In the process of doing her monthly visit, a social work case manager notices another child in the foster home. The child is moaning softly and seems listless and groggy. There are no noticeable bruises, no bleeding, no obvious broken bones. The child is not a client of the case manager, nor even of the worker’s agency. When the case manager gets back to her office she casually mentions her concern regarding the child to her supervisor. Both are mandated reporters but neither calls the state child abuse hotline. A week later they find out that, tragically, the child died a few days after the case manager had made her visit. The cause of death was non-accidental blunt force trauma.
Months later a lawsuit is initiated by the estate of the deceased child. Among the named defendants are the social work case manager and her supervisor. The plaintiffs claim that, as mandated reporters, both were negligent in not contacting the state hotline. Had they done so the child would not have died.
In its publication, Mandatory Reporters of Child Abuse and Neglect (2016), the Child Welfare Information Gateway reports: “The circumstances under which a mandatory reporter must make a report vary from State to State. Typically, a report must be made when the reporter, in his or her official capacity, suspects or has reason to believe that a child has been abused or neglected. Another standard frequently used is in situations in which the reporter has knowledge of, or observes a child being subjected to, conditions that would reasonably result in harm to the child”.
Mandated reporters, especially child care workers, health professionals, and educators, may see children on a daily basis who have suffered harm. This does not necessarily mean the children were abused or neglected. Mandated reporters are not obligated to determine whether abuse or neglect has in fact happened or is likely to occur. They are not CPS investigators. Their duty to report begins once, in their own minds, they reach the threshold point of suspecting that abuse or neglect may have occurred or may occur in the future. What may be characterized as ‘concern’ to one mandated reporter may be ‘suspicion’ to another. The two terms are not the same. Look at a thesaurus, and you’ll find that synonyms for ‘concern’ include anxiety, worry, disquiet, apprehensiveness, unease, and consternation. The terms ‘suspect’, ‘suspicion’ or similar terms do not appear.
How To Permit Mandatory Reporters The Use Of Their Discretion And Best Judgment In Cases Of Child Abuse?
Suspicion must be grounded in the process of accurate observation, analysis, and assessment. Florida attorney Troy Beecher notes that “Mandatory reporters and investigators face a number of challenges, including heavy caseloads, limited financial resources, and, in most cases no opportunity (or legal right) to observe the home environment around the clock. They are not always optimally informed of all the factual circumstances under which abuse reports arise. They are often required to make quick decisions based on their personal observations and available records and, absent any reason to disbelieve otherwise, information provided from a child’s caretakers.
Certain observations such as sluggishness, illness, or even minor bumps and bruises, are not uncommon for children even in households not under agency supervision. It is for these reasons that state legislatures must distinguish “suspicions” of child abuse from mere “concerns” to strike a fair balance between protecting children and permitting mandatory reporters to use their discretion and best judgment given the inherent challenges.”
Mandated reporters can find themselves in rapidly evolving circumstances where they may have to make quick judgments to deal with potentially dangerous situations. If mandated reporters have observed a child being subjected to circumstances or conditions that would result in abuse or neglect they should report. Absent evidence which obviously is indicative of present suspected abuse or neglect or that would result in future abuse or neglect, we must acknowledge the subjective, individualized nature of mandated reporting. Suspicion is more than just a hunch. Our understandable revulsion at child abuse should not, using 20/20 hindsight, result in a generalized antipathy to mandated reporters after the fact.
Publisher’s Note: Where Does Ohio Stand on Child Abuse Mandated Reporters Issues?
Ohio Revised Code § 2151.421(A)(1)(a) states that no mandatory reporter, (found in (A)(1)(b) of the same section) who is acting in an official or professional capacity, and “knows, or has reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect,” that a child has suffered or faces threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect, shall fail to immediately report it. In Kraynak v. Youngstown City School Dist. Bd. of Edn., the Ohio Supreme Court stated that the standard in Ohio is clearly an objective one. 118 Ohio St.3d 400.
Daniel Pollack is a professor at Yeshiva University’s School of Social Work in New York City and a frequent expert witness in child welfare cases, including child abuse, neglect and dependency cases. Dan is a frequent guest contributor to the Ohio Family Law Blog since 2009. He can be reached at firstname.lastname@example.org This article, “For Mandated Reporters, Concern is not the Same as Suspicion” originally appeared in Policy & Practice, October 2017, 31 & 39.
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Guest Contributor, Daniel Pollack
Daniel Pollack, MSW, Esq. is professor at Yeshiva University's School of Social Work and a frequent expert witness in child welfare lawsuits. Contact: Email: email@example.com Ph: 212-960-0836.