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NCYL Asks California Court to Strengthen Child Abuse Reporting Requirements

beb804dbfeNCYL wrote and coordinated signatories for an amicus brief urging the California Supreme Court to interpret California’s Child Abuse and Neglect Reporting Act (CANRA) in light of its purpose: “to protect children from abuse and neglect.” The case, which is still pending before the California Supreme Court, is B.H. v. County of San Bernadino.

Failure to report child abuse is endemic, and the resulting harm falls heavily on some of California’s most vulnerable children. CANRA protects children from abuse by disrupting the community silence that otherwise allows it to continue unabated, behind closed doors. Confirming that agencies and individual mandated reporters are liable when they violate CANRA’ s distinctive reporting requirements is a critical tool for improving child welfare outcomes.

Nearly forty years after California first mandated child abuse reporting, systemic failures continue to plague efforts to protect children from abuse and neglect. Inaccurate assumptions about the risk factors for child abuse, what constitutes child abuse, and the standards for reporting lead to widespread violation of CANRA’s individual and agency reporting requirements. Such violations are both more likely and more hazardous for California’s most vulnerable children: children under four-years old; children in high-conflict custody disputes; children who witness domestic violence; and children who are commercially sexually exploited.

This pervasive problem is borne out by the tragic facts of the case. B.H. was a two-year-old embroiled in a high-conflict custody dispute when the San Bernardino County Sheriff’s Department received a 911 call of suspected child abuse. The call came from the child’s maternal grandmother, and the suspected abuser was the child’s father. The County did not cross-report the call to the child welfare agency, as it was required to do under § 11166(k). It did dispatch a Deputy to investigate. After investigating, however, the Deputy decided not to file a report under § 11166(a), despite evidence that Defendants’ own witnesses admit should have led a reasonable officer to suspect abuse. A month later, B.H. received a devastating head injury while in the care of his father; that injury will permanently disable him.

NCYL’s brief explains that the primary obstacles to protecting children from abuse and neglect are secrecy and silence, the very hallmarks of abuse itself. CANRA counters both individual and systemic participation in that silence by creating a carefully articulated system of reporting requirements: mandated reporting by designated professionals, voluntary reporting by any other person, and immediate cross-reporting between the law enforcement and child welfare agencies required to accept these reports. CANRA is designed to shine a bright light into a shadowy world.

NCYL is urging the Court to preserve and strengthen this light by clarifying that:

  • Section 11166(k) of CANRA imposes on a law enforcement agency a mandatory duty to cross-report “immediately” every suspected instance of child abuse or neglect “reported to it;” and an agency is liable for breach of this mandatory duty under Gov’t Code § 815.6.
  • Section 11166(a)(1) of CANRA requires law enforcement officers to file a report whenever the statute’s objective standard is met—that is, when the facts “could cause a reasonable person in a like position … to suspect child abuse or neglect.”
  • Neither discretionary immunity under Government Code § 820.2 nor prosecutorial immunity under Government Code § 821.6 is available for the type of decision-making involved in determining whether § 11166(a) requires a report. All mandated reporters—whether public or private employees—can be held liable when they violate CANRA’s reporting requirements.

These holdings will guarantee B.H.—and other vulnerable children—the protection that the California Legislature intended to provide them.

The case also raises significant issues regarding the extent to which public entities may be held either directly or vicariously liable for governmental decisions. The Supreme Court has clarified in several other contexts that decisions are not discretionary—and therefore are not protected by statutory immunity—unless they involve “basic policy decisions” or “quasi-legislative policy-making.” In the past, lower courts frequently have agreed with school districts and county departments that decisions made by officers, teachers and social workers in individual cases are discretionary in nature. Consequently, the decision in this case may have repercussions throughout child welfare, probation, and other child-serving departments and beyond. Legal liability is an important tool for holding child-serving agencies accountable and for ensuring adequate funding to those agencies so that officials can do their work effectively.

Advokids, the Fresno Council on Child Abuse Prevention, Legal Advocates for Children and Youth, the National Association of Counsel for Children, and Michael Gates, who drafted CANRA, joined NCYL’s brief in support of Plaintiff-Appellant B.H. and his guardian ad litem, L.H.

B.H. v. County of San Bernadino has been fully briefed but as of publication, no date has been set for arguments.

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