navigating the system as a mandated reporter
TRANSCRIPT
Candice A. Lively, J.D. U.S.C. School of Law Children’s Law Center (803)777-‐1979 [email protected]
OBJECTIVES
• UNDERSTAND THE LAW IN S.C. FOR MANDATED REPORTERS
• KNOW HOW AND WHEN TO REPORT ABUSE AND NEGLECT
• KNOW YOUR ROLE IN THE CASE AFTER A REPORT IS MADE
WHY DON’T PEOPLE REPORT?
Failure to recognize warning signs
Resistance to becoming involved
Concern for professional obliga\ons (example, confiden\ality, HIPAA)
Lack of training and confusion about repor\ng responsibili\es
STATISTICS FOR 2012 • Over 3.4 million referrals were made to CPS regarding abuse/neglect
• Two-‐thirds (58.7%) reports of alleged child abuse and neglect were made by professionals.
• VicRms in their first year of life have the highest rate of vicRmizaRon
• Total deaths reported from abuse/neglect of children was 1,640
U.S. Department of Health and Human Services, 2012 Report
THE MANDATED REPORTER STATUTE
Encourages anyone to report
Requires designated professionals to report
Located in the Children’s Code
S.C. CODE ANN. § 63-‐7-‐310
• in the reporter’s professional capacity
• the reporter has received informaRon
• which gives the reporter reason to believe
• that a child has been or may be abused or neglected
Must report when
ReporRng Requirement
Mandated Reporters in SC • Doctors • Nurses • DenRsts • Optometrists • EMT’s • Mental Health • Allied Health • Counselors • Principals • Assistant Principals • Judges • Film Processors • Social Workers/Public
Assistance Workers • Coroner (and staff) • Medical Examiner (and
staff)
• Substance Abuse Treatment Staff
• Childcare Workers • Police/Law Enforcement • Undertakers • Funeral Directors (and staff) • Computer Technicians • Clergy* (privilege excepRon) • Teachers • Juvenile JusRce Workers (2010) • Foster Parents (2010) • Guardian ad Litems (2010) • School Truancy/Afendance
Officers (2010)
• Compare
– Teacher sees a child with physical injuries consistent with abuse when the child shows up to school in the morning
with…
– Teacher observes parent punching a child in the face at a local grocery store
What is Professional Capacity?
“reason to believe” does not require the reporter to have conclusive proof
does not require proof beyond a reasonable doubt
informaRon must be such that a reasonable person would rely upon it and informaRon may include hearsay
What is a Reason to Believe?
Ø Supersedes confidenRality requirements Ø Voids privileged communicaRon between
professional and paRent/client (HIPAA) Ø Voids privilege between husband/wife Ø Not precluded by federal statute on protected
health informaRon Ø Clergy/penitent excepRon
DUTY TO REPORT AND CONFIDENTIALITY
• VAWA (Violence Against Women Act)allows program to disclose informaRon when mandated by statute or court
• InformaRon you are mandated to report can be disclosed without violaRng VAWA or FVPSA (Family Violence PrevenRon and Services Act)
Federal Laws
HIPAA and Child Abuse
• All states have laws that mandate reporRng of suspected child abuse or neglect, and HIPAA rules allow disclosure of protected health informaRon without legal guardian authorizaRon under these circumstances. In general, if a pediatrician suspects abuse or neglect, as defined within state statutes, then he or she is obligated to disclose informaRon to the appropriate invesRgaRve agencies, which in most states includes CPS and law enforcement agencies.
American Academy of Pediatrics, Pediatrics Volume 125, No. 1, January 2010
S.C. Code of Laws Ann. §63-‐7-‐380
• A MANDATED REPORTER may take photos of the areas of trauma visible on a child who is the subject of a report and, if medically indicated, a physician may cause to be performed a radiological examina\on or other medical examina\ons or tests of the child …
• “ WITHOUT THE CONSENT OF THE CHILD’S PARENTS OR GUARDIANS”
• Good faith is presumed • Immunity extends to parRcipaRon in invesRgaRon or court proceedings
• Immunity covers full disclosure of the facts that led the reporter to believe a child was abused or neglected
Mandated reporters
are immune from
liability when ac\ng in good faith
Immunity
FAILURE TO REPORT S.C. Code §63-‐7-‐410
Punishable by a fine up to $500 and/or imprisonment
up to 6 months
Failing to report is a misdemeanor
Knowingly making a false or malicious report is a misdemeanor
Punishable by a fine up to $5000 and/or imprisonment up to 90 days
A false or malicious report is intenRonally decepRve, not an honest mistake
False Reports
ProtecRng the Reporter
At \me of report to DSS, reporter can request summary of outcome of inves\ga\on
Anonymous reports are permissible
Iden\ty of reporter is confiden\al, except between DSS and law enforcement
If required to tes\fy, the fact that witness was reporter cannot be disclosed
County Department of Social Services
Law Enforcement
In the county where the child resides
REPORT TO?
Suspected perpetrator is: – Child’s parent, guardian, foster parent – Operator, employee, or caregiver of a public or private residenRal home, insRtuRon, agency or childcare facility
– Adult who has assumed the role or responsibility of a parent or guardian for the child
Report to DSS when…
Perpetrator is not responsible for child’s welfare
Examples: q Occasional babysiker q Neighbor q Stranger q Leader in youth organiza\on q Coach q Teacher
Report to Law Enforcement when…
• Inves\gates reports of criminal child abuse or neglect
• Determines whether criminal law has been violated
• Law enforcement may take a child into emergency protec\ve custody w/o
court order
Role of Law Enforcement
• Arrests suspected offender
• Gathers corroboraRng evidence § You may be criRcal in that regard
• Arrest may lead to prosecuRon in General Sessions Court
Role of Law Enforcement
A person under the age of 18
A viable fetus -‐ SC Supreme Court has ruled that a viable unborn fetus (24 weeks) is a “child” for the purpose of child abuse and neglect
DefiniRon of a Child
Abuse and Neglect Generally
It is abuse or neglect when a child is injured by the inten\onal acts or omissions of an adult
Abuse and neglect are broadly defined in the Children’s Code and may include criminal conduct (S.C. Code §63-7-20)
• Physical or mental injury • Excessive corporal punishment • Sexual offenses • Failure to supply food, clothing, shelter, educa\on,
• medical care • Abandonment • Encouraging delinquency • Exposure to Domes\c Violence
Examples of Abuse and Neglect
} Failure to supply the child with adequate food, clothing, shelter, or educaRon; supervision appropriate to the child’s age and development; or health care though financially able to do so or offered financial or other reasonable means to do so
AND
} Failure has caused or presents a substan\al risk of causing physical or mental injury
One Type of Neglect
WHAT IS PHYSICAL INJURY?
Children’s Code: physical injury means death or permanent or temporary disfigurement or impairment of any bodily organ or func\on
Criminal statutes also define types of physical injury – Inflic\on of GBI on a Child S.C. Code §16-‐3-‐95 Can include substan\al risk of death
• Yes, unless:
– Administered by a parent or in loco parenRs – For sole purpose of restraining or correcRng the child – Reasonable in manner and moderate in degree – No lasRng or permanent damage – Not reckless or grossly negligent
May Corporal Punishment Be Physical Injury?
Is defined as a sexual offense according to the criminal laws of South Carolina S.C. Code § 16-‐3-‐651 "Sexual bafery" means sexual intercourse, cunnilingus, fellaRo, anal intercourse, or any intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, except when such intrusion is accomplished for medically recognized treatment or diagnosRc purposes.
What is Sexual Abuse?
• Age of consent for sex in SC is
16 • Un\l June 18, 2012, there was no consensual teenage sex excep\on.
CSC W/MINOR 2ND AND 3RD DEGREE the EXCEPTION
THE ROMEO CLAUSE • A person 18 or younger who engages in consensual sexual conduct with a person at least 14 years of age, cannot be convicted under these provisions of the law.
} DocumentaRon: ◦ Document the basis of your concerns, including physical and behavioral signs
◦ Document the child’s statements to you, exact words if possible
◦ Record the child’s demeanor ◦ Record date and agency/individual to whom you reported
Guidelines for Reporters
• Making the Report – As soon as possible
– Do not akempt to inves\gate
– Providing your name is preferred
Guidelines for Reporters
• Follow organizaRonal policies and procedures but remember you are legally required to report and policy cannot change that legal requirement.
Making the Report cont…
Who you are is confiden\al…
• S.C. Code Ann. §63-‐7-‐330 • -‐idenRty of reporter “must not be disclosed” • EXCEPTION: 1) If report made to LE then LE can tell DSS for them
to further invesRgate; 2) If report made to DSS and it involves the need for
LE, then DSS can provide name for LE to further invesRgate.
Provide as much informaRon as possible
Child’s name
Age and date of birth
Address
Present LocaRon
What to Report…
Names and ages of siblings
Parents’ names and addresses
Reasons for concerns
Known history of violence in the home
What to Report cont…
Inform that person that you are a mandatory reporter
Provide informaRon
Ask if the report is being accepted for invesRgaRon
Get the Name of the Person to Whom You Report
Ask if there is any addiRonal
informaRon you may provide in order for it to be
accepted
• Ask that you be noRfied within 24 hours if it is going to be invesRgated
If the response is “I have to staff it with a supervisor”
If Your Call Is Not Being Accepted for Inves\ga\on
• Following the report, you may be served with a • subpoena: – to provide addiRonal informaRon – To tesRfy in court AND/OR – To parRcipate on a mulR-‐disciplinary team involved in the invesRgaRon or follow up
Your Involvement Arer Repor\ng
Court appearances and requirements • Subpoenas: • Must state who issued it, name of case and date and \me of your
required appearance. • May also ask that you bring documents, materials, etc. • Can file a Mo\on to Quash for certain jus\fiable reasons.
• Court Orders: • Must be followed as stated. • Can ask Court for clarifica\on.
• Search Warrants: • Must be followed as stated. • Can later dispute if lacked probable cause
• LAW ENFORCEMENT IS ENTITLED TO EVERYTHING WITHOUT A • SUBPOENA • -‐HIPAA & PRIVILEGE UNDER PATIENT/CLIENT CONFIDENTIALITY • DOES NOT APPLY!!
• DSS IS ENTITLED TO EVERYTHING WITHOUT A SUBPOENA • -‐HIPAA & PRIVILEGE UNDER PATIENT/CLIENT CONFIDENTIALITY • DOES NOT APPLY!!
• SOLICITOR’S OFFICE IS ENTITLED TO EVERYTHING WITHOUT A • SUBPOENA • -‐HIPAA & PRIVILEGE UNDER PATIENT/CLIENT CONFIDENTIALITY • DOES NOT APPLY!!
Release of Records
Case Scenario-‐ Home visitor • Arrives at 830 AM at a home of a 2 week old infant for a newborn home
visit. The infant weighed 5 ½ pounds at birth and was born at 38 weeks. • When doing the assessment the home visitor notes mother’s clothes are
dirty, hair is messy, she does not make any eye contact and is not afenRve to infant crying in the car seat which is placed on the floor of the living room. The room smells of cigarefe smoke.
• When asked she does not recall infant’s last feeding or diaper change and is told they missed the scheduled infant’s visit at the doctors 2 days ago which was for a weight check as the infant has been slow to gain weight. The mother states-‐ “I couldn’t get there, I’m a single mom”.
• A 3 year old male sibling enters the room with soiled clothes, mafed hair and eaRng a bag of potato chips. A bruise and scratch are noted on his right ear as well as yellow bruises on the backs of his legs.
• The mother states “he’s a wild one I can’t keep my eye on him, typical 3 year old”.
• The home visitor sees a bofle of opened pills on the kitchen table amongst garbage and old food.
• The home visitor notes the home to be clufered, children dirty with soiled clothes and the mother to be detached and overwhelmed.
Case Scenario – Home Visitor
• Arrives at the home of a 21 year old mother who lives with her 23 year old boyfriend and their 4 month old infant.
• The mother reported early in her pregnancy using Marijuana for morning sickness but stopped and a|er she stopped so did her boyfriend. It was not reported because she was in her second trimester. She also has a history of anxiety and depression and is taking prescripRon medicaRons for it.
• The home visitor notes the mother to be sleepy, dosing off when si}ng in the chair and while holding the infant. The home visitor has to repeatedly call her name to get her afenRon.
• The mother finished the visit and states she has to drive to the pediatricians for an appointment in a lifle while.
Common reasons medical providers/home visitors fail report-‐
• I’m not sure if it’s reportable • It doesn’t seem that bad • What if I’m wrong • They wont take it • The parents/family will know it’s me • They won’t let me back into their home/ won’t come for services • I don’t want to lose my credibility if it’s not accepted • There’s already a case or someone else reported
Pi~alls
• Provider/home visitor doesn’t document observaRons/criRcal informaRon/statements
• A verbal report is given to another mandated reporter but no report is made
• CriRcal informaRon is lost in verbal reports from one person to the next
• Not having a “check list” of red flags that may trigger a report or “check list” of important info. when making a report
• Lack of educaRon on signs of abuse and neglect, mandated reporRng and various issues related to child maltreatment
CONCLUSION • As a mandated reporter your duty to report abuse is legally required and can save a child.
• Be a part of the process so you can assist the inves\ga\on and improve the results for a child.
• Appreciate your role and cooperate with those agencies who need your input.
Candice A. Lively, J.D. U.S.C. of Law Children’s Law Center
(803)777-‐1979 [email protected] www.childlaw.sc.edu