audit released Monday by the state’s legislative auditor.
The audit contrasted the state’s process for adding caretakers accused of abuse to a “central registry” with 17 other states, examining how those registries are used and the level of due process involved for accused caretakers. Louisiana’s registry is not public, but the state uses the registry to background check child care providers and others who work directly with children.
The audit found that the Louisiana Department of Children and Family Services used “reasonable cause to believe” that a caretaker has committed abuse or neglect, which can land them on the registry.
But 14 of the other states auditors looked at — including Texas, Alabama and Arkansas — use a higher standard of “preponderance of evidence” before determining that abuse or neglect is valid. The higher standard — though still lower than what's required for a criminal conviction — requires greater than a 50% likelihood that the caretaker abused or neglected a child.
The audit references a 2017 Journal of Empirical Legal Studies examination of the types of standards required in child abuse and neglect investigations. That study said that the higher standard required comparing evidence both that supported and refuted an allegation, while lower standards did not require that sort of balancing.
“The study analyzed data from states that changed to a higher standard from a lower standard of evidence and found that while this change reduced the probability that reports of abuse/neglect would be found valid by 14%, it also resulted in an increase in the delivery of services to families, a possible decrease in foster care placements, and was not associated with an increase in total child fatalities,” the audit states.
DCFS officials told the state auditor that they consider contrary evidence before determining if an allegation of abuse or neglect is valid. If a finding is deemed valid, a caretaker can appeal that decision to the Louisiana Division of Administrative Law, where administrative law judges also weigh the evidence.
The audit found that the state could do more to notify accused caretakers about their findings and opportunity to appeal.
The state sends notification letters about findings of abuse and neglect by regular mail. Ten of the states that auditors surveyed deliver those letters through certified mail, in which a recipient must sign for them. Some states also take extra measures to determine that those letters are going to the correct address: Arkansas uses public-records databases to check for other addresses, while Kentucky and Iowa review family support and benefits data to check addresses as well.
The way that Louisiana’s determination letters are written may also be difficult to understand, with letters often referring to legal citations without explaining them, auditors found. Some states include lengthier explanations in their letters of why an allegation is valid, while others explain how recipients can request access to their own records. Arkansas also provides contact information for legal organizations that can help to represent caretakers in appeals hearings if they cannot afford a lawyer.
No state that the auditors surveyed provides legal counsel to those who cannot afford it in appeals. Louisiana’s Division of Administrative Law told auditors that most people who appeal their abuse and neglect findings are not represented by legal counsel, and the administrative law judges try to help make the process easy to understand.
“This can place individuals who cannot afford an attorney at a disadvantage when seeking to have a valid finding overturned,” the audit states.
The audit began in May, but its release comes at a time that DCFS is under widespread scrutiny. After multiple high-profile deaths this summer of children who were on DCFS’ radar, the Louisiana Legislature has called oversight hearings every six weeks to try to chart out a course for the agency’s future. DCFS has more than 400 vacancies while reports of child abuse and neglect across Louisiana are growing.
