Are DCFS “Indicated” Child Neglect Findings Crimes of Moral Turpitude? Probably Not.
Is a DCFS indicated finding of child neglect or abuse a CMT (Crimes of Moral Turpitude) under federal immigration guidelines?
DCFS is the state agency responsible for investigating non-criminal allegations of child abuse and neglect
DCFS need only find credible evidence of abuse or neglect, a significantly lower burden of proof than required to find someone guilty of a crime
Because DCFS investigations lack the due process guarantees afforded to criminal defendants, it is unlikely that immigration authorities would conclude that an indicated finding of abuse/neglect is a CMT
Not long ago I helped a legal resident apply for a Health Care Worker Waiver. The legal resident (whom I’ll call Rona) lost her job as an elderly caregiver when her employer ran her background and discovered Rona had a retail theft conviction.
I obtained Rona’s police arrest records. Much to my surprise, after her arrest the police contacted the Illinois Department of Children and Family Services (DCFS) and reported Rona for child neglect. Rona’s nine-year-old child was with her at the time she was arrested.[1]
Few people obtain legal representation when investigated by DCFS. Many parents probably don’t know that DCFS can remove children from their parents’ custody and impose conditions that must be met before the family is reunited.
Rona never mentioned the DCFS investigation. Given her limited grasp of the English language (especially reading and writing), it’s doubtful she understood the purpose of the investigation.
Police records reflect that DCFS concluded Rona had engaged in (child) neglect by placing her daughter at “substantial risk of physical injury/environment injurious to health and welfare.”
DCFS Doesn’t Need Much Evidence to Find Proof of Child Neglect or Abuse
If someone suspects a child is being abused or neglected by a parent or child caregiver, anyone can call DCFS’s hotline and make a report.
Many calls to the hotline are made by “mandated reporters” – people required by law to report child abuse/neglect allegations. Mandated reporters include: law enforcement, school and medical workers.
Unlike criminal charges -- which requires proof “beyond a reasonable doubt” to find someone guilty -- DCFS need only find “credible evidence” of child abuse or neglect.
Credible evidence is defined as the presence of facts “viewed in light of surrounding circumstances would cause a reasonable person to believe that a child may have been abused or neglected.” (Emphasis added.) Manual for Mandated Reporters, p. 21 (Sept. 2020 Rev. Ed.).
DCFS Findings Are Not Available to the Public
Most DCFS investigations conclude in one of two ways:
The abuse or neglect allegations are “unfounded” (no credible evidence), or
The abuse or neglect allegations are “indicated” (credible evidence found).
When someone is indicated for child abuse or neglect, the information is entered into DCFS’s central computer registry – CANTS.[2] The registry is not open to the public. In other words, unlike criminal records, which can be obtained from the county court clerk, DCFS findings are confidential.
Depending on how serious the indicated finding(s), the information can be maintained in CANTS for as long as 50 years. Even when allegations of abuse or neglect are not upheld, unfounded findings are stored in CANTS for five years.
In serious cases of abuse or neglect, DCFS can refer its findings to juvenile court for further prosecution. Parents have a right to legal representation when DCFS findings are referred to juvenile court or criminal charges of abuse or neglect are filed.
To uphold allegations of abuse or neglect in juvenile court, the allegations must be proven by the preponderance of the evidence. This burden of proof is higher than DCFS’s credible evidence standard but still less than the burden of proof used in criminal cases.
Is an Indicated Finding a Crime of Moral Turpitude?
Because of the significant differences between being charged with a criminal violation versus being investigated by DCFS, it is doubtful that immigration authorities would treat a DCFS indicated finding as a crime of moral turpitude by federal immigration authorities.
Most of the due process procedural safeguards criminal defendants receive are lacking in DCFS investigations: 1) no right to legal representation, 2) DCFS has a right to question the parent, as well as other family members as part of its investigation, and 3) indicated findings require only credible evidence (a very low burden to satisfy).
If a DCFS indicated finding is not a crime of moral turpitude, does the investigation need to be disclosed to immigration? Probably not. Unlike a criminal defendant, the subject of a DCFS investigation is never arrested. Still, it’s probably best to disclose this information to your immigration attorney.
Sometimes a DCFS investigation triggers a criminal investigation – the opposite of what happened in Rona’s case. When that happens, chances that someone could face criminal charges cannot be entirely ruled out.
[1] DCFS is the state agency responsible for investigating allegations of child abuse or neglect. Every state has an agency like DCFS.
[2] CANTS stands for Child Abuse and Neglect Tracking System.