Oregon Department of Human Services

Rule Rule 407-045-0887
Child-In-Care Abuse Rules: Abuse Determination


(1) Abuse Determination Requirements.
(a) Except as provided in OAR 407-045-0886 (Child-In-Care Abuse Rules: Exception to Completing an Investigation) (Exception to Completing an Investigation), an abuse determination must be made for all reports of abuse that are determined to require an investigation under OAR 407-045-0835 (Child-In-Care Abuse Rules: Determining Response).
(b) When making an abuse determination the standard of proof is reasonable cause to believe.
(c) Based on the available evidence after conducting an investigation, the possible abuse determinations are:
(A) “Substantiated”, which means there is reasonable cause to believe the abuse occurred.
(B) “Unsubstantiated”, which means there is no evidence the abuse occurred.
(C) “Inconclusive”, which means there is some indication that the abuse occurred but there is insufficient evidence to conclude that there is reasonable cause to believe that the abuse occurred. The “Inconclusive” determination may only be used in the following circumstances:
(i) After extensive efforts have been made, the OTIS investigator is unable to locate the alleged victim; or
(ii) After completing the investigation, there is insufficient information to support an abuse determination of substantiated or unsubstantiated and the alleged victim is unable or unwilling to provide consistent information; or there is conflicting information from collateral contacts.
(2) Except as provided in section (4) of this rule, abuse of a child, for the purpose of making an abuse determination on a report subject to ORS 419B.005 (Definitions), includes, but is not limited to:
(a) Child selling, including the selling of a child that consists of buying, selling, bartering, trading, or offering to buy or sell the legal or physical custody of a child.
(b) Mental injury (psychological maltreatment), including cruel or unconscionable acts or statements made, threatened to be made, or permitted to be made by the respondent that has a direct effect on the child. The respondent’s behavior, intentional or unintentional, must be related to the observable and substantial impairment of the child’s psychological, cognitive, emotional, or social well-being and functioning.
(c) Neglect, including failure, through action or omission, to provide and maintain adequate food, clothing, shelter, medical care, supervision, protection, or nurturing. Neglect includes each of the following:
(A) Physical neglect, which includes each of the following:
(i) Failing to provide for the child’s basic physical needs including adequate shelter, food, and clothing.
(ii) Permitting a child to enter or remain in or upon premises where methamphetamines are being manufactured.
(iii) Unlawful exposure of a child to a substance that subjects a child to severe harm to the child’s health or safety. When the OTIS investigator is making a determination of physical neglect based on severe harm to the child’s health due to unlawful exposure to a substance, this determination must be consistent with medical findings.
(B) Medical neglect is a refusal or failure to seek, obtain, or maintain necessary medical, dental, or mental health care. Medical neglect includes withholding medically indicated treatment from infants who have disabilities and life-threatening conditions. However, failure to provide a child with immunizations or routine care alone does not constitute medical neglect. When the OTIS investigator is making a determination of medical neglect, this determination must be consistent with medical findings.
(C) Lack of supervision and protection, including failure to provide supervision and protection appropriate to the child’s age, mental ability, and physical condition.
(D) Desertion, which includes the respondent leaving the child with another person and failing to reclaim the child, or respondent failure to provide information about their whereabouts, providing false information about their whereabouts, or failing to establish a legal guardian or custodian for the child.
(E) Psychological neglect, which includes serious inattention to the child’s need for affection, support, nurturing, or emotional development. The respondent’s behavior must be related to the observable and severe harm of the child’s psychological, cognitive, emotional, or social well-being and functioning.
(d) Physical abuse, including an injury to a child that is inflicted or allowed to be inflicted by non-accidental means that results in harm. Physical abuse may include injury that could not reasonably be the result of the explanation given. Physical abuse may also include injury that is a result of discipline or punishment. Examples of injuries that may result from physical abuse include, but are not limited to:
(A) Head injuries;
(B) Bruises, cuts, lacerations;
(C) Internal injuries;
(D) Burns or scalds;
(E) Injuries to bone, muscle, cartilage, and ligaments;
(F) Poisoning;
(G) Electrical shock; and
(H) Death.
(e) Sexual abuse, which includes:
(A) A person’s use of a child for the person’s own sexual gratification, the sexual gratification of another person, or the sexual gratification of the child. Sexual abuse includes incest, rape, sodomy, sexual penetration, fondling, and voyeurism.
(B) Sexual exploitation, including, but not limited to, the use of a child in a sexually explicit way for personal gain to make money, in exchange for goods, services, or drugs, or to gain status. Sexual exploitation also includes using children in prostitution or using children to create pornography.
(C) Sex trafficking.
(f) Threat of harm, including all activities, conditions, and circumstances that place the child at threat of severe harm of physical abuse, sexual abuse, neglect, mental injury, or other abuse.
(3) Except as provided in section (4) of this rule, abuse of a child-in-care, for the purpose of making an abuse determination on a report subject to ORS 418.257 (Definitions for ORS 418.257 to 418.259), includes, among others, the following:
(a) Abandonment, including desertion or willful forsaking of a child-in-care, or the withdrawal or neglect of duties and obligations owed a child-in-care by a, child-caring agency, proctor foster parent, ODDS licensed group home, ODDS host home, ODDS foster parent, other individual, or an employee, volunteer, or contractor of a child-caring agency, proctor foster home, ODDS licensed group home, ODDS host home, or ODDS foster home.
(b) Financial exploitation.
(A) Financial exploitation includes:
(i) Wrongfully taking the assets, funds, or property belonging to or intended for the use of a child-in-care.
(ii) Alarming a child-in-care by conveying a threat to wrongfully take or appropriate moneys or property of the child-in-care if the child-in-care would reasonably believe that the threat conveyed would be carried out.
(iii) Misappropriating, misusing, or transferring without authorization any moneys from any account held jointly or singly by a child-in-care.
(iv) Failing to use the income or assets of a child-in-care effectively for the support and maintenance of the child-in-care.
(B) Financial exploitation does not include age-appropriate discipline that may involve the threat to withhold, or the withholding of, privileges.
(c) Involuntary seclusion:
(A) Involuntary seclusion means confinement of a child-in-care alone in a room from which the child-in-care is physically prevented from leaving.
(B) Involuntary seclusion includes:
(i) Involuntary seclusion of a child-in-care for the convenience of a child-caring agency, proctor foster parent, ODDS licensed group home, ODDS host home, or ODDS foster parent or an employee, volunteer, or contractor of a child-caring agency, proctor foster home, ODDS licensed group home, ODDS host home, or ODDS foster home; or
(ii) Involuntary seclusion of a child-in-care to discipline the child-in-care.
(C) Involuntary seclusion does not include age appropriate discipline, including but not limited to a time-out.
(d) Neglect:
(A) Neglect includes:
(i) Failure to provide the care, supervision, or services necessary to maintain the physical and mental health of a child-in-care; or
(ii) The failure of a child-caring agency, proctor foster parent, ODDS licensed group home, ODDS host home, ODDS foster parent, other person, or an employee, contractor, or volunteer of a child-caring agency, proctor foster home, ODDS licensed group home ODDS host home, or ODDS foster home to make a reasonable effort to protect a child-in-care from abuse.
(B) For purposes of this subsection, “services” includes, but is not limited to, the provision of food, clothing, medicine, housing, medical services, assistance with bathing or personal hygiene or any other service essential to the well-being of a child-in-care.
(e) Physical abuse, which includes:
(A) Any physical injury to a child-in-care caused by other than accidental means, or that appears to conflict with the explanation given of the injury; or
(B) Willful infliction of physical pain or injury upon a child-in-care.
(f) Sexual abuse:
(A) Sexual abuse includes:
(i) An act that constitutes a crime under ORS 163.375 (Rape in the first degree), 163.405 (Sodomy in the first degree), 163.411 (Unlawful sexual penetration in the first degree),163.415 (Sexual abuse in the third degree), 163.425 (Sexual abuse in the second degree), 163.427 (Sexual abuse in the first degree), 163.465 (Public indecency), 163.467 (Private indecency), or 163.525 (Incest);
(ii) Sexual harassment, sexual exploitation, or inappropriate exposure to sexually explicit material or language;
(iii) Any sexual contact between a child-in-care and an employee of a child-caring agency, proctor foster home, ODDS licensed group home, ODDS host home, ODDS foster home, or other person responsible for the provision of care or services to a child-in-care;
(iv) Any sexual contact between a person and a child-in-care that is unlawful under ORS chapter 163 and not subject to a defense under that chapter; and
(v) Any sexual contact that is achieved through force, trickery, threat, or coercion.
(B) For purposes of this subsection, “sexual exploitation,” as defined in ORS 419B.005 (Definitions)(1)(a)(E), includes, but is not limited to:
(i) Contributing to the sexual delinquency of a minor, as defined in ORS chapter 163, and any other conduct which allows, employs, authorizes, permits, induces or encourages a child to engage in the performing for people to observe or the photographing, filming, tape recording or other exhibition which, in whole or in part, depicts sexual conduct or contact, as defined in ORS 167.002 (Definitions for ORS 167.002 to 167.027) or described in ORS 163.665 (Definitions) and 163.670 (Using child in display of sexually explicit conduct), sexual abuse involving a child or rape of a child, but not including any conduct which is part of any investigation conducted pursuant to ORS 419B.020 (Duty of department or law enforcement agency receiving report) or which is designed to serve educational or other legitimate purposes; and
(ii) Allowing, permitting, encouraging or hiring a child to engage in prostitution as described in ORS 167.007 (Prostitution) or a commercial sex act as defined in ORS 163.266 (Trafficking in persons), to purchase sex with a minor as described in ORS 163.413 (Purchasing sex with a minor) or to engage in commercial sexual solicitation as described in ORS 167.008 (Commercial sexual solicitation).
(C) For purposes of this subsection, “sexual contact,” as defined in ORS 163.305 (Definitions), means any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.
(g) Verbal abuse:
(A) Verbal abuse includes threatening severe harm, either physical or emotional, to a child-in-care through the use of:
(i) Derogatory or inappropriate names, insults, verbal assaults, profanity, or ridicule; or
(ii) Harassment, coercion, threats, compelling or deterring conduct by threats, humiliation, mental cruelty, or inappropriate sexual comments.
(B) Verbal abuse does not include age-appropriate discipline that may involve the threat to withhold privileges.
(h) Wrongful use of a physical or chemical restraint of a child-in-care, excluding an act of restraint prescribed by a physician licensed under ORS chapter 677 and any treatment activities that are consistent with an approved treatment plan or in connection with a court order.
(A) For purposes of this subsection, “physical restraint” means the act of restricting a child-in-care’s voluntary movement. A physical restraint is authorized when it is an emergency measure in order to manage and protect the child-in-care or others from injury when no alternate actions are sufficient to manage the child-in-care’s behavior. “Physical restraint” does not include temporarily holding a child-in-care to assist him or her or assure his or her safety, such as preventing a child-in-care from running onto a busy street.
(B) “For purposes of this subsection, ”chemical restraint" means the administration of medication for the management of uncontrolled behavior.
(4) Abuse does not include reasonable discipline unless the discipline results in one of the conditions described in sections (2) or (3) of this rule.
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Last accessed
Jun. 8, 2021