Child Abuse and Neglect 2013 ed forum

Reporting Child Abuse and Neglect Kelley Baker Steve Williams Harding & Shultz (402) 434-3000 kbaker@hslegalfirm.com swilliams@hslegalfirm.com H & S School Law @SteveisEsteban

The Penn State Scandal

The Penn State Scandal • In Nebraska, every adult IS a mandatory reporter.

Child Abuse

What is Child Abuse? 28-710 Knowingly, intentionally, or negligently causing a child to be: (a) Placed in a situation that endangers his or her life or physical or mental health; (b) Cruelly confined or cruelly punished; (c) Deprived of necessary food, clothing, shelter, or care; (d) Left unattended in a motor vehicle if such minor child is six years of age or younger (e) Placed in a situation to be sexually exploited by allowing, encouraging, or forcing such minor child to solicit for or engage in prostitution, debauchery, public indecency, or obscene or pornographic photography, films, or depictions; or (f) Placed in a situation to be sexually abused.

Educate Yourself About Signs of Abuse  Many good sources  “The Role of Educators in Preventing and Responding to Child Abuse and Neglect” from U.S. Dept. of HHS  http://www.childwelfare.gov/pubs/userm anuals/educator/educator.pdf at https://www.childwelfare.gov/

Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number

Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number

Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number

Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number

Standard for police arrest without a warrant Has knowledge, based on information which is reasonably trustworthy under the circumstances, which justifies the person’s prudent belief that abuse and neglect has or is likely to occur

Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number

Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number

Neb. Rev. Stat. 79-293 (1) The principal of a school or the principal's designee shall notify as soon as possible the appropriate law enforcement authorities . . . of any act of the student described in section 79267 which the principal or designee knows or suspects is a violation of the Nebraska Criminal Code.

Keep in Mind:  Only 1/3 of abuse gets reported  Reasonable ≠ true  Adult abusers groom adults as well as kids  If in doubt, report!

Cases Prosecuting Educators

Commonwealth v. Allen (Ky. 1998)

 Teachers suspected fellow teacher  Told principal, who did not report  Teacher abused third student, assistant principal reported  Teacher charged with failure to report  Kentucky Supreme Court affirmed conviction

Commonwealth v. Allen (Ky. 1998)

 What about multiple reports?

“In this world where imperfections abound, it is not illogical or inefficient for the legislature to require every individual entrusted to the care and supervision of children to be required to report crimes against those children”

Pesce v. J. Sterling Morton High Sch. (7th Cir. 1987)

 School Psych contacted by student  Referred to private therapist  Decided to maintain student’s confidentiality until student agreed to allow report  Superintendent suspended for 5 days and demoted

Pesce v. J. Sterling Morton High Sch. (7th Cir. 1987)

 Psych sued claiming violations of 1st, 4th, and 14th Amendments  Illinois statute: Any . . . school personnel . having reasonable cause to believe a child known to them in their professional or official capacity may be an abused or a neglected child shall immediately report or cause a report to be made to the Department [of Children and Family Services].

Melleady v. Blake (Dist. N.J. 2011)

 Parents sued after kids removed from their home; Defendants claimed immunity  Ct: reporters do not have absolute immunity  Ct: Test is whether a reasonable person would have reasonable cause to believe that a child has been abused

Child Abuse and Special Education  Carlin v. Brentwood Union School District (2013 CA) - settlement  Smith v. Harrington, 113 LRP 1821 (N.D. Cal. 1/9/13) – 504 retaliation  Doe v. Darien Bd. Of Ed., 59 IDELR 257 (D. Conn. 2012) – policies and procedures

Immunity From Liability – 28-716 Any person participating in an investigation or the making of a report of child abuse or neglect required by law or participating in a judicial proceeding resulting therefrom shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed, except for maliciously false statements. •

Criminal Penalties In addition to any ethical and social obligations and penalties, the failure to report child abuse or neglect as required by law subjects you to up to 3 months in jail, a $500 fine, or both.

Report from HHS The person in charge of a school making a legally mandated report of child abuse or neglect shall receive a summary of the findings of and actions taken by the department in response to the report upon request. The amount of detail such summary contains shall depend on the source of the report of child abuse or neglect and shall be established by regulations of the department.

Our Recommendations  Reporting peer abuse • If sex assault involved: report • If physical assault on campus: investigate; document; use discretion • If physical assault off campus: document; use discretion  Call before you conduct your investigation  Failure to report not in rule 27

Reporting Child Abuse and Neglect Kelley Baker Steve Williams Harding & Shultz (402) 434-3000 kbaker@hslegalfirm.com swilliams@hslegalfirm.com H & S School Law @SteveisEsteban