Following a child abuse/neglect investigation, a child protective services (CPS) investigator, usually in consultation with his or her supervisor, determines if the report should be substantiated or unsubstantiated. If the report is substantiated it means that the information gathered supports a finding of child abuse or neglect. If the report is unsubstantiated it means that the information gathered does not support a finding of child abuse or neglect.
Each state has its own unique scheme governing the practical application of the term “unsubstantiated” or other similar term. The resultant legal sufficiency of this term is extraordinarily complex. An unsubstantiated finding does not necessarily mean abuse or neglect did not take place; it just means there were insufficient or inadequate facts to rule the allegation as "substantiated." Indeed, “many of the children in unsubstantiated cases are eventually the subjects of subsequent CPS referrals” (Child Welfare Information Gateway, Children’s Bureau/ACYF, 2003, p. 1).[See Reducing Re-referral in Unsubstantiated Child Protective Services Cases at http://www.childwelfare.gov/pubs/focus/researchtopractice/researchtopractice.pdf]
From a policy and legal perspective, what are the implications of multiple, consecutive "unsubstantiated" findings, especially when the reports precipitating the findings are from different sources? How do we weigh the credibility of those sources? If the allegations involve abuse in foster care, day care, or a residential treatment facility, at what point should children no longer be placed in that home or facility despite no concrete finding of substantiated maltreatment?
Let’s take a brief look at two states’ definitional schemes. Kentucky (922 KAR 1:330, Section 1(9) & (11)) defines "substantiated" as: (a) An admission of abuse, neglect, or dependency by the person responsible; (b) A judicial finding of child abuse, neglect, or dependency; or (c) A preponderance of evidence exists that abuse, neglect, or dependency was committed by the person alleged to be responsible. "Unsubstantiated" means there is insufficient evidence, indicators, or justification present for substantiation of abuse, neglect, or dependency.
In contrast, Maine (10-148, Chapter 201, V. G., L. & O.) holds that “substantiated” means an administrative determination made by the Department of Health and Human Services that an individual or legal entity was the person responsible for a child who was subject to “abuse or neglect” where either (1) the abuse or neglect was of high severity or (2) the individual or legal entity poses a threat of harm to children for whom the individual or legal entity may become responsible through employment or volunteer activities.
“Indicated” means an administrative determination made by the Department that an individual or legal entity was a person responsible for a child who was subject to “abuse or neglect,” that the abuse or neglect was of low to moderate severity, and that the individual or legal entity poses no threat of harm to children for whom the person might be responsible through employment or volunteer activities. “Unsubstantiated” means an administrative determination made by the Department that a child was not subject to “abuse or neglect.”
Note that Maine’s definition of “unsubstantiated” implies that no abuse took place. Kentucky’s definition of “unsubstantiated” is less definitive; there is simply insufficient evidence, indicators, or justification for substantiation. Converting these definitions to a mathematical metaphor, should Maine place a value of zero on cases which are unsubstantiated? What number should be used for Kentucky? Common sense forces us to conclude that multiple reports of alleged maltreatment, even though all unsubstantiated, indicate that where there's smoke there may be fire.
Whatever the exact definition of “unsubstantiated,” departments should strongly consider undertaking a rigorous performance audit of each case in which multiple unsubstantiated allegations are made. The purpose would be to establish whether supervisors and administrators are sufficiently satisfied that the case information is thorough and the previous findings are accurate and reliable. Multiple allegations of abuse/neglect are not merely a series of isolated incidents; they must be seen cumulatively, possibly portraying a history of harm.
Daniel Pollack is professor at Yeshiva University’s School of Social Work in New York City, and a frequent expert witness in child welfare cases. He can be reached at email@example.com. This article originally appeared in Policy & Practice, 70(4), 36.