Legal FAQs Regarding Child Abuse

Transcription

1 Legal FAQs Regarding Child Abuse In Pennsylvania, The Child Protective Services Act codifies effective ways that services can be provided for children (including infants) who may be suffering from child abuse and how reporters can bring these children to the attention of child protective services. What is child abuse? The term child abuse shall mean any of the following: (i) Any recent act or failure to act by a perpetrator that causes non-accidental serious physical injury to a child under 18 years of age. (ii) An act or failure to act by a perpetrator that causes non-accidental serious mental injury to or sexual abuse or sexual exploitation of a child under 18 years of age. (iii) Any recent act, failure to act or series of such acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age. (iv) Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide essentials of life, including adequate medical care, which endangers a child's life or development or impairs the child's functioning. PA Law: 23 Pa.C.S. 6303(b)(1)(i)-(iv) What is considered serious physical injury? (i) Serious physical injury should be understood to be an injury that: (1) causes a child severe pain; or (2) significantly impairs a child s physical functioning, either temporarily or permanently. PA Law: 23 Pa.C.S. 6303(a) What is considered serious bodily injury? (i) Serious bodily injury should be understood to be a bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of function of any bodily member or organ. PA Law: 23 Pa. C.S. 6303(a) What is considered serious mental injury? (i) Serious mental injury should be understood to be a psychological condition, as diagnosed by a physician or licensed psychologist, including the refusal of appropriate treatment, that: (a) renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the child's life or safety is threatened; or (b) seriously interferes with a child's ability to accomplish age-appropriate developmental and social tasks. PA Law: 23 Pa. C.S. 6303(a)

2 2 What is considered serious physical neglect? (i) Serious physical neglect should be understood to include any prolonged or repeated lack of supervision or the failure to provide essentials of life, including adequate medical care, which endangers a child s life or development or impairs the child s function. 23 Pa.C.S. 6303(b)(1)(iv) When is it NOT child abuse? (i) It will not be considered child abuse and a child will not be found to be physically or mentally abused based on injuries that result solely from environmental factors that are beyond the control of the parent or person responsible for the child s welfare, such as inadequate housing, furnishings, income, clothing, and medical care. 23 Pa.C.S. 6303(b)(2) What is the religious exception to medical treatment? When does religion impact the finding of physical or mental abuse? (i) If a county agency investigates and determines that a child has not been provided needed medical or surgical care because of seriously held religious beliefs of the child s parents, guardian or personal responsible for the child s welfare, which beliefs are consistent with those of a bona fide religion, the child shall not be deemed to be physically or mentally abused. 23 Pa.C.S. 6303(b)(3) However, the county agency will closely monitor the child and shall seek court-ordered medical intervention when the lack of medical or surgical care threatens the child s life or long-term health. 23 Pa.C.S. 6303(b)(3) Who can be a perpetrator of child abuse? (i) A perpetrator of child abuse is any person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a child, an individual residing in the same home as a child or a paramour of a child s parent. 23 Pa.C.S (a) How do you report suspected child abuse? (i) Reports of suspected child abuse may be made, in Pennsylvania, to the County CYA in which the abuse occurred or, to ChildLine. ChildLine accepts phone calls 24 hours a day, 7 days a week and trained personnel will provide information, counseling and referral services to ensure that the children of Pennsylvania are safe from child abuse. To report child abuse to ChildLine, call (TDD: ) Source: You may also complete a CY47 form and fax it to the Children and Youth Services office for the county in which the suspected abuse occurred. For a pdf of the CY47 form or to use an online version of the form, go to: Report Suspected Abuse PennStateHershey

3 3 What happens after a report of suspected child abuse is made? (i) After the report of suspected child abuse is made the trained personnel at ChildLine will decide if the report should be turned over to a county agency for investigation, if the report should be turned over directly to local law enforcement, or if the reporter can be referred to local social service organizations including counselors, financial aid assistance, and legal assistance. Source: How are reports investigated? (i) When a report of suspected child abuse is made, the county child welfare agency immediately begins their investigation. The agency first investigates if the child needs to immediately be brought into protective custody by using a safety assessment protocol. If the child needs to be brought into protective custody those measures are taken by the agency. If the child does not need to be brought into protective custody, the agency begins their investigation and sees the child within 24 hours after the report is received. The investigation shall include a determination of the risk of harm to the child or children if they continue to remain in the existing home environment ( risk assessment ), as well as a determination of the nature, extent and cause of any condition enumerated in the report, any action necessary to provide for the safety of the child or children and the taking of photographic identification of the child or children to be maintained with the file. During the investigation, the agency will provide or arrange for the provision of necessary services to protect the child until a determination of child abuse is made. If a serious physical injury is reported or found, the child will undergo a medical examination and other medical tests may be arranged by the agency. 23 Pa.C.S. 6368(a) (Many county agencies refer these medical examinations to a children s resource center, which specializes in child abuse examinations.) (ii) The agency will also seek to investigate if the child is suffering any harm from factors beyond the control of the parent or other person responsible for the welfare of the child and if this is found, the agency will take further action including the coordination of social services for the child and the family, or referral of the family to appropriate agencies for the provision of services. 23 Pa.C.S. 6368(b) How long does it take for a report to be investigated? (i) The county agency s investigation to determine if the report of suspected child abuse is founded, indicated, or unfounded will be completed within 60 days. 23 Pa.C.S. 6368(c) When are mandatory reporters required to report? (i) Certain people, because of their employment, occupation or profession shall report suspected child abuse when they have reasonable cause to suspect on the basis of their medical, professional or other training and experience, that a child coming before them in

4 4 their professional or official capacity is an abused child. 23 Pa.C.S. 6311(a) These persons are known as mandatory reporters. (ii) If the person reporting the suspected child abuse is a mandatory reporter, the report shall be made immediately by telephone and in writing within 48 hours after the oral report. 23 Pa.C.S. 6313(a) Who is a mandatory reporter? (i) A mandatory reporter is a person who is required to report suspected child abuse because of their employment, occupation, or profession and includes, but is not limited to any licensed physician, osteopath, medical examiner, coroner, funeral director, dentist, optometrist, chiropractor, podiatrist, intern, registered nurse, licensed practical nurse, hospital personnel engaged in the admission, examination, care or treatment of persons, Christian Science practitioner, member of the clergy, school administrator, school teacher, school nurse, social services worker, day-care center worker or any other child-care or foster-care worker, mental health professional, peace officer or law enforcement official. 23 Pa.C.S. 6311(b) Are there any exceptions? (i) Yes, an ordained member of the clergy does not have to report suspected child abuse discovered through confidential communications. 42 Pa. C.S Also, confidential communications to an attorney are protected communications and the attorney will not have to report suspected child abuse discovered through confidential communications. 42 Pa. C.S Beyond the ordained clergymen and attorneys, privileged communications between professionals required to report and their patient or client will not allow for the person to fail to report suspected child abuse. 23 Pa.C.S. 6311(a) What does a mandatory reporter do if the child died? (i) If a mandatory reporter has reasonable cause to believe that a child died because they were the abused the mandatory reporter shall report that suspicion to the appropriate coroner who will accept their report and investigate the allegation. The coroner will then make their findings available in a report to the police, the district attorney, the appropriate county agency and, if the report is made by a hospital, the hospital. 23 Pa.C.S In addition to mandatory reporters, who should report suspected child abuse? (i) Any person CAN make a report of suspected child abuse if they have reasonable cause to suspect that a child is an abused child. 23 Pa.C.S Is the reporter s identity ever revealed? (i) With exception of revealing the reporter s identity to law enforcement officials and the district attorney, information about the reporter s identity who made the report of suspected

5 5 child abuse or someone who cooperated with an investigation into suspected child abuse shall be protected unless it is found that the release of the reporter s information will not jeopardize the safety of the reporter. In fact, Law enforcement officials shall treat all reporting sources as confidential informants. 23 Pa.C.S. 6340(c) Will the mandatory reporter know the report s outcome? (i) Generally a reporter does not receive information back from the child welfare agency following his/her report. However, a mandatory reporter of suspected child abuse who made a report about the abuse MAY have limited information released to them including: (a) the final status of the child abuse report following the investigation, whether it be indicated, founded, or unfounded. (b) any services provided, arranged for or to be provided by the county agency to protect the child. 23 Pa.C.S. 6340(a)912)(i)-(ii) (ii) The mandated reporter may contact the county child welfare agency to request information, however, the law specifies that the child welfare agency is required to only release the information listed in subsection (i) and (ii) above. Are reports confidential? (i) Reports related to reporting procedures, written reports, photographs, X-rays taken during investigation of the alleged child abuse and in the possession of the Department of Public Welfare or a county agency shall be confidential. 23 Pa.C.S (ii) Release of information to subject of report.-- At any time and upon written request, a subject of a report may receive a copy of all information, except that prohibited from being disclosed by subsection (c), contained in the Statewide central register or in any report filed pursuant to section 23 Pa.C.S (relating to reporting procedure). (iii) Protecting identity of person making report.-- Except for reports pursuant to subsection (a)(9) and (10), the release of data that would identify the person who made a report of suspected child abuse or the person who cooperated in a subsequent investigation is prohibited unless the secretary finds that the release will not be detrimental to the safety of that person. Law enforcement officials shall treat all reporting sources as confidential informants. 23 Pa.C.S What are the mandatory reporting requirements for mandatory reporters? (i) Oral reports MUST be made to the Pennsylvania Department of Public Welfare by calling ChildLine at Oral reports may also be made the appropriate county agencies. Reports must be made IMMEDIATELY by phone, and then followed by a written report within 24 hours of the oral report of suspected child abuse. Written reports MUST be made to the appropriate county agency on the forms provided by the Department of Public Welfare. 23 Pa. C.S. 6313(a)-(c), 49 Pa. Code Source:

6 How to report suspected child abuse 6 (i) Oral reports are made to the Department of Public Welfare (via ChildLine: ; TDD: ), which accepts phone calls 24 hours a day, 7 days a week. Trained personnel will provide information, counseling and referral services to ensure that the children of Pennsylvania are safe from child abuse. If the suspected child abuse is reported to a county agency, the protective services staff of the agency will attend to the immediate safety of the child and any other children who may be in the same home and then immediately notify the Department of Public Welfare about the report. 23 Pa.C.S. 6313(b) (ii) Written reports from mandatory reporters are made to appropriate county agencies by faxing a Department of Public Welfare CY47 form to the Children and Youth Services office for county in which the suspected abuse occurred. (To use an online version of the CY47 form, or obtain a pdf, go to: Report Suspected Abuse PennStateHershey.) (iii) The CY47 form should include the following information: (a) The names and addresses of the child and the parents or other person responsible for the care of the child if known. (b) Where the suspected abuse occurred. (c) The age and sex of the subjects of the report. (d) The nature and extent of the suspected child abuse, including any evidence of prior abuse to the child or siblings of the child. (e) The name and relationship of the person or persons responsible for causing the suspected abuse, if known, and any evidence of prior abuse by that person or persons. (f) Family composition. (g) The source of the report. (h) The person making the report and where that person can be reached. (i) The actions taken by the reporting source, including the taking of photographs and X-rays, removal or keeping of the child or notifying the medical examiner or coroner. (j) Any other information which the department may require by regulation. 23 Pa.C.S. 6313(c) Can reporters be held liable? (i) If the reporter reported the suspected child abuse in good faith, the reporter will not be held liable. Any personal, hospital, institution, school, facility, agency or agency employee that participates in good faith in the making of a report, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse, the taking of photographs or the removal or keeping of a child and any official or employee of a county agency who refers a report of suspected abuse to law enforcement authorities or provides services shall have immunity from civil and criminal liability 23 Pa.C.S. 6318(a)

7 7 What is the presumption of good faith? (i) A person required to report suspected child abuse and persons who are required to make referrals to law enforcement officers will be presumed to be making those reports in good faith. 23 Pa.C.S. 6318(b) What if a mandatory reporter fails to report suspected child abuse? (i) A mandatory reporter who fails to report suspected child abuse, and who fails to do so willfully has committed a summary offense of the first violation and a misdemeanor of the third degree for a second or subsequent violation. 23 Pa.C.S What if the report of suspected child abuse is unfounded? (i) If the report of suspected child abuse is unfounded, information about the report shall be maintained for a period of one year. Following the expiration of one year after the date the report was received by the department, the report shall be expunged from the pending complaint file 23 Pa.C.S What if the report of suspected child abuse is founded? (i) If the report of suspected child abuse is founded or indicated, information about the report of suspected child abuse shall be expunged immediately from the pending complaint file, and an appropriate entry shall be made in the Statewide central register. Additionally, Notice of the determination must be given to the subjects of the report, other than the abused child, and to the parent or guardian of the affect child or student along with an explanation of the implications of the determination. 23 Pa.C.S What happens if the child goes to the hospital? (i) Children who are believed to be suffering from serious physical or mental abuse may be brought to a hospital. Children appearing to suffer any physical or mental condition which may constitute child abuse shall be admitted to, treated and maintained in facilities of private and public hospitals on the basis of medical need and shall not be refused or deprived in any way of proper medical treatment and care. 23 Pa.C.S. 6316(a) What if the child is a newborn? (i) A newborn taken into protective custody pursuant to section 6315(a)(3) (relating to taking child into protective custody) shall be admitted to, treated and maintained in facilities of public and private hospitals on the basis of medical need and shall not be refused or deprived in any way of proper medical treatment and care. Once a newborn is taken into protective custody pursuant to section 6315(a)(3), the newborn shall be considered immediately eligible for Medicaid for payment of medical services provided. Until otherwise provided by court order, the county agency shall assume the responsibility for making decisions regarding the newborn's medical care. 23 Pa.C.S (a.1)

8 8 Can the child be refused care by the hospital? (i) No. The failure of a hospital to admit and properly treat and care for a child pursuant to subsection (a) or (a.1) shall be cause for the department to order immediate admittance, treatment and care by the hospital which shall be enforceable, if necessary, by the prompt institution of a civil action by the department. The child, through an attorney, shall also have the additional and independent right to seek immediate injunctive relief and institute an appropriate civil action for damages against the hospital. 23 Pa.C.S (b) When can a child be taken into protective custody? (i) A child can be taken into protective custody: (a) Pursuant to an order of the court under this chapter. Prior to entering a protective custody order removing a child from the home of the parent, guardian or custodian, the court must determine that to allow the child to remain in the home is contrary to the welfare of the child. (b) Pursuant to the laws of arrest. (c) By a law enforcement officer or duly authorized officer of the court if there are reasonable grounds to believe that the child is suffering from illness or injury or is in imminent danger from his surroundings, and that his removal is necessary. (d) By a law enforcement officer or duly authorized officer of the court if there are reasonable grounds to believe that the child has run away from his parents, guardian, or other custodian. (e) By a law enforcement officer or duly authorized officer of the court if there are reasonable grounds to believe that the child has violated conditions of his probation. 42 Pa.C.S (ii) In addition, a child may be taken into protective custody: (a) By a physician examining or treating the child or by the director, or a person specifically designated in writing by the director, of any hospital or other medical institution where the child is being treated if protective custody is immediately necessary to protect the child under this chapter. (b) By a physician or the director, or a person specifically designated by the director, of a hospital pursuant to Chapter 65 (relating to newborn protection) if the child is a newborn. 23 Pa.C.S. 6315(2), 23 Pa.C.S (3) How long can a child be held in protective custody? (i) A child can be held in protective custody for no more than 24 hours unless the appropriate county agency is immediately notified that the child has been taken into custody and the county agency obtains an order from a court of competent jurisdiction permitting the child to be held in custody for a longer period. 23 Pa.C.S. 6315(b)

9 9 (ii) Protective custody will not be permitted beyond 72 hours unless there is a informal hearing to determine if protective custody should continue or if it can be determined that the child should be alleged to be a dependent child. It is the responsibility of the county agency to file a petition alleging the child is a dependent child within 48 hours. 23 Pa.C.S. 6315(d) Who is given notice that the child is being held in protective custody? (i) When a child is taken into protective custody within 24 hours notification must be given to the parent, guardian or custodian of the child that informs that person where the child is being held (unless prohibited by court order) and the reasons for why the child needed to be taken into protective custody. Notice will also immediately be given to the appropriate county agency which may have to initiate other proceedings. 23 Pa.C.S. 6315(c) Where is the child held when in protective custody? (i) Children in protective custody may only be held at an appropriate medical facility, foster home or other appropriate facility approved by the department for this purpose. 23 Pa.C.S. 6315(e) Can any information from reports be released? (i) Reports, and the information contained in the reports, will only be made available to: (a) An authorized official of a county agency, of a Federal agency that has a need for such information to carry out its responsibilities under law to protect children from abuse and neglect or of an agency of another state that performs protective services analogous to those services performed by county agencies or the department in the course of the official's duties, multidisciplinary team members assigned to the case and duly authorized persons providing services pursuant to section 6370(a) (relating to voluntary or court-ordered services; findings of child abuse). (b) A physician examining or treating a child or the director or a person specifically designated in writing by the director of any hospital or other medical institution where a child is being treated when the physician or the director or the designee of the director suspects the child of being an abused child or a child alleged to be in need of protection under this chapter. (c) A guardian ad litem or court designated advocate for the child. (d) An authorized official or agent of the department in accordance with department regulations or in accordance with the conduct of a performance audit as authorized by section 6343 (relating to investigating performance of county agency). (e) A court of competent jurisdiction, including a magisterial district judge, a judge of the Philadelphia Municipal Court and a judge of the Pittsburgh Magistrates Court,

10 10 pursuant to court order or subpoena in a criminal matter involving a charge of child abuse under section 6303(b) (relating to definitions). Disclosure through testimony shall be subject to the restrictions of subsection (c). (f) A court of common pleas in connection with any matter involving custody of a child. The department shall provide to the court any reports and files which the court considers relevant. (g) A standing committee of the General Assembly, as specified in section 6384 (relating to legislative oversight). (h) The Attorney General. (i) Federal auditors if required for Federal financial participation in funding of agencies except that Federal auditors may not remove identifiable reports or copies thereof from the department or county agencies. (j) Law enforcement officials of any jurisdiction, as long as the information is relevant in the course of investigating cases of: (i) Homicide or other criminal offense set forth in section 6344(c) (relating to information relating to prospective child-care personnel), sexual abuse, sexual exploitation, serious bodily injury or serious physical injury perpetrated by persons whether or not related to the victim. (ii) Child abuse perpetrated by persons who are not family members. (iii) Repeated physical injury to a child under circumstances which indicate that the child's health, safety or welfare is harmed or threatened. (iv) A missing child report. (k) The district attorney or his designee or other law enforcement official, as set forth in the county protocols for investigative teams required in section 6365(c) (relating to services for prevention, investigation and treatment of child abuse), shall receive, immediately after the county agency has ensured the safety of the child, reports of abuse, either orally or in writing, according to regulations promulgated by the department, from the county agency in which the initial report of suspected child abuse or initial inquiry into the report gives evidence that the abuse is: (i) a criminal offense set forth in section 6344(c), not including an offense under 18 Pa.C.S (relating to endangering welfare of children) or an equivalent crime under Federal law or the law of another state, sexual abuse, sexual exploitation or serious bodily injury perpetrated by persons, whether or not related to the victim; (ii) child abuse perpetrated by persons who are not family members; or

11 11 (iii) serious physical injury involving extensive and severe bruising, burns, broken bones, lacerations, internal bleeding, shaken baby syndrome or choking or an injury that significantly impairs a child's physical functioning, either temporarily or permanently (l) Designated county officials, in reviewing the competence of the county agency or its employees pursuant to this chapter. Officials under this paragraph are limited to the following: (i) The board of commissioners in counties other than counties of the first class. (ii) Mayor in a city of the first class under the act of April 21, 1949 (P.L. 665, No. 155), known as the First Class City Home Rule Act. (iii) An individual serving as a county chief executive as designated by a county home rule charter or optional plan form of government pursuant to the act of April 13, 1972 (P.L. 184, No. 62), known as the Home Rule Charter and Optional Plans Law. (m) A mandated reporter of suspected child abuse as defined in section 6311 (relating to persons required to report suspected child abuse) who made a report of abuse involving the subject child, but the information permitted to be released to the mandated reporter shall be limited to the following: (i) The final status of the child abuse report following the investigation, whether it be indicated, founded or unfounded. (ii) Any services provided, arranged for or to be provided by the county agency to protect the child. (n) Persons required to make reports under Subchapter C.1 (relating to students in public and private schools). Information under this paragraph shall be limited to the final status of the report following the investigation as to whether the report is indicated, founded or unfounded. (o) A prospective adoptive parent, approved by an adoption agency, when considering adopting an abused child in the custody of a county agency. The county agency having custody of the child and the adoption agency shall determine the scope and detail of information which must be provided so that the prospective parent may make an informed decision to adopt. (p) Appropriate officials of another county or state regarding an investigation related to child abuse or protective services when a family has moved to that county or state. Reports under this paragraph shall include general protective service reports and

12 12 related information. Reports and information under this paragraph shall be provided within seven calendar days. The department shall promulgate regulations as necessary to carry out the purposes of this paragraph. (q) Members of citizen review panels convened pursuant to section (relating to citizen review panels), provided that such members shall not disclose to any person or government official any identifying information about any specific child protective services case with respect to which the panel is provided information. (r) A member of a child fatality or near fatality review team under section 6365(d).