A GUIDE FOR
MANDATED REPORTERS
Alameda County Child Abuse Prevention Council
Janette Bormann--Director
510-780-8989
Penal code 11164-11174
All fifty states have passed some form of legislation
regarding mandatory reporting of child abuse and neglect in response to the
Child Abuse Prevention and Treatment Act, federal legislation which originally
passed in 1974. California has the Child Abuse and Neglect Reporting Act
(CANRA), which is part of the Penal Code.
This act defines what is meant by the terms “abuse” and “neglect,” and
it requires certain categories of people who routinely work with children to
report their suspicion that abuse has occurred. (The term "abuse" is at times used to encompass all
types of child abuse and neglect.)
CANRA designates the agencies that must receive and
investigate reports of child abuse and neglect, generally social services and law
enforcement agencies. State and local
agencies are required to cross-report and set up mechanisms for sharing
information. CANRA also states, “In any
investigation of suspected child abuse, all persons participating in the
investigation of the case shall consider the needs of the child victim and
shall do whatever is necessary to prevent psychological harm to the child
victim."(Penal Code 11164.b)
The California
Department of Justice maintains a statewide index called the Child Abuse
Central Index (CACI), which contains information from all reports of physical
abuse, sexual abuse, and severe neglect investigations in which the allegations
were not determined to be unfounded.
Mandated
Reporters
Professionals who work with or regularly come into contact
with children have a crucial role in their protection. Mandated reporters are
designated as such because they are in a position to receive information that a
child is or may be at risk, and to pass this information on to the agencies
that can intervene to protect the child.
People who must make a Suspected Child Abuse Report include any child
care custodian, health practitioner, employee of a child protective agency,
child visitation monitor, firefighter, animal control officer, humane society
officer, commercial film and photographic print processor, or clergy member,
"who has knowledge of or observes a child, in his or her professional
capacity or within the scope of his or her employment, whom he or she knows or
reasonably suspects has been the victim
of child abuse."
CANRA describes the process of submitting a report and sets
penalties for mandated reporters who fail to report. It also protects the confidentiality of the information in the
report and protects mandated reporters from civil and criminal liability. In addition, CANRA states that reporting
duties are "individual, and no supervisor or administrator may impede or
inhibit the reporting duties, and no person making a report shall be subject to
any sanction for making the report."
Agencies and schools may establish internal procedures to facilitate
reporting and apprise supervisors and administrators of reports, but cannot
require any employee mandated to make reports to disclose his or her identity
to the employer.
Because the duty to report is individual, reporting the
information regarding a case of possible child abuse or neglect to an employer,
supervisor, school principal, school counselor, co-worker, or other person is not a substitute for making a
mandated report to an appropriate agency.
However, if two or more persons have knowledge and agree, a single
report may be made.
Mandatory reporting is based on our societal duty to protect
children and the recognition that without these guidelines and regulations, far
fewer children and families would be given the intervention services
needed. Protecting the identified child
may also provide the opportunity to protect other children in the home. It is equally important to provide help for
the parents, who may be unable to ask for help directly. The report of abuse may be a catalyst for
bringing about change in the home environment, which may in turn lower the risk
of abuse in the home.
Non-Mandated Reporters
A non-mandated reporter is any person who
has knowledge of, observes, or reasonably suspects abuse and reports it without
being obligated to do so. Non-mandated
reporters may report anonymously, and there is no penalty for not
reporting. When you have a suspicion of
abuse or neglect of a child, but you are not within your professional capacity
as a mandated reporter - for instance, you witness an incident in your
neighborhood - you are a non-mandated reporter. Non-mandated reports constitute a significant number of the
reports received by child protection and law enforcement agencies.
The identity of all
reporters, mandated or non-mandated, is confidential information and may only
be revealed according to the standards set forth in CANRA.
Reasonable Suspicion
Reasonable suspicion is the standard mandated reporters must
use in deciding whether they should make a report to a child protection
agency. According to CANRA,
"reasonable suspicion" means that it is objectively reasonable for a
person in a similar position, drawing on the facts of the case and his/her
training and experience, to suspect child abuse or neglect. It does not mean the mandated reporter is
responsible for confirming his or her suspicions before making a report, only
that someone else in his or her position could draw the same conclusion based
on the information available.
MAKING A SUSPECTED CHILD ABUSE REPORT
A child abuse report from a mandated reporter has two
components. First, you must make a
report immediately or as soon as practically possible by
telephone. Then, within 36 hours of receiving the information concerning the incident,
you must prepare and send a written report on the Suspected Child Abuse Report
Form (PC11166) to the agency to which you made the report. (These forms may be requested from Children
and Family Services by calling (510) 670-9794, and it is advisable to keep
several blank ones on file so they are available when needed.)
To make a report, you may call either the 24-hour child abuse reporting
hotline for Alameda County at (510) 259-1800 or the local law enforcement
agency having jurisdiction. Incidents
or issues involving a non-relative perpetrator, when there is no suspicion of
parental non-protection, are typically investigated by the police and may be
directly reported to the law enforcement jurisdiction where the crime took
place.
The
following information is recorded on the Suspected Child Abuse Report Form: the
name, business address, and telephone number of the mandated reporter, and the
capacity that makes the person a mandated reporter; the child's name and
address, present location, and, where applicable, school, grade, and class; the
names, addresses, and telephone numbers of the child's parents or guardians;
the information that gave rise to the reasonable suspicion of child abuse or
neglect and the source or sources of that information; and the name, address,
telephone number, and other relevant personal information about the person or
persons who might have abused or neglected the child. The mandated reporter must
make a report even if some of this information is not known or is uncertain to
him or her.
A common error is to send in the form without calling in the
report, or to wait until the form is filled out and approved by a principal or
supervisor before making the call. This
inadvertently places the mandated reporter in violation. It also may impede the ability of an
investigator to interview a child in a timely manner or document injuries that
substantiate the allegations.
WHAT HAPPENS AFTER A REPORT IS MADE?
In Alameda County, when a
reporter calls the Emergency Response hotline the information is taken by a
Child Welfare Worker in the Screening Unit, who prepares a face sheet,
narrative, and any history of previous referrals or CPS involvement available
on the family or child. A supervisor
reviews the information and makes the determination of whether an in-person
investigation is required. When the
information given does not meet the criteria for child abuse or neglect at the
present time, the report is "screened out," and there is no in-person
investigation. In this case, the
information in the report is kept on file and is accessible to other county
child welfare and law enforcement agencies.
If an in-person
investigation is determined to be necessary, a response time will be
determined, and the investigation will be assigned to an Emergency Response
field worker. The two response times
are "immediate" or "within 10 days," depending on the
immediacy of the risk presented by the information in the report. As a mandated reporter, you are entitled to
know whether or not the referral has been assigned for investigation, and you
may call back to request this information.
Meanwhile,
agencies are responsible for cross-reporting to each other information received
about suspected child abuse. Emergency
Response Workers and law enforcement will often work together, although their
investigations will be separate. When
abuse has occurred within a family, the Child Welfare Worker's emphasis is to
ensure the safety of the child and provide services to keep the family
together.
In attempting to
ascertain the level of risk, the Emergency Response Worker will usually first
attempt to talk with the child named in the referral about the concerns, then
with other children in the family, and then parents or caregivers. Interviews with children are done in the
school environment whenever possible.
Children are
removed from the home when they cannot remain there safely. With reasonable cause, a peace officer may
take a child into temporary custody without a warrant while a situation is
being investigated. Children are
usually taken to an emergency foster home initially, but are placed with a
suitable relative whenever possible.
When a child comes into custody, the case is transferred to Dependency
Investigations, and a new worker is assigned to continue the investigation and
file reports with the court.
At the
conclusion of the investigation, a disposition is assigned to the report.
®"Unfounded
report" means a report which is determined by the investigator to be
false, to be inherently improbable, to involve an accidental injury, or not to
constitute child abuse or neglect, as defined in Section 11165.6.
®"Substantiated
report" means a report which is determined by the investigator, based upon
some credible evidence, to constitute child abuse or neglect, as defined in
Section 11165.6.
®"Inconclusive
report" means a report which is determined by the investigator who
conducted the investigation not to be unfounded, but in which the findings are
inconclusive and there is insufficient evidence to determine whether child
abuse or neglect, as defined in Section 11165.6, has occurred.
After the final
disposition, the agency will inform a mandated reporter by mail of the results
of the investigation and any action the agency is taking with regard to the
child or family.
WHAT MUST BE REPORTED
Knowledge or reasonable suspicion of the following MUST be
reported to a child protection agency, no matter where they occur.
Child
Neglect is the negligent
treatment or maltreatment of a child by a person responsible for the child's
welfare under circumstances indicating harm or threatened harm to the child's
health or welfare. The term includes
both acts and omissions on the part of the responsible person.
-
"Severe
neglect" means the negligent failure of a person having the care or
custody of a child to protect the child from severe malnutrition or
medically diagnosed nonorganic failure to thrive. Also those situations
where any person having the care or custody of a child willfully causes or
permits the person or health of the child to be placed in a situation such
that his or her person or health is endangered, including the intentional
failure to provide adequate food, clothing, shelter or medical care.
2. "General neglect" means
the negligent failure of a person having the care or custody of a child to
provide adequate food, clothing, shelter, medical care, or supervision where no
physical injury to the child has occurred.
Child Abuse is a broad
term which includes the following:
physical injury which is inflicted by other than accidental means on a child by
another person; sexual abuse; willful cruelty or unjustifiable punishment of a
child; and unlawful corporal punishment or injury. It also includes neglect of a child or abuse in out of home
care.
There are three types of non-accidental injuries that do not
need to be reported: physical injuries incurred during “mutual affrays between
minors”; those caused by reasonable and necessary use of force by a public
school employee to stop a disturbance threatening injury or property damage,
for self-defense, or to obtain dangerous objects in a pupil’s possession; and
those caused by reasonable and necessary force by peace officer acting in the
scope of his or her employment.
Unlawful
Corporal Punishment or Injury, also called physical abuse, is the willful
infliction of cruel or inhuman corporal punishment or injury resulting in a
traumatic physical condition. Corporal
punishment, or physical discipline, is not in and of itself child abuse, and a
non-injurious spanking to the buttocks is not prohibited by law. However, when parents or caretakers use
corporal punishment with sufficient force to cause internal or external
injuries, this is child abuse. When
parents who are out of control use corporal punishment, or when instruments
(including closed fists, belts, spoons, and cords) are used to hit children,
the chances of causing injury are greatly increased.
Willful Cruelty
or Unjustifiable Punishment of a Childis when any person willfully causes or permits any
child to suffer or inflicts unjustifiable physical pain or mental suffering, or
if the person having the care or custody of any child willfully causes or
permits the child or their health to be placed in an endangering situation.
Any mandated reporter who has knowledge of or who reasonably
suspects that mental suffering has been inflicted upon a child or that his or
her emotional well-being is endangered in any other way may report this. However, these reports are not mandated.
Sexual
Abuse
includes sexual assault or sexual exploitation.
Conduct described as
"sexual assault" can include, but is not limited to, the following:
Any penetration, however slight,
of the vagina or anal opening of one person by the penis of another person,
whether or not there is the emission of semen; any sexual contact between the
genitals or anal opening of one person and the mouth or tongue of another
person, any intrusion by one person into the genitals or anal opening of
another person, including the use of any object for this purpose, except when
performed for a valid medical purpose; the intentional touching of the genitals
or intimate parts (including the breasts, genital area, groin, inner thighs and
buttocks) or the clothing covering them, of a child, for purposes of sexual
arousal or gratification, except acts which may reasonably be construed to be
normal caretaker responsibilities; and the intentional masturbation of the
perpetrator's genitals in the presence of a child.
In addition, as of
January 1, 1998, AB 327 amended the California Child Abuse and Neglect
Reporting Act to add the following to the class of sexual assault crimes that
require mandatory reporting:
~ Unlawful sexual
intercourse (statutory rape) with a child under the age of 16 years when the
perpetrator is over the age of 21 years.
~ Lewd and
lascivious acts with children ages 14 or 15 by a perpetrator who is more than
10 years older than the victim.
The bill’s authors presented the following rationales for
these changes:
1.
Research reveals that many teenage girls are being sexually
exploited and impregnated by adult men. Two thirds of births to teenage girls
nationwide are fathered by men age 20 and older.
2.
In California, men age 20 or older are responsible for five
times more births among juniors high girls than boys in their peer group. Alameda County is one of the counties with
the highest incidence of infants born to minor mothers being fathered by adult
men.
"Sexual exploitation" can
include, but is not limited to, prostitution
of a child and depicting a minor engaged in obscene acts for purposes of
preparing a film, photograph, negative, slide, drawing, painting, or other
pictorial depiction.
A FEW MORE THINGS TO KEEP IN MIND…
1.
The term child
refers to any person under the age of 18.
2.
Privileged communication (physician-patient,
therapist-client) DOES NOT APPLY. The
statutory duty to report supersedes confidentiality when there is reasonable
suspicion of child abuse or neglect. There is no civil or criminal liability
for reporting if you are a mandated reporter. If you are a non-mandated
reporter, there is no liability unless it is proven that the report was false.
3.
Failure to report by telephone or as soon as practically
possible and in writing within 36 hours is a misdemeanor punishable by
confinement in a county jail for a term not to exceed six months, by a fine of
not more than $1000.00, or by both. There is also the possibility of civil
liability for failure to report.
4.
Representatives
of child protection agencies may interview suspected victims of child abuse on
school premises. The child may be interviewed in private or select an adult to
lend support. However, the member of the staff so elected shall not participate
in the interview or discuss the facts or circumstances of the case with the
child and is subject to the confidentiality requirements of CANRA.
5.
Skeletal x-rays for diagnosis and photographs of injuries
may be taken without parental permission.
6.
If two or more mandated reporters jointly become aware of
a known or suspected instance of child abuse, they may, by mutual agreement,
designate one of themselves to make the required telephone and written
reports. However if a mandated reporter
becomes aware that the designated individual failed to report, he or she must
then report.
7.
Pregnancy of a minor is not considered in and of itself to
constitute the basis of a reasonable suspicion of sexual abuse.
8.
Maternal substance abuse and positive toxicology screening
at the time an infant is delivered is not in and of itself a sufficient basis
for reporting child abuse or neglect.
However, any indication of maternal substance abuse should lead to an
assessment by the health care provider of other factors present that indicate a
risk to the child.
9.
A child receiving treatment by spiritual means as provided
in section 16509.1 of the Welfare and Institutions Code or not receiving
specified medical treatment for religious reasons, shall not for the reason
alone be considered a neglected child. An informed and appropriate medical
decision made by parent or guardian after consultation with a physician or
physicians who have examined the minor does not constitute neglect.
Child Abuse
Reporting:
Frequently Asked Questions
Adapted from "The California Child Abuse and Neglect
Reporting Law: Issues and Answers for Mandated Reporters" Pub 132 (1/00)
California Department of Social Services, Office of Child Abuse Prevention, p.
17-20.
- Who
am I to say what is abusive?
Professionals often feel reluctant to label behavior as abusive. They may
feel they have no right to pass judgment on other people. However, if a
reasonable suspicion exists, the protection of the child and compliance
with the law must take precedence over these concerns. This protective
action is beneficial to the parents as well, who may not recognize their
behavior as abusive, or may be reluctant to seek help.
-
What is the fine line between abuse
and discipline?
If the discipline is excessive or forceful enough to leave injuries,
physical abuse has occurred. The
use of instruments increases the likelihood of injuries, as does the
excessive punishment of young children. The intent of the reporting law is
not to interfere with appropriate parental discipline, but to respond to
extreme or inappropriate discipline which is abusive. Some parents hit their children in
places where injuries are not visible (the buttocks, the thighs, the back)
and yet may tell the mandated reporter
that they use belts, whips or other potentially dangerous
instruments. If a mandated
reporter has reasonable suspicion of abuse, even with no visible signs,
you are required to report. Under
California Welfare and Institutions Code Section 300(a), reasonable and
age appropriate spanking to the buttocks where there is no evidence of
serious physical injury does not constitute abuse.
- What
if abuse occurred in the past?
There is no time limitation regarding the reporting of child abuse. If a victim is still under age 18, the
abuse must be reported.
- What
if an adult states he or she was abused as a child?
The child abuse reporting law mandates a report when there is a reasonable
suspicion or knowledge that minors may be in need of protection. Therefore, childhood abuse of adults
should be reported if there is a reasonable suspicion that there may be
another child victim.
- At
what age is a child most at risk of abuse?
All children are at risk of abuse, but infants and toddlers are most
likely to sustain serious injuries due to their fragility. The mortality
rate is highest for children 0-2.
Some people are predisposed to incorrect ideas about abuse,
depending on the age of the child.
For example, sexual abuse of infants is more difficult to fathom
than sexual abuse of an older child, yet it does occur. Adolescents are also at risk of abuse
but may not receive needed help because they may be thought to provoke the
abuse or to be better able to protect themselves or run away from abusive
situations. Despite their age and
size, adolescents are often just as vulnerable as younger children to
physical, sexual and emotional abuse and neglect.
- At
what age can children legally be left alone?
There is no law which states the age when children can be left alone, nor
is there any law which specifies a minimum age for a caretaker. Good judgment on the part of the
parents is expected. The ages, number of children, their maturity, the length of time in question,
cultural factors and other characteristics would be considered.
- Are
clergy mandated to report?
Yes. Clergy are legally mandated reporters, and are exempt only if the
knowledge or reasonable suspicion of child abuse was obtained during a
"penitential communication," e.g. sacramental confession.
Is a mandated reporter
"on duty" 24 hours a day and required to make reports on family,
neighbors or friends?
In California the mandated reporting law specifically states that
reporting is required when the reporter has knowledge of or observes child
abuse in his or her professional capacity or within the scope of his or
her employment. A report is not required when information is obtained
through a personal relationship. However, professionals with any knowledge
of child abuse or neglect should examine their moral and ethical responsibilities
to their community and its children when making such a decision.
9.May reports be made anonymously?
Mandated reporters must identify themselves when making child abuse
reports. Persons not legally required
to report may make anonymous reports.
10.Should I inform the family that I have made a child abuse report?
There is no law or regulation regarding this, and good
professional judgment should be used. If a child is in imminent danger and the
perpetrator has access to the child, it is better not to advise anyone in the
family so that the child is not coerced or instructed to retract the
disclosure.
Alameda County Child Abuse Prevention
Council
CHILD
ABUSE
REPORTING
GUIDELINES FOR SEXUAL ACTIVITY
BETWEEN
AND WITH MINORS
This is a guide for mandated reporters and the information
contained in this document is designed to assist those mandated by California
Child Abuse Reporting Laws to determine their reporting responsibilities. It is
not intended to be and should not be considered legal advice. In the event
there are questions regarding reporting responsibilities in a specific case,
the advice of legal counsel should be sought. This guide incorporates changes
in the Child Abuse Reporting Law, effective January, 1998. For more detailed
information refer to Penal code Section 11164 & 11165.1 et.al.
I.
INVOLUNTARY
SEXUAL ACITIVITY is always reportable.
II.
INCEST, even
if voluntary is always reportable. Incest is a marriage or act of intercourse
between parents and children; ancestors and descendants of every degree;
brothers and sisters of half and whole blood and uncles and nieces or aunts and
nephews. (Family code, 2000.)
III.
VOLUNTARY
SEXUAL ACTIVITY may or may not be reportable. Even if the behavior
is voluntary, there are circumstances where the behavior is abusive, either by
Penal code definition or because of an exploitive relationship and this
behavior must be reported. Review either section A, B or C and section D. In
addition, if there is reasonable suspicion of sexual abuse prior to the consensual
activity, the abuse must be reported.
|
“Child” refers to the person that the mandated child abuse
reporter is involved with.
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Definitions and
Comments
|
Mandatory Report
|
Not Mandatory
Report
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A. Child younger than 14
years old
|
|
1.Partner is younger than 14 years old, but there is
disparity in chronological or maturational age or indication
|
See, Planned
Parenthood Affiliates of California v. John K. Van De Kamp
(1986) 181 Cal. App. 3d 245 (1986)
|
|
X
|
|
2.Partner is younger than 14 years old, but there is
disparity in chronological or maturational age or indications of
intimidation, coercion or bribery or other indications of exploitive
relationship.
|
|
X
|
|
|
3. Partner is 14 years or older.
|
|
X
|
|
|
4. The perpetrator has the intent of “Arousing, appealing
to or gratifying the lust, passions, or sexual desires of the perpetrator or
the child.”
|
|
|
|
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5. Partner is alleged spouse and over 14 years of age.
|
The appropriate authority will determine the legality of
the marriage.
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X
|
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B. Child 14 or 15 years old
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1.Partner
is less than 14
|
|
X
|
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2. Unlawful Sexual Intercourse with a
partner older than 14 and less than 21 years of age & there is no
indication of abuse or evidence of an exploitive relationship.
|
|
|
X
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3.
Unlawful Sexual Intercourse with a partner older than 21 years of age.
|
|
X
|
|
4. Lewd
& Lascivious
|
The
perpetrator has the intent of “Arousing, appealing to or gratifying the lust,
passions, or gratifying the lust, passions, or sexual desires of the
perpetrator or the child.”
|
X
|
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5. Partner
is alleged spouse and over 21 years of age.
|
The
appropriate authority will determine the legality of the marriage.
|
X
|
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C. Child 16 or 17 years old
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1. Partner is less than 14
|
|
X
|
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2. Unlawful Sexual Intercourse with a
partner older than 14 & there is no indication of an exploitive
relationship.
|
|
|
X
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3. Unlawful Sexual Intercourse with a
partner older than 14 & there is evidence of an exploitive relationship.
|
|
X
|
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4. Partner is alleged spouse and there
is evidence of an exploitive relationship.
|
The
appropriate authority will determine the legality of the marriage.
|
X
|
|
D. Child under the age of 18
|
1. Sodomy, oral copulation, penetration
of a genital or anal opening by a foreign object, even if consensual, with a
partner of any age.
|
|
X
|
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Mandated reports of sexual activity must be reported to
either The Department of Family & Children’s Services (DFCS) or to the
appropriate police jurisdiction. This information will then be cross-reported
to the together agency. Reporting does not necessarily mean that a civil or
criminal proceeding will be initiated against the suspected abuser.
Failure to report known or reasonable suspicion of child
abuse, including sexual abuse, is a misdemeanor. Mandated reporters are
provided immunity from civil or criminal liability as a result of making a mandated
report of child abuse.
Alameda County Child Abuse Prevention Council
Adapted from Orange County
Reporting Guidelines
