… Some forms of child abuse may not be readily recognizable to practitioners. That is why a thorough knowledge of child abuse reporting requirements, which vary from state to state, is necessary in order to avoid being faced with the charge of failure to report – which could result in a criminal case against the therapist or counselor, or perhaps a licensing board action to revoke or suspend one’s license. Some examples of situations possibly requiring a report, which may not at first glance seem like child abuse, follow.  

Suppose that your client tells you that he was in an automobile accident and that a child in the other car was injured. In a later session, your client tells you that he was intoxicated (from alcohol or perhaps cocaine) at the time of the accident and that he veered into the other lane on the highway, which caused the accident. In some states, a report is required because the Legislature has passed a law that specifically covers such a situation and categorizes it as child abuse. In other states, it may be reportable if such action fits the definition of, for example, child endangerment or unjustifiable corporal punishment of a child. At first blush, this may not seem like child abuse. It may seem like an accident caused by a negligent driver – not by a child abuser. What is the law in your state?

Suppose that a patient reports that her husband struck her with his fist in the presence of their 10-year old child. Does this constitute child abuse? Is it reportable (mandatory or permissive) as emotional abuse of the minor or child endangerment? Does domestic violence not committed in the presence of a minor (although the minor is present in the residence) constitute reportable child abuse (e.g., child endangerment) if a weapon is used and the perpetrator is drunk? Or, suppose that the parents of a 12-year old child engage in drug dealing out of their house and that unsavory people are coming to the house on a regular basis. Does this constitute child abuse in the form of child endangerment or perhaps neglect?

… A parent smokes marijuana (one time) in front of her 17-year old daughter and tells her therapist about this. Is a child abuse report required? Is a child abuse report permitted?

… A parent snorts a line of cocaine (one time) in front of her 17-year old daughter and tells her therapist about this. Is a child abuse report required? Is a child abuse report permitted?

… What if the child in the questions above is an 11-year old daughter? Do any of your answers change. 

I invited e-mail comments and requested that they be sent to CPH and Associates’ website for forwarding to me. I stated that I would report on the nature and extent of the responses and viewpoints expressed. This is done below. Additionally, I offer my viewpoint on these scenarios and the questions asked regarding child abuse reporting.

Each state has its own law on the reporting of child abuse, and while these laws have many similarities, there are differences – and the differences matter. They matter because reporting or failing to report has significant consequences, both for the patient and for the therapist or counselor. The following discussion of the questions and answers should be viewed as educational material (and something to consider) rather than advice on any particular reporting issue – since state laws vary, sometimes in fine nuance affecting reporting questions and decisions. 

It is possible that some state(s) may have enacted, or may soon enact, a specific statute that directly addresses one or more of the situations described above. An attempt to do that recently occurred in California, but the bill did not become law. It would have seemingly made cocaine use in front of a child reportable as child abuse, but not reportable if marijuana was used. Thus, it would be important to ascertain whether your state law contains a specific provision that directly addresses drug use in front of a child as reportable child abuse or an otherwise reportable event.

When a difficult reporting question arises, it is usually quite useful to call child protective services (or another agency that receives reports) and ask them what they think about the need to report in a particular circumstance. In fact, one of the email respondents to these hypothetical questions mentioned this important advice. It is also important for practitioners to document their records as to the call and the advice or opinion given. If the person at child protective services says that the situation is reportable, it would be wise to ask that person to specify the section of the reporting law that he or she is relying on to conclude that a report is required. The same approach can be taken with advice not to report. In other words, it is a good idea, in my view, to press for a rationale and to document it in the records. 

Using drugs in front of a child would not typically fall under the categories of either physical abuse or sexual abuse. Most, if not all, states have some kind of a child endangerment statute. In one state, for example, the statute describes a situation in which any person willfully causes or permits any child to suffer, or inflicts thereon, unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of the child to be placed in a situation in which his or her person or health is endangered. In my view, the one time use of marijuana or cocaine in front of the daughter, regardless of the age of the daughter, does not endanger the daughter’s health or person. The fact of the one time use and the disclosure of that fact in therapy help to persuade me that the mother’s acts were not willful (perhaps they were negligent or thoughtless) and that she is not a child abuser.

Some states may have laws that permit, but do not require, a child abuse report for what may be called or referred to as “emotional abuse.” One state’s definition of this term previously included situations where the health practitioner reasonably suspected that mental suffering had been inflicted upon the child or that his or her emotional well-being was endangered in any other way. Even under that broad provision, it would be my view that a report should not be made. Since reporting is not mandated, I would opt for confidentiality and continued treatment. 

It is also arguable that a report is not permitted, and if one were to make a report, it could be argued that the report constituted a breach of confidentiality. The one time use of a drug in front of a child would not, in my view, result in an endangerment to the child’s emotional well-being, especially if the mother is apparently dealing with her behavior in therapy. Interestingly, the broad definition of “emotional abuse” in that state has since been amended. The law now requires that the health practitioner have a reasonable suspicion that the child is suffering serious emotional damage or is at a substantial risk of suffering serious emotional damage. Even in such circumstance, a report is permitted or authorized – but not required - in that particular state.

Typically included in the definition of child abuse is neglect, which generally requires that a child abuse report be made. Neglect is sometimes subdivided into “severe neglect” and “general neglect.” Without exploring the definition of “severe neglect,” it is safe to say that the situations described above are not likely to fall within the definition of “severe neglect.” “General neglect” may be defined as the negligent failure of a person having the care or custody of a child to provide adequate food, clothing, shelter, medical care or supervision. It also might typically require, in order for a report to be mandated, the existence of a situation indicating harm or threatened harm to the child’s health or welfare. Once again, the one time use of the drug and the disclosure to the therapist would argue, in my view, against reporting. In my view, there was no failure to provide adequate supervision and there was no threat of harm to the child’s health or welfare. Inadequate supervision might typically be evidenced by repeated falls down stairs, repeated ingestion of harmful substances, the child being left alone in the home, or the child being cared for by another child rather than the parent.  

Thus, it is my view that the answer to all of the above questions posed is “no.” Even if one were to argue that one or more of the situations described were permissible to report, the facts of the case, in my view, call for the therapist to respect the patient’s expectation of confidentiality. The real danger for therapists and counselors occurs when they fail to make a report that is later determined to have been required. Those who fail to make permissible reports, however, should be protected were there to be future, unanticipated harm to the child. And finally, let me remind the readers that each state law and state practice may treat this subject matter differently. Our discussion of this subject matter is not intended as legal advice, but rather to alert you to the issue so that you can pursue the matter further should you need or desire to do so.

… Child abuse reporting laws in the various states are similar in many respects, although there are differences. Much of the focus of practitioners usually involves questions regarding whether something is required to be reported, or whether a report is permissible rather than mandated. I was recently made aware of another issue related to child abuse reporting that should be important to practitioners who are mandated reporters of child abuse and neglect. That issue is – what is the extent of the protection a mandated reporter has with respect to the confidentiality of his or her identity? Will the perpetrator be able to find out who made the report? Could the mandated reporter be endangered if confidentiality is not strictly adhered to? If the patient or client’s confidentiality is breached in some way, and the identity of the mandated reporter is thereby revealed, what is the remedy for the mandated reporter?

Typically, a mandated reporter must include his or her name in the child abuse report. In most states, if not all, there are protections written into the law for the mandated reporter – one of which is that the identity of the mandated reporter shall be treated as confidential by those agencies that receive mandated reports. Further, state laws may specify how that confidential information may be shared with other agencies involved with the investigation or the later prosecution of the case. I have heard sporadic complaints over the years that the identity of the reporter was inappropriately shared, perhaps by a child protective services worker, with the alleged abuser or others. Sometimes this is hard to prove, but at other times, proof may not be difficult.

… Does a therapist or counselor generally have a duty to investigate in situations involving possible child abuse so as to determine whether a child abuse report must be made? Is there a duty on the part of a mandated reporter to seek information from the patient or others in order to identify or locate an alleged child abuser so that a possible child abuse report can be complete? The general answer to these questions appears to be “no,” but one must be careful to make sure that state law or a particular situation does not require otherwise.

Therapists and counselors are not generally viewed as having an investigative function, and their respective licensing laws generally do not require duties of an investigative nature. They treat patients for mental and emotional problems and are health care practitioners who are duty-bound to protect the patient’s privacy and to treat information about the patient as confidential. Therapists and counselors of course obtain information from the patient and others in the course of providing professional services, but that information gathering is for the purpose of treatment and a natural part of the therapeutic process – not for separate investigative purposes.

Child abuse reporting laws provide an exception to confidentiality, and usually require a report when the practitioner knows or reasonably suspects (or a similar standard) that child abuse has occurred. One must look carefully at the state child abuse reporting law to see whether or not there is any duty to investigate under specified circumstances.

As to the first question asked above, one of the times this question may arise is when a minor engages in consensual sexual intercourse or other sexual activity with another person. For instance, if a sixteen year-old girl tells her therapist that she engages in consensual sexual activity with her boyfriend, a therapist may be required to make a child abuse report based upon the age of the boyfriend, or in some cases, based solely upon the nature of the consensual sexual activity.

In one state, for example, no statute or case obligates the licensed practitioner to inquire of their minor patients as to the age of their sexual partners or to the particular kind of sexual activity being engaged in. Of course, that information may come out in the ordinary course of therapy or the patient may deliberately not want to reveal the partner’s age or the nature of the sexual activity. Each case is different. In such circumstances, that particular state essentially leaves it to the judgment of the practitioner as to whether or not to inquire as to the age of the partner or to the kind of sexual activity involved. 

As to the second question asked above, a common example where this question may arise is in the circumstance where an adult patient tells his or her therapist or counselor of abuse that occurred when the patient was a minor. Perhaps the most compelling situation would be when the alleged abuser was a teacher at a school where the adult patient attended some years earlier. Would the therapist or counselor be under an obligation (or “duty to investigate”) to check with the school or to inquire of the patient as to the present whereabouts of the alleged abuser? As an aside, even if that were done and it was discovered that the teacher is still employed at the same school, a report may not be required.

While many states do not generally require a report when an adult patient reports abuse that occurred when the patient was a minor, there can be exceptions, such as in a circumstance where an 18 year old talks with the therapist about sex with her father when she was a minor and also tells the therapist that she has a 16 year old sister that now lives with the father. It may well be that because of the nature and extent of the former abuse of the patient, the therapist may develop a reasonable suspicion that abuse is currently taking place with the sister of the patient.

But as to the question about a “duty to investigate” the present whereabouts of the teacher, the therapist or counselor would ordinarily not have such a duty (unless state law imposed a duty). Of course, if the present whereabouts of the teacher is important to the patient and is connected to her treatment, this information may come to the therapist during the course of inquiry naturally attendant to the performance of therapy. The therapist would not ordinarily be expected to call the school to inquire, or to press the patient for more information about the teacher’s current location.

These questions can be tricky, and the answers will necessarily depend upon state statutes and other sources of legal authority. There have been several attempts in California to impose some sort of a duty to investigate under specified circumstances – but none of those attempts have thus far been successful. How does the law treat this issue in your state?

… What if a therapist or counselor learns during the course of providing services that a child is not receiving medical treatment for religious reasons or that the parents have arranged for treatment of a child solely by spiritual means through prayer? Is the therapist or counselor required to report this information to the appropriate governmental agency because it constitutes child abuse/neglect? The answer to this question necessarily depends upon state law and upon the facts and circumstances of each particular situation.

The definition of “neglect” will vary from state to state, sometimes in fine nuance, but generally, it can be defined (as it is in one state) as 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. It involves both acts and omissions on the part of the responsible person. This same state also defines “severe neglect” and “general neglect,” (see below) both of which must be reported by mandated reporters.

 “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 non-organic failure to thrive. It also means, among other things, those situations of neglect 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, shelter, clothing, or medical care. “General neglect” means the negligent failure of a person having the care or custody of a child to provide adequate food, shelter, clothing, medical care, or supervision where no physical injury to the child has occurred.

In this particular state, the child abuse reporting law contains a provision, under the section dealing with neglect, which specifically addresses the questions asked above. The section states that a child receiving treatment by spiritual means or not receiving specified medical treatment for religious reasons, shall not for that reason alone be considered a neglected child. The law further specifies that it does not constitute neglect if the treatment of a child solely through spiritual means by prayer is rendered in good faith by a duly accredited practitioner of a recognized church or religious denomination and if such treatment is rendered in accordance with the tenets and practices of such church or religious denomination. The statute also says that an informed and appropriate medical decision made by a parent or guardian after consultation with a physician or physicians who have examined the minor does not constitute neglect.

How does the child abuse and neglect reporting law in your state define “neglect” and how does the law treat the issues of treatment of a child by spiritual means or a child not receiving medical treatment for religious reasons? Is a report mandated or permitted under such circumstances?

… One problem that has arisen for mandated reporters of child abuse is the occasional refusal or failure (due to unavailability) of the local child protective services agency (or the police or sheriff) to take a telephone report of child abuse from the mandated reporter. This problem would typically occur in a state that requires both a telephone report and a written report. California is such a state, and practitioners there have been met with the problem of refusals or unavailability when they call to report the suspected abuse.

There are many situations that can arise where there can be some ambiguity as to whether a report should or must be made. Therapists and counselors want to protect themselves in these situations so that they can demonstrate that they did what the law required – reported by telephone and in writing. When the child protective services representative says that a report is not warranted and that he or she will not take the telephone report, or advises that a written report should not be made, the mandated reported is often confused as to what should be done. More common than the above scenario is the situation where the reporting practitioner is unable to complete the call because the line is busy, because the practitioner is kept on hold for an inordinate period of time, or because the phone is answered with a recorded message.

Several years ago, the California Association of Marriage and Family Therapists (CAMFT) successfully sponsored a bill that addressed the problem. The child abuse reporting law now provides that if a mandated reporter is unable to submit an initial report by telephone (after making reasonable efforts), he or she must immediately or as soon as practically possible, by fax or electronic transmission, make a one-time automated written report, and must also be available to respond to a telephone followup call from the agency with which he or she filed the report. Under these circumstances, a written followup report would not be required. Are you aware of a similar problem in your state? If practitioners are required to report, it ought to be easy to do so!

I have written extensively about child abuse and child abuse reporting requirements in prior issues of this Bulletin. Those articles can be found in the Archives (Legal Resources) on this website under the category “Child Abuse.” One area that I have not written about is the misunderstanding amongst some mandated reporters regarding the issue of an applicable “statute of limitations.” Suppose that a nineteen year-old patient tells a therapist that she was molested by an uncle ten years earlier. Or, suppose that a seventeen year old patient tells his therapist that he was molested by his uncle seven years earlier. What are the reporting requirements and what role, if any, does a statute of limitations play with respect to reporting in each of these examples? As I have written here many times before, state laws vary, sometimes in fine nuance, so my remarks below are based upon California law.

In the first scenario, there is no duty to report child abuse because the nineteen year old is not a child, but rather, an adult. Generally, there is no duty in California to report child abuse when an adult patient tells the therapist of abuse that occurred when the patient was a child. There is an exception to this general rule, but that is a topic for another article. If a thirty year old patient reveals that she was raped when she was fifteen, there is no duty to report. The patient, whether thirty or nineteen years of age, may choose to report the prior abuse if he or she desires. There may be an applicable statute of limitations that will prevent the perpetrator from being criminally prosecuted. The determination as to the existence of a statute of limitations affecting the prosecution, and the precise calculation, usually depends upon the advice of law enforcement (e.g., the police and/or the District Attorney) or a private attorney. Statutes of limitations are sometimes tolled (the clock does not tick) during certain periods of time or under certain circumstances.

In the second scenario, the therapist must report child abuse. A child (the seventeen year old) was abused (I of course assume that the child’s report to the therapist is credible and that reasonable suspicion exists). There is no statute of limitations applicable to the reporting of child abuse by a therapist. In other words, even if the crime is old, and even if the criminal prosecution of the perpetrator were barred by an applicable statute of limitations, the child abuse reporting law contains no statute of limitations with respect to the duty of the mandated reporter to report suspected or known child abuse – provided that the information conveyed to the practitioner is about a child, and not an adult who was abused as a child. As to the statute of limitations that may apply to the criminal prosecution, that determination is typically made by the prosecuting authorities.

Are the laws in your state similar to what I have described here? You never should fail to make a child abuse report that is required by law. Similarly, you should not make a report when no report is specifically required or authorized. To do so will likely constitute a violation of law for breach of confidentiality that can result in disciplinary action by the state and monetary liability in a civil lawsuit.

… Most child abuse reporting laws provide immunity from liability for those mandated reporters who make a child abuse report that is either authorized (permitted) or required by the reporting law. The immunity granted under such a law is typically quite broad – in fact, it may be absolute. For example, if a psychotherapist in California is negligent in making such a report (as was the case where a therapist used an anatomically correct doll in a suggestive manner, thereby unduly influencing the child to acknowledge abuse that did not occur), he or she is nevertheless immune from liability. Even in cases of gross negligence, a court would likely hold that the immunity applied. However, such immunity would likely not extend to enforcement actions by licensing or regulatory boards based upon claims of gross negligence or incompetence, but immunity from liability would typically extend to civil suits and criminal prosecutions. What is the extent of the immunity granted to mandated reporters of child abuse in your state? Is there an “acting in good faith standard” that must be met in order to be entitled to the immunity?

… Are you required to report child abuse if your patient tells you of the abuse and that it has already been reported? The answer to this question necessarily depends upon state law, but my suspicion is that under most state laws, the answer may be “yes.” Using California as an example, there is nothing in the Child Abuse and Neglect Reporting Act that says that a report does not need to be made if it has already been reported. I have advised many therapists about this issue, and the easy solution is usually to report the abuse and to inform the agency receiving the report that you believe that this may already have been reported.

It is not uncommon, based upon my experience, for the therapist to find out that the patient’s statement to the effect that the child abuse has already been reported is untrue or inaccurate. In such cases, the therapist who does not make a report at the time he or she has knowledge or reasonable suspicion (or under the particular standard in state law) that child abuse has occurred, is vulnerable to being charged with a failure to report child abuse, with all of the attendant negative consequences. What is the law in your state? Does the child abuse reporting law specify that if the mandated reporter reasonably believes that the abuse has already been reported, it does not have to be reported again? What harm or penalty would there be, if any, for making a possibly duplicate report?

Once the report of child abuse is made, does the law in your state allow you, without the patient’s authorization, to speak with the child abuse investigator who investigates the report? In California, for example, the law allows the practitioner to provide information to the investigator – but it does not require the sharing of information. Typically, if the therapist is making a report that implicates the patient as the alleged or suspected child abuser, the therapist would not talk with the investigator without a signed authorization from the patient. However, if the therapist in California were treating the abused child, the therapist may choose to cooperate with the investigator and share any other information that is relevant to the incident of child abuse or neglect. In the latter situation, no patient authorization is required, nor is parental authorization required, for such sharing of information by the reporting therapist. How does the law in your state treat this subject?