(a) Purpose. This part establishes standards, requirements and procedures for investigations by ORR of allegations of child abuse and neglect of an unaccompanied child in ORR custody alleged to have been committed by care provider facility staff, contractors or sub-grantees of the care provider facility, care provider facility volunteers, or other individuals who have access to children in ORR care through contracts or grants with ORR, subject to § 412.100(c).

(b) Severability. The provisions of this part are separate and severable from one another. If any provision is stayed or determined to be invalid by a court of law, the remaining provisions shall continue in effect.

(c) Applicability. This part applies to:

(1) Care provider facilities housing unaccompanied children in States where the State agency responsible for investigating child abuse and neglect allegations will not investigate such allegations in ORR-funded care provider facilities; and

(2) Emergency or influx facilities (EIFs).

(d) Reporting. Care provider facilities to whom this part applies must have written policies and procedures that allow unaccompanied children, care provider facility staff, contractors or sub-grantees of the care provider facility, care provider facility volunteers, families of unaccompanied children, legal service providers, child advocates, attorneys of record, and any other persons, to report allegations of child abuse and neglect to ORR directly, to the care provider facility, or to a designated entity or office that is not part of the care provider facility. The care provider facility written policies and procedures must:

(1) Provide unaccompanied children and other individuals with methods for reporting and inform them of how they can report an allegation of child abuse and neglect to a designated entity or office that is not part of the care provider facility. Such entity or office must be able to receive allegations of child abuse and neglect and must immediately forward such allegations to ORR. The method for reporting must allow unaccompanied children to remain anonymous upon request.

(2) Ensure all the methods of reporting described at § 412.100(d)(1) are accessible for unaccompanied children with disabilities and with limited English proficiency.

(3) Ensure that unaccompanied children, staff, or others who report allegations of child abuse and neglect are protected against retaliation.

(e) Investigations. When receiving reports of allegations of child abuse and neglect and conducting investigations, ORR must ensure the health and safety of unaccompanied children while making every effort to reduce further trauma to the alleged victim(s).

(1) If ORR receives a report of an allegation of child abuse or neglect, it must generate an intake report and determine whether the report includes an allegation that, if found to be true, would meet the definition of child abuse and neglect in this part and is consistent with § 412.100(a) and (c). If so, ORR will assign the intake report for investigation. If not, ORR will administratively close the report.

(2) If ORR determines that an intake report is appropriate for investigation, ORR shall assign an ORR Child Welfare Investigator to make a prompt and thorough investigation of the report to obtain sufficient information to determine whether the allegation of child abuse or neglect is substantiated, either at Tier I or II, based on a preponderance of the evidence.

(3) ORR shall provide notification that an allegation of child abuse and neglect will be investigated by ORR to the alleged perpetrator; care provider facility; alleged victim; alleged victim's attorney of record (if the child has an attorney of record); and the alleged victim's parent(s), legal guardian(s), or sponsor(s) (as appropriate), unless ORR has evidence showing the parents, legal guardians, or sponsors should not be notified or the victim is 14 years old or older. If the alleged victim is 14 years old or older and ORR has determined that the alleged victim is able to make an independent decision, the alleged victim can affirmatively consent to disclosure.

(4) Upon notification that an investigation has been initiated, the care provider facility must take immediate responsive measures, for the protection of child welfare, and notify the alleged perpetrator, as appropriate, and ORR of such measures. These measures may extend throughout the pendency of an investigation, and during the pendency of the appeal and review process, as necessary and applicable.

(5) Investigations process. (i) ORR shall coordinate with any local or State law enforcement agencies, or other Federal agencies, as appropriate, during its investigation. ORR may pause or resume an investigation at its discretion, with input from law enforcement partners or other relevant investigatory bodies, as necessary.

(ii) A multidisciplinary team of ORR staff that includes subject matter experts, shall be established, as necessary, to provide input and an assessment of the reported allegation of child abuse or neglect to assist the ORR Child Welfare Investigator.

(iii) During the investigation, the ORR Child Welfare Investigator must complete, at a minimum, the following actions:

(A) Upon receiving an intake report, review the intake report and the care provider facility's records on the alleged victim and alleged perpetrator, conduct background checks on the alleged perpetrator, interview the person who reported the allegation if this person was not interviewed during intake, immediately request preservation of any potential video and documentary evidence, and as needed, establish a plan for thoroughly investigating the allegation;

(B) Visit the care provider facility, as appropriate, to conduct a walkthrough of the facility and review video and documentary evidence;

(C) Make reasonable efforts to interview all individuals who have information relevant to the allegation of child abuse or neglect, including, but not limited to, the alleged perpetrator (as appropriate), care provider facility staff, the alleged victim, sponsor(s), and the parent(s) or legal guardian(s) (as appropriate) of the alleged victim, and any other potential witnesses;

(D) Ensure that interviews conducted as part of the investigation are accessible for individuals with disabilities and with limited English proficiency and are properly documented either in writing or by audio or video recording;

(E) Gather all relevant information, including documents and audio or video evidence;

(F) Review any available evidence of past conduct contained in DCPI's records relating to the same alleged perpetrator, except for allegations that resulted in a finding of unfounded or administrative closure; and

(G) Assess the ongoing risk of child abuse or neglect to the unaccompanied children at the care provider facility and, as appropriate, request that the care provider facility implement a plan to mitigate the risk and ensure the safety of the children.

(6) After the investigation is complete, ORR may make any of the following dispositions based on the preponderance of the evidence for each reported allegation:

(i) Substantiated allegation—Tier I;

(ii) Substantiated allegation—Tier II;

(iii) Not substantiated allegation;

(iv) Unfounded allegation; or

(v) Administrative closure.

(7) Automatic Tier I substantiating circumstances. The existence of any one of the following circumstances in connection to a substantiated finding, by a preponderance of the evidence, of child abuse or neglect shall result in an automatic finding of Substantiated allegation—Tier I:

(i) The death or near death of a child as a result of child abuse or neglect;

(ii) Subjecting or exposing a child to sexual abuse or sexual harassment;

(iii) The infliction of injury or creation of a condition requiring a child to be hospitalized or to receive significant medical attention;

(iv) Repeated instances of physical abuse committed by the individual against any unaccompanied child in ORR care;

(v) Failure to take reasonable action to protect a child from sexual abuse or repeated instances of physical abuse under circumstances where the individual knew or should have known that such abuse was occurring; and

(vi) Depriving a child of necessary care (food, shelter, healthcare, supervision) which either caused serious harm or created a substantial risk of serious harm.

(8) Aggravating factors and mitigating factors. If ORR determines that there are no automatic Tier I substantiating circumstances under § 412.100(e)(7), ORR shall consider the following aggravating and mitigating factors together in determining if child abuse or neglect should be substantiated at Tier I or II. Consideration of aggravating and mitigating factors will be based on the totality of the circumstances and the interest of protecting child welfare:

(i) Aggravating factors. Aggravating factors shall be weighed together with any existing mitigating factors. Aggravating factors include any of the following:

(A) Violations of ORR behavior management requirements pursuant to § 410.1304;

(B) The individual's failure to comply with clearly established care provider facility policies, corrective action plans, or agreed-upon conditions;

(C) The tender age, delayed developmental status or other vulnerability of the child;

(D) Any significant or lasting physical, psychological, or emotional harm to the child;

(E) An attempt to inflict any significant or lasting physical, psychological, or emotional harm to the child;

(F) Evidence suggesting a repetition or pattern of abuse or neglect, including multiple instances in which child abuse or neglect was substantiated at Tier I or Tier II and not substantiated allegations if they demonstrate a pattern of abuse or neglect or harm.

(ii) Mitigating factors. Mitigating factors shall be weighed together with any existing aggravating factors. Mitigating factors include any of the following:

(A) Remedial actions taken by the individual before the investigation was concluded;

(B) Extraordinary, situational, or temporary stressors that caused the individual to act in an uncharacteristically abusive or neglectful manner;

(C) The isolated or aberrational nature of the child abuse or neglect; and

(D) The limited, minor, or negligible physical, psychological, or emotional impact of the abuse or neglect on the child.

(f) Confidentiality. Records created and information gathered or obtained during an investigation are for internal purposes only, will not be shared or made public unless otherwise required or authorized by law, and may not be disclosed without prior ORR approval. All records must be maintained in an appropriate recordkeeping system with protections for the privacy and security of the individuals identified in the records.

(g) Notifications of a Disposition. (1) ORR must notify the alleged perpetrator of the disposition in writing within five days of making a disposition. ORR must also notify in writing the alleged victim, their parent(s) or legal guardian(s) (as appropriate), or sponsor(s), of the disposition within five days of making a disposition.

(2) If the disposition is substantiated at Tier I, the notification must state:

(i) The substantiated perpetrator will be considered a Tier 1 sustained perpetrator and their name and other details related to the relevant abuse or neglect findings will be placed on the ORR Central Registry, unless they seek an appeal of the disposition pursuant to § 412.102, and that once identified in the ORR Central Registry they will be prohibited from working or volunteering in any way on ORR-funded grants or contracts, and may not have access to or contact with any unaccompanied child in ORR custody;

(ii) The reasons for the Tier I substantiated perpetrator's placement on the ORR Central Registry in terms sufficient to put the perpetrator on notice of the conduct or incident(s) upon which it is based;

(iii) The Tier I substantiated perpetrator may appeal ORR's disposition pursuant to § 412.102, but that if the Tier I substantiated perpetrator either fails to timely submit a notice of appeal, or upon conclusion of the appeal and subsequent review, if any, the disposition is upheld, the Tier I substantiated perpetrator will be added to the ORR Central Registry as a Tier I sustained perpetrator and the disposition will be reported to Federal, State, and local authorities, as appropriate; and

(iv) ORR's procedures for making the disposition.

(3) If the disposition is substantiated at Tier II, the notification must inform the Tier II substantiated perpetrator that they may appeal ORR's disposition pursuant to § 412.102, but that if they either fail to timely submit a notice of appeal, or upon the conclusion of the appeal and subsequent review, if any, the disposition is upheld, the Tier II substantiated perpetrator will be designated as a Tier II sustained perpetrator and ORR's disposition will be retained in ORR records. ORR may use these records to determine patterns of child abuse and neglect and to inform future safety planning at care provider facilities. A Tier II sustained perpetrator will not be placed on the ORR Central Registry.