Mandated Reporting

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A LL A BOUT THE A UTHORS

With offices in Los Angeles, San Francisco, Fresno, San Diego and Sacramento, the law firm of Liebert Cassidy Whitmore represents public agency management in all aspects of labor and employment law, labor relations, and education law. The Firm's representation of cities, counties, special districts, transit authorities, school districts, and colleges throughout California, encompasses all phases of counseling and representational services in negotiations, arbitrations, fact findings, and administrative proceedings before local, state and federal boards and commissions, including the Public Employment Relations Board, Fair Employment and Housing Commission, Equal Employment Opportunity Commission, Department of Labor and the Office for Civil Rights. The Firm regularly handles a wide variety of labor and employment litigation, from the inception of complaints through trial and appeal, in state and federal courts. The Firm places a unique emphasis on preventive measures to ensure compliance with the law and to avoid costly litigation. For more than thirty years, the Firm has successfully developed and presented training workshops and speeches on all aspects of employment relations for numerous public agencies and state and federal public sector coalitions, including the National League of Cities, National Association of Counties, International Personnel Management Association, United States Government Finance Officers Association, National Employment Law Institute, National Public Employer Labor Relations Association, California Public Employer Labor Relations Association, County Counsels’ Association of California, League of California Cities, California State Association of Counties, Public Agency Risk Management Authority, the Association of California School Administrators, the California School Boards Association, and the California Association of Independent Schools.

This workbook contains generalized legal information as it existed at the time the workbook was prepared. Changes in the law occur on an on going basis. For these reasons, the legal information cited in this workbook should not be acted upon in any particular situation without professional advice.

Copyright © 2020 Liebert Cassidy Whitmore. All rights reserved. No part of this publication may be reproduced, stored, transmitted, or disseminated in any form or by any means without prior written permission from Liebert Cassidy Whitmore.

T ABLE OF C ONTENTS

6-20

S ECTION 1 Introduction ...................................................................................................................................................................6

S ECTION 2 Who Is A Mandated Reporter? ......................................................................................................................................6

S ECTION 3 Reasonable Suspicion: What Triggers A Report ...........................................................................................................7

S ECTION 4 What Is Child Abuse And Neglect?...............................................................................................................................8 A. Physical Abuse ................................................................................................................................................8 1. What Is Physical Abuse?..........................................................................................................................8 2. Red Flags: Physical Abuse .......................................................................................................................9 B. Sexual Abuse and/or Exploitation ...................................................................................................................9 1. What Is Sexual Abuse? ............................................................................................................................9 2. Duty To Report Sexual Abuse By A Minor and/or Peer ..........................................................................9 3. Red Flags: Sexual Abuse........................................................................................................................11 4. Duties Beyond Mandated Reporting ......................................................................................................11 C. Child Neglect.................................................................................................................................................12 1. What Is Child Neglect? ..........................................................................................................................12 2. Red Flags: Child Neglect .......................................................................................................................13 D. What About Mental Suffering? .....................................................................................................................13 S ECTION 5 Nuts and Bolts: Procedural Requirements ...................................................................................................................14 A. Preparing Your Mandated Reporters To Report............................................................................................14 B. Reports Are An Individual Duty ...................................................................................................................15 C. Telephone Report ..........................................................................................................................................15 D. Written Report...............................................................................................................................................15 E. Internet Report...............................................................................................................................................15 F. Confidentiality of Identity of Reporter..........................................................................................................16 G. Immunity From Suit ......................................................................................................................................17 H. Institutional Reporting Obligations Under the Safe Sport Act ........................................................................17 S ECTION 6 Mandated Reporting In Community College Districts ................................................................................................19 A. Instructors, Counselors and Classified Employees........................................................................................19 B. Clery Act and Mandated Reporting...............................................................................................................20 S ECTION 7 Police Investigations of Reports of Child Abuse and Neglect .....................................................................................21 A. Investigatory Interviews ................................................................................................................................21 B. A Child’s Right To A “Trusted Adult” .........................................................................................................22 C. Arrest of a Minor Perpetrator ........................................................................................................................22

E NDNOTES ...................................................................................................................................................................24

I NTRODUCTION

Section 1

Employees who work with minors, or have direct contact with them in the course and scope of employment, are obligated to report known or reasonably suspected child abuse or neglect. Teachers, lifeguards, instructional aides, school and youth organization administrators, coaches, community college instructors, and camp counselors are just some of the positions considered to be mandated reporters of child abuse and neglect in California . This workbook provides a comprehensive overview of the California Child Abuse and Neglect Reporting Act (“CANRA”), the law regarding mandated reporting. 1 The workbook addresses some of the most common (and complex) questions related to a mandated reporter’s reporting obligation. The workbook also contains employer resources, including a statutorily required mandated reporter acknowledgement form, a reporting checklist, and strategies for employers to use in the event that a child abuse investigation arises from a mandated report.

W HO I S A M ANDATED R EPORTER ?

Section 2

Mandated reporters are defined generally as administrators and employees of public or private organizations whose duties require direct contact and supervision of children. 2 Specific examples include:



Teachers and Administrators

 Instructional Aides and Teacher’s Aides and Assistants

 Classified Employees of Any Public School



School Bus Drivers

 Supervisors of Child Welfare and Attendance

 Certificated Pupil Personnel Employees



School District Police or Security

 Administrators of Public or Private Day Camps

 Administrators or Employees of a Public or Private Youth Center, Youth Recreation Center or Youth Organization.

 Peace Officers, Fire Fighters, Paramedics



Athletic Coaches

This list is not exhaustive and further examples are set forth in the Penal Code. 3

Volunteers are not considered mandated reporters. However, they are encouraged to report known or reasonably suspected child abuse.

LCW Practice Advisor

An employee is a mandated reporter only when, “in his or her professional capacity or within the scope of his or her employment” the person has knowledge of or reasonably suspects a child is the victim of abuse or neglect. 4 “Professional capacity” does not refer to abuse at the place of employment, but rather refers to whether the mandated reporter learned of the information by virtue of his or her employment position. 5 For example, if a minor approaches his or her teacher off-campus and confides that he or she is being abused, it is likely a mandated report must be filed. 6 If, however, a minor approaches his or her neighbor, who also happens to be a teacher, and confides that he is being abused, the neighbor may, but is not required to make a report. 7

R EASONABLE S USPICION : W HAT T RIGGERS A R EPORT

Section 3

A mandated report must be filed where there is a “reasonable suspicion” of abuse or neglect. 8 This section explains and provides an overview of the reasonable suspicion standard. Not every suspicion of abuse or neglect requires a mandated report. Rather, the law is clear that in order to trigger the duty to report, a mandated reporter must actually know or have an objectively reasonable suspicion that abuse or neglect has occurred. The reasonable suspicion standard means a reasonable person in a similar position, drawing upon his or her training and experience, would suspect abuse or neglect. 9 Reasonable suspicion does not require absolute certainty.

Mandated reporters should not investigate allegations or suspicions of abuse but may rely on their own training and experience, may casually question the alleged victim, may observe body language and behavior and evaluate credibility, and may consider any other additional knowledge they may have to formulate reasonable suspicion of abuse or neglect.

LCW Practice Advisor

Mandated reporters are often understandably concerned about properly applying the reasonable suspicion standard. LCW has found that hypothetical scenarios can be helpful in understanding the standard.

W HAT I S C HILD A BUSE A ND N EGLECT ?

Section 4

"Child abuse" broadly includes any physical injury which is inflicted by other than accidental means on a child. 10 It generally falls into one of three categories: physical abuse, sexual abuse, and emotional abuse. In addition, the CANRA requires mandated reporters to make reports of known or reasonably suspected child neglect. Each type of abuse, as well as neglect, has its own standards and definitions. A clear understanding of each category will assist mandated reporters in determining what constitutes a reasonable suspicion of abuse or neglect.

A. P HYSICAL A BUSE

1. W HAT I S P HYSICAL A BUSE ? Physical abuse means the willful harming or injuring of a child, the endangering of the person or health of a child, and unlawful corporal punishment or injury resulting in a traumatic condition. 11 It includes instances where a person with care and custody of a 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. 12 Therefore, a person may physically abuse a child without actually touching him or her. For purposes of CANRA, the term "traumatic condition" is not limited to extreme injuries, and includes wounds or other bodily conditions resulting from the application of external force. 13 A cut and swollen lip and a scratched neck from choking have each been held to be a "traumatic condition." 14 The term “unlawful corporal punishment” does not include reasonable force by a peace officer. 15 Nor does unlawful corporal punishment include the use of reasonable force by public school employees. 16 They are permitted to exercise physical control over a student that is “reasonably necessary to maintain order, protect property, or protect the health and safety of pupils, or to maintain proper and appropriate conditions conducive to learning.” 17 A parent also has the right to reasonably discipline his or her child and to administer reasonable punishment. 18

The corporal punishment exemption is expressly limited to public K-12 schools. However, given that the purpose of the CANRA is to protect children from actual abuse and neglect, it is possible that other public agencies may use reasonable force to prevent injury to persons or property, to remove a weapon, or to maintain a safe and appropriate environment for minors.

LCW Practice Advisor

It is not uncommon for children to sustain cuts, scratches and other physical wounds as a result of a physical altercation with another child. These kinds of “mutual affray” situations do not constitute child abuse and do not trigger a mandated report. 19 However, a mandated report may be triggered in instances of non-mutual physical assault by one or more children. 2. R ED F LAGS : P HYSICAL A BUSE Because children often naturally sustain bumps and bruises in the normal course of childhood activities and play, it is important not to overreact. Ask yourself: Is this an unusual injury for a child of this age (e.g. fracture in a toddler)? Is this an injury that needs medical attention? Is this an injury that is a result of a medical condition that is not being addressed? Is this an injury without an explanation, or with an inconsistent explanation, or an explanation that does not comport with a diagnosis? Finally, consider a child’s demeanor. As someone with frequent contact with children, a mandated reporter may be in the best position to observe changes in behavior. Watch for drastic changes in mood or behavior. Watch for excessively aggressive behavior, violent tendencies, cruelty to other children or animals, visible depression, and expressed suicidal or homicidal ideations. Be aware, however, that there can be many reasons a child’s behavior changes, such as divorce, an argument with a friend, or a death in the family. Not every change in behavior is a sign of abuse or neglect. 20 1. W HAT I S S EXUAL A BUSE ? Sexual abuse includes sexual assault and sexual exploitation. 21 Sexual assault is generally defined as forcible rape, sodomy, incest, child molestation, and lewd and lascivious conduct. 22 It includes any oral, anal, or genital intercourse, exposing oneself to a child, or exposing a child to a sex act. Intentional touching of “intimate parts,” or the clothing covering them, for the purpose of sexual arousal or gratification, is also sexual abuse. 23 It does not include normal caretaker responsibilities, such as bathing a child, demonstrations of affection, or valid medical procedures. 24 Sexual exploitation of a child includes depicting a minor engaged in obscene acts (e.g., the making, selling or distributing of child pornography) or knowing involvement in child prostitution (e.g., sex trafficking). 25 2. D UTY T O R EPORT S EXUAL A BUSE B Y A M INOR AND / OR P EER Under certain circumstances, mandated reporters are required to make mandated reports based on sexual conduct between minors. Where consensual sexual conduct is between minors, it is not considered child abuse if: B. S EXUAL A BUSE AND / OR E XPLOITATION

 Both minors are under the age of 14, and they are of similar age and cognitive ability. Although the court has not defined “of similar age,” we treat it to mean within one year of age difference.  Both minors are 14 years of age or older. Consensual sexual activity between two minors, both of whom are at least 14 is not considered reportable abuse, unless it is incest.

Sexual activity between a minor and adult will generally constitute reportable sexual abuse. Certainly, for example, any sexual conduct between a minor student at a school and a school employee must be reported. However, as minors become older teenagers (i.e. 16 or older), the law becomes less clear as to when and whether consensual sexual activity is reportable, and may depend on the relative ages of the individuals and the nature of the sexual activity. For example (excluding conduct by a school’s own employees, which must be reported), consensual intercourse between a minor and an adult is mandatory reportable sexual abuse only if the minor is 15 or younger, and the adult is 21 or older. 26 There may be other situations without this age difference that require mandated reporting, such as nonconsensual sexual activity or situations involving an impairment of judgment or an abuse of power. Beyond that, the law is complex, and at times internally inconsistent, regarding consensual sexual activity between teenagers who are 16 or 17 years old and someone who is 18 or older. We recommend you contact legal counsel if faced with this situation. A growing number of concerns regarding sexual exploitation of minors pertain to “sexting,” or the exchange of sexual images via cell phone. Many young people engage in mutually consensual sexting with romantic partners or other minors, but sometimes situations arise where one minor obtains an image of another without consent and either views it or distributes it to others. Mandated reporters are often confused about what to do with respect to reports of sexting. Some states have enacted laws that protect teenage sexters. For example, in New York state, if two people under 20 years old who are 5 or fewer years in age difference exchange sexually explicit pictures, they can be sent to a diversion program instead of being prosecuted criminally. This program focuses on education regarding the risks and dangers of sexting. 27 California has not enacted such a law addressing this issue. Under the letter of the law in California, some types of sexting may be mandated reports. For example, Penal Code section 11165.1 gives examples of acts that constitute sexual exploitation under the law and are therefore reportable. One of these examples is any act in violation of Penal Code section 311.2, which includes the exchange with a minor of a photo of a minor engaging in sexual conduct such as the “exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer.” Therefore, if one student has such a picture of another student, whom he or she knows to be under 18, and the student exchanges the picture with another student, then a reportable violation has

likely occurred. This is true even where the sender and third-parties are all also minors. There is no right to possess such photos.

Some mandated reporters are reluctant to report this behavior when it is consensual between two minors. Currently, the letter of the law suggests the reporter should report the matter, though it is quite possible that Child Protective Services or another law enforcement agency might not take such a report. The reporter should certainly report if a minor has had his or her picture sent to someone without his or her consent. It is critical to educate young people and their parents about how the law may not have caught up with technology and society in this area, and they are engaging in risky behavior by sexting. Once an image has been sent out, the subject loses all control over how that image is spread and seen.

3. R ED F LAGS : S EXUAL A BUSE

As with physical abuse, an actual report by or of a child suffering from sexual abuse may trigger reasonable suspicion and the duty to report.

Some physical red flags to consider are pregnancy (which, in and of itself is not reasonable suspicion, but must be considered in context with the age of the child), 28 sexually transmitted diseases, or complaints of pain, swelling or itching in the genital area. These examples are offered as red flags that may be observed in the course and scope of a mandated reporter’s job duties, as a result of a child’s verbal complaint of discomfort. 29 4. D UTIES B EYOND M ANDATED R EPORTING School districts and other agencies that supervise children should also be aware that they may have reporting duties that go beyond the mandated reporter obligations that are the focus of this workbook. Where an agency stands “ in loco parentis ” (i.e. in place of the parent) that agency may also have a duty to notify the parents of the alleged victim.

In Phyllis P. v. Claremont Unified School District, a 13- year old student sexually assaulted an eight-year-old. The district did not initially notify the victim’s parents. The Court determined that the district had a duty to notify the parents because of a “special relationship.” The Court held that the district stood in loco parentis (in place of the parent) and as such owed a duty of care both to the child and the parent. Similarly, a day camp program or a child day care center could be considered in loco parentis and thus may owe a duty of care to advise parents where they reasonably suspect their child was the victim of abuse.

LCW Practice Advisor

When, based on the above standards and criteria a school or other agency does have a reasonable suspicion of sexual abuse, in particular involving an employee, reporting to the local enforcement authorities may not be sufficient. The parents of the victim may also need to be notified.

Doe v. Superior Court A Camp employee was observed engaging in questionable behavior with minors. The Camp investigated and determined that no inappropriate touching occurred, but terminated the employee anyway. The Camp did not notify the minors’ parents of the incidents. Years later, the incidents came out when the former employee was being investigated regarding other allegations. The parents of one of the minors sued the Camp alleging, among other things, fraud in failing to inform them of the incidents. The Court of Appeal found the Camp had a special relationship to the minor and parents since the Camp acted as a day care provider. The Camp had a duty to exercise reasonable care to supervise the employee and a duty to exercise reasonable care to prevent harm to the minor. Once the Camp had knowledge of the employee’s inappropriate behavior, it had a duty to prevent further harm to the minor, which included an obligation to timely disclose the suspected molestation to the parents. 30 Conti v. Watchtower Bible & Tract Society Church clergy were aware that a member of their congregation had a history of child abuse. The Church allowed him to participate in field service groups with Conti when her parents were not present and he molested her. The Court found that the Church had a duty to supervise the abuser’s participation in church activities to prevent a recurrence of abuse. The Church should have banned the abuser from field service or controlled his access to children by keeping an adult with him at all times. The Court also found that the clergy had no duty to report the abuse under CANRA because no duty arises when the information is learned from confidential penitential communications.

C. C HILD N EGLECT

1. W HAT I S C HILD N EGLECT ? “Neglect” refers to the negligent treatment or maltreatment of a child, by a person responsible for the child’s welfare, which results in harm or threatened harm to the child. 31 “Severe Neglect” means the willful causing or permitting a child’s health to be endangered. It includes the intentional failure by a child’s custodian to provide adequate food, clothing, shelter, medical care, or supervision, and must be reported even though no physical injury has occurred. 32

Neglect does not include sporadic occasions where a child appears very dirty or seems to be without food. Neither is a parent or guardian neglectful simply because they do not have the means to provide a child with adequate food and medical care, i.e. live in poverty. Furthermore, the fact that a child is homeless or an unaccompanied minor is not, in and of itself, a sufficient basis for reporting that child as neglected or abused. 33

2. R ED F LAGS : C HILD N EGLECT 34

a red flag that a child’s needs are not being met. Unattended medical problems can also raise a red flag of child neglect. However, if a child is not receiving medical care for religious reasons, that reason alone shall not constitute neglect. 35

D. W HAT A BOUT M ENTAL S UFFERING ?

Child abuse includes psychological injuries that rise to the level of "unjustifiable mental suffering" and must be reported. 36 The Legislature mandates the reporting of "unjustifiable mental suffering" inflicted under conditions where great physical harm or death is likely. 37 Therefore, if a mandated reporter knows or suspects that a child is being subjected to psychological or emotional suffering and that the child is likely to harm him or herself, it must be reported. Reportable mental suffering may also cover situations where another student is bullying a child (not necessarily physically) to such a degree that the mandated reporter fears for the physical well-being of the child. "Mental suffering" or emotional abuse that does not rise to the level of “unjustifiable mental suffering” may, rather than must, be reported. 38 Thus, when a mandated reporter knows or suspects that mental suffering has been inflicted on a child, or that the child’s emotional well-being has been significantly endangered, the mandated reporter may, rather than must make a report. A mandated reporter may also report any suspicion that the child is suffering from serious emotional damage, severe anxiety, depression, withdrawal, or untoward aggressive behavior toward his or her self or others. 39 Children may also suffer emotional abuse when witnessing abuse. However, when a child witnesses or is present during an act of domestic violence committed by a member of the household or relative of the victim or minor, or if the defendant or victim is a parent or foster parent of a minor, it is not a separate act of child abuse or neglect. Instead, it will be considered a circumstance in aggravation for sentencing. 40 These situations may result in civil and criminal liability, including jail time for the abuser. 41

N UTS AND B OLTS : P ROCEDURAL R EQUIREMENTS

Section 5

A. P REPARING Y OUR M ANDATED R EPORTERS T O R EPORT Employers must inform mandated reporters of their reporting obligations, including: when they must report, how to report and to whom, what forms to use, the timeline for both telephone and written reports, and how to respond if there is an emergency situation or the alleged abuser is on site. 42 All mandated reporters must sign a form acknowledging that they understand their responsibilities. 43 As of 2015, public schools including charter schools are required to provide training to mandated reporters regarding their obligations. 44 As of January 1, 2018, applicants for licenses to run child daycare facilities are also required to complete training. 45 In addition, all administrators and employees of child day care facilities must complete the training within 90 days of starting employment and it must be repeated every two years. 46 The training for these employees associated with child day care facilities includes information specific to the care and development of infants and young children and might be different from training required only for K-12 employees. The Legislature also wants to encourage children to be able to report abuse or neglect themselves. Education Code section 33133.5 requires the Superintendent of Public Instruction to create a poster that notifies children of the appropriate telephone number to call to report child abuse or neglect. The poster is available to download. The statute “encourages school districts, charter schools, and private schools to post the appropriate version or versions of the poster in an area of the school where pupils frequently congregate.” 47 Mandated reporters are not required to inform their employers of suspected abuse or of their decision to make a mandated report. 48 However, making a mandated report can be a very difficult decision for an employee for a number of reasons. The mandated reporter may know the suspected abuser or may have a close relationship with the child. The mandated reporter may not know if he or she has “reasonable suspicion.” The mandated reporter could be scared of the repercussions of making a report. CANRA allows employers to establish internal procedures to facilitate reporting and apprise supervisors and administrators of reports, but should not require any reporter to disclose his or her identity. 49 Accordingly, employers should create policies which not only inform mandated reporters of their duties, but which encourage (but do not require) mandated reporters to consult their supervisors, administrators or appropriate health personnel (e.g. nurses or psychologists) in cases of suspected abuse.

B. R EPORTS A RE A N I NDIVIDUAL D UTY The reporting duties under the CANRA are individual. 50 Making a report of suspected child abuse or neglect to an employer, supervisor, or administrator does not satisfy the duty of a mandated reporter. 51 Furthermore, no supervisor or administrator may impede or inhibit a report, or penalize a person for making a report. 52 However, internal procedures designed to facilitate reporting and apprise supervisors and administrators of mandated reports may be established provided they are not inconsistent with the CANRA requirements. When two or more mandated reporters agree as to a suspected instance of child abuse or neglect, only one member of the team selected by mutual agreement must make a report by telephone and in writing. However, any member of the team who learns that the selected reporter failed to make the report must do so immediately. 53 C. T ELEPHONE R EPORT Those with an affirmative duty to report child abuse must make a telephone report of known or suspected child abuse immediately or as soon as possible to a child protective agency stating his/her (1) name; (2) name of the child; (3) present location of the child; (4) nature and extent of the injury; and (5) any other information requested by the child protective agency 54 under Penal Code section 11167, subdivision (a). 55 D. W RITTEN R EPORT Within 36 hours of making the telephone report, those with an affirmative duty to report must file a written report with the appropriate child protective agency. 56 The written report must be made on a Department of Justice Form DOJ SS 8572. E. I NTERNET R EPORT In 2016, a new section was added to the Penal Code which allows for the creation of a pilot program for Internet-based reporting of suspected abuse or neglect. 57 Under this program, certain county agencies can develop pilot programs which may run through January 1, 2021. The effectiveness of the program will be monitored and evaluated and there will be a report back to the Legislature in 2020. Under the new law, only certain types of mandated reports will be permissible via the Internet-based system. The program can only accept reports where: (1) there is no immediate risk of abuse, neglect, or exploitation and no imminent danger of severe harm or death; (2) the reporter completes all sections of the agency-created reporting form; (3) the program is secure such that no one’s confidentiality will be violated; and (4) the reporter is a member of one of the approved categories (police officers, social workers, school teachers, counselors, and administrators, doctors and nurses, and coroners). 58

The Internet report will replace the initial phone call and will eliminate the need to follow up in writing. In late 2017, Los Angeles County voted to allow implementation for its Department of Child and Family Services to develop this type of pilot program. Agencies may want to explore whether their county’s agency has implemented this pilot program, as the Internet reporting may be more convenient in cases where imminent harm is not feared. If the programs are deemed effective and successful, there is the possibility that the Legislature will move to expand them after 2020. F. C ONFIDENTIALITY OF I DENTITY OF R EPORTER Child abuse reports are confidential and should be disclosed only to personnel who are a part of the reporting procedure stated above. 59 Child abuse reports should be kept in a separate, confidential file either by the reporter or an administrator. A reporter should never give a copy of the report to the parent of the child involved, or to anyone else who does not specifically have legal permission to receive the report. 60 The confidentiality provisions under CANRA apply to the police and child protection workers in their capacity as the agencies in charge of investigating the known or reasonably suspected case of child abuse. 61 Police and investigators must keep the identity of all persons who report confidential, and they may not disclose the identity of the reporter to the reporter’s employer unless the employee consents or the court orders the disclosure. 62

It is a misdemeanor for anyone – including a police officer – to disclose child abuse reports, except in very limited circumstances. 63 For example, disclosure may be made to:

 An investigator from an agency or the agency investigating a report of child abuse, though the identity of the person who reports shall be kept confidential, disclosed only among the agencies receiving or investigating the mandated reports, or county counsel as applicable, and shall not be disclosed to the reporter’s employer except with the employee’s consent or a court order; 64  Department of Justice disclosures to agencies authorized to receive the information;  Persons or agencies responsible for the licensing of facilities which care for children;  The State Department of Social Services or any county licensing agency which has contracted with the state, when an individual has applied for a community care license or child day care license, or for employment in an out-of-home care facility, or when a complaint alleges child abuse or neglect by an operator or employee of an out-of-home care facility;



Coroners and medical examiners;

 Personnel from an agency responsible for making a placement of a child;

 Out-of-state law enforcement agencies conducting an investigation of child abuse or neglect under certain circumstances;

 Each chairperson of a county child death review team.

G. I MMUNITY F ROM S UIT A mandated reporter is immune from civil and criminal liability for filing a report where the reporter had a reasonable suspicion or knowledge of abuse or neglect. The immunity applies even where the mandated reporter acquired the reasonable suspicion outside of the scope of his or her employment. Similar protections apply to non-mandated reporters who file a mandated report, except for a false report or one made with reckless disregard for the truth. 65 A mandated reporter may recover attorney’s fees and costs that are incurred as a result of the mandated reporter defending himself or herself for making a report. 66 In contrast, mandated reporters are not immune where they have an obligation to report but fail to do so. H. I NSTITUTIONAL R EPORTING O BLIGATIONS U NDER THE S AFE S PORT A CT While the CANRA only imposes an individual duty to report suspected abuse, schools should be aware that the federal Safe Sport Act imposes a duty on the educational institution itself, in certain circumstances. Specifically, an educational institution will have a duty to report suspected abuse and neglect if the school engages in interstate athletic competitions. The Safe Sport Act amends federal Victims of Child Abuse Act of 1990 and the Ted Stevens Olympic and Amateur Sports Act. The Safe Sport Act, passed in 2018, declares that its purpose is to “prevent the sexual abuse of minors and amateur athletes.” 67 If a school engages in athletic competitions across state lines, then the federal law may apply as well as California state law, and the school itself would have a duty to report.

The amended Victims of Child Abuse Act requires the following individuals to report suspicion of child abuse:

(1) Covered professional is defined as “A person who, while engaged in a professional capacity or activity … on Federal land or in a federally operated (or contracted) facility, learns of facts that give reason to suspect that a child has suffered an incident of child abuse.” Professionals subject to this provision include mental and physical health care professionals, social workers and counselors, teachers, and law enforcement personnel. 68

(2) Covered individual is defined as “an adult who is authorized, by a national governing body, a member of a national governing body, or an amateur sports organization that participates in interstate or international amateur athletic competition, to interact with a minor or amateur athlete at an amateur sports organization facility or at any event sanctioned by a national governing body, a member of a national governing body, or such an amateur sports organization.” 69

 The term “event includes “travel, lodging, practice, competition, and health or medical treatment” 70  The term “amateur athlete” means “an athlete who meets the eligibility standards established by the national governing body or Paralympic sports organization for the sport in which the athlete competes.”  The term “amateur athletic competition” means “a contest, game, meet, match, tournament, regatta, or other event in which amateur athletes compete.”  The term “amateur sports organization” means “a not-for-profit corporation, association, or other group organized in the United States that sponsors or arranges an amateur athletic competition.”  The term “national governing body” means “an amateur sports organization that is recognized by the United States Olympic Committee.” 71

An “applicable amateur sports organization” must comply with reporting requirements established under the Victims of Child Abuse Act. It must also provide consistent training regarding the reporting and prevention of child abuse, prohibit retaliation, and establish reasonable procedures to limit one-on-one interactions between a minor amateur athlete and an adult at the amateur sports organization’s facility. 72 The Act applies to an amateur sports organization that,

 Participates in an interstate or international amateur athletic competition; and  Has a membership that includes any adult who is in regular contact with an amateur athlete who is a minor.” 73

Under this law, all covered individuals and organizations must report child abuse, defined as physical or mental injury, sexual abuse or exploitation, or negligent treatment. 74 Like the California law, there is immunity for reporters who act in good faith and a penalty for failure to report. 75 Compliance with California state reporting laws is considered sufficient, so if a reporter is following California law, that reporter is also complying with the federal law. This likely also applies to other programs run on the school’s campus, such as a summer camp. If the school becomes aware of abuse involving a camper, it should report the abuse.

Applicable sports organizations must also establish reasonable procedures to limit one- on-one interactions between minor athletes and an adult who is not the child’s parent or guardian and train adult members who are in contact with minor athletes. 76 If a school engages in athletic competitions across state lines, then the federal law may apply as well as California state law, and the school itself would have a duty to report. That is another reason why schools should consider having policies that require anyone who reasonably suspects abuse or neglect to inform the school of their suspicion. Schools subject to this law may also be required to train their employees as described in the law, which is another reason why training for all employees is a best practice.

M ANDATED R EPORTING I N C OMMUNITY C OLLEGE D ISTRICTS

Section 6

A. I NSTRUCTORS , C OUNSELORS AND C LASSIFIED E MPLOYEES While it is true that most community college students are over the age of 18, some regularly enrolled students are minors. Furthermore, there are additional ways by which minors come to have a presence on a college campus. These include high school-to- college bridge and dual enrollment programs, as well as educational or sports camps for youth held on college campuses. Additionally, many community colleges have daycare facilities on their campuses. In each of these situations, district employees who interact with minors are likely mandated reporters. In particular, the State Chancellor has opined that all community college instructors are mandated reporters. In Legal Opinion 02-03 regarding Child Abuse Reporting (February 25, 2002) the State Chancellor discusses Penal Code section 11165.7 and states:

We are aware that the words that are used in the Penal Code seem to reflect a K-12 structure more than a community college structure. For example, community colleges are typically referred to as "colleges," not "schools." Community colleges usually refer to "faculty" or "instructors," not "teachers." However, we believe that words like "schools" and "teachers," as used in identifying mandated reporters under the Act, should be broadly construed to give effect to the purpose and intent of the Act. Therefore, "teachers" would include community college instructors who are in a position to observe child abuse and neglect. 77

Similarly, the State Chancellor concluded that all college counselors are mandated reporters. With regard to classified employees, the State Chancellor concluded that:

classified employee[s] of any public school,"who are included by section 11165.7(a)(4) as mandated reporters, includes community college district classified employees if their scope of employment places them in similar contact with children on a regular and continuous basis such that evidence of child abuse or neglect would be readily apparent.” (Emphasis added.) 78

B. C LERY A CT AND M ANDATED R EPORTING A review of districts’ Clery Act obligations goes beyond the scope of this workbook. However, we note briefly that districts should be careful not to confuse the sometimes overlapping obligations under the CANRA and the Clery Act. Generally, districts should keep in mind the following three guidelines in meeting these dual responsibilities: 1. Where a Clery Act event involves a minor, the district’s compliance with its Clery Act reporting obligations does not satisfy the obligation of the mandated reporter. These are separate, independent obligations—the former institutional, the latter individual. 2. Campus Security Authorities (CSAs) under the Clery Act should be informed that they are mandated reporters, and that their reporting activities under Clery are separate from their mandated reporting duties. In other words, if a minor is abused on campus, and a report is made to a CSA this will trigger both Clery reporting and mandated reporting duties. 3. Not every sex offense reportable under the Clery Act constitutes sexual abuse requiring a mandated report. Sexual offenses are among the crimes that must be reported under the Clery Act, including non-forcible sex offenses such as statutory rape. Statutory rape is defined as non-forcible sexual intercourse with a person who is under the age of consent. However, as summarized above, a mandated report of consensual sex with a minor is dependent upon the age difference between the participants. Thus, there will be situations where an incident involving a minor may trigger a duty to report under Clery, but not trigger a duty to make a mandated report.

P OLICE I NVESTIGATIONS OF R EPORTS OF C HILD A BUSE AND N EGLECT

Section 7

A. I NVESTIGATORY I NTERVIEWS A mandated report of child abuse or neglect must be investigated by local law enforcement or another appropriate agency. 79 As a result of a mandated report, law enforcement or child protective workers may visit the workplace in order to interview the child or other witnesses. Until recently, very little guidance was provided regarding what a school, day camp or other entity should do in response to law enforcement investigations and requests for interviews. In Greene v. Camreta , the Ninth Circuit analyzed what a school district’s responsibility is in the wake of a request from law enforcement or another investigative agency for an interview with a child in the district’s care and custody. 80 An Oregon Deputy Sheriff accompanied a Department of Human Services case worker to a minor student’s school and was present during the two-hour interview of the minor. The case worker conducted the interview but the Deputy Sheriff, who did not have a warrant, court order, exigent circumstances or parental consent to question or be present while the student was questioned, sat through the interview. 81 The Deputy Sheriff did not ask any questions during the interview. The Court held that the in-school seizure of a suspected child abuse victim is not permissible without a court order or parental consent because of the Fourth Amendment. 82 The case worker’s decision to have the Deputy Sheriff accompany him to interview the potential child abuse victim “constituted sufficient entanglement with law enforcement to trigger the traditional Fourth Amendment prerequisites to seizure of a person.” 83 In reaching its conclusion, the Court relied on reasoning from an earlier decision where it held the warrantless, non-emergency search and seizure of an alleged victim of child sexual abuse at her home violated the Fourth Amendment. 84 The Court opined there was no evidence in the record to suggest that the “silent presence of a uniformed, armed police officer at an interview of a child in a grade school is helpful in any legitimate way to determining whether the child needs child protective services.” 85 It rejected an across- the-board exception for government officials who may believe there is a “special need” that would automatically justify dispensing of traditional Fourth Amendment protections. 86 The United States Supreme Court vacated the Ninth Circuit’s opinion. 87 It found the issue moot and therefore did not sustain or overturn the decision. Though the Ninth Circuit’s reasoning may provide insight as to how it would rule on a similar case, for now there is uncertainty as to what is required for law enforcement investigations.

The Greene case involved a public K-12 school district, but its reasoning does not appear to be limited to the public school context. It may apply whenever law enforcement is interviewing a minor. Similarly, in cases where a minor has been taken into custody as a victim of suspected child abuse a school district must provide the police officer with the address and telephone number of the minor’s parent or guardian. It is then the police officer’s duty to immediately notify the minor’s parent or guardian. 88 Though this applies specifically to public schools, other employers may want to follow the same procedure.

LCW Practice Advisor

B. A C HILD ’ S R IGHT T O A “T RUSTED A DULT ” In cases of suspected child abuse or neglect, the Penal Code specifically states that a suspected victim may be interviewed at school during the school day. 89 The child shall be given the option of being interviewed in private or may select any school employee, or volunteer to be present during the interview as a trusted adult. 90 It is the obligation of the agency investigating the child abuse or neglect to inform the child of this right prior to the interview. 91 The purpose of the selected trusted adult is to lend support to the child but not to participate in the interview or discuss the facts or circumstances of the case with the child. The selected adult must maintain confidentiality. The staff member may decline to participate. If he or she agrees, the interview shall take place when it is not an expense to the school. 92 School officials do not have the right to be present during an interview except as discussed above regarding child abuse; however, an officer may at his or her discretion permit a school official to be present. In cases of suspected child abuse by the parent, schools should permit the police to determine whether a parent shall be notified of the interview. 93 C. A RREST OF A M INOR P ERPETRATOR With regard to interviews of students who are not suspected victims of child abuse, a school will not be liable for releasing students for interviews with law enforcement officials so long as the school officials act within the proper standard of care; namely the degree of care which a person of ordinary prudence, charged with his or her duties, would exercise under the same circumstances. 94 In this situation, “ordinary care would consist of ascertaining the identity and the official capacity of the peace officer, the authority under which he acts, and in the case of the release of the child, the reason for such action.” 95

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