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The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.
This article provides an overview of the Child Abuse and Neglect Reporting Act (CANRA) and discusses the mandatory reporting obligations for psychotherapists.
Originally published January/February 2014 Ann Tran-Lien, JD, Managing Director of Legal Affairs Revised November, 2022 by Luke M. Martin, MBA, JD (CAMFT Staff Attorney)
The intent and purpose of the Child Abuse and Neglect Reporting Act (“CANRA”) (California Penal Code Sections 11164-11174.3) is to protect children from abuse and neglect. Licensed therapists, associates, and trainees in California, among others, are “mandated reporters” when they, in their professional capacity or within their scope of employment, have “reasonable suspicion” of child abuse or neglect, as defined in CANRA. This article discusses the CANRA definitions and terms you should know, and your obligations as required by this law.
Definitions
“Child”
CANRA defines a child as a person under 18 years of age.1 Accordingly, past abuse or neglect of an adult (18 years of age or older) at the time of disclosure does not warrant a suspected child abuse report. However, past abuse or neglect of an alleged victim who is still under the age of 18 would call for a mandatory report, even if you are provided with information that a report has already been made sometime in the past. The law does not provide an exemption for mandated reporters from making a report if they have knowledge or are given information that a report has been filed in the past.
In addition, if you have reasonable suspicion that the alleged perpetrator is currently abusing children or has abused a child who is still under the age of 18, you must make a report. Access to children by the alleged perpetrator should not, in and of itself, constitute reasonable suspicion of child abuse. Consider the facts and surrounding circumstances to determine if you reasonably suspect abuse or neglect of children by the alleged perpetrator. This particular issue is complicated; if you find yourself confused about whether to make a report, we recommend calling CAMFT to speak with the Legal Department for further guidance.
It is also important to remember that the law does not limit reporting reasonable suspicion of abuse or neglect of children only residing in California.
“Reasonable Suspicion” CANRA requires that you make a report when you have “reasonable suspicion” of child abuse or neglect. CANRA provides that “reasonable suspicion" means “that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect.”2 The law also states that “reasonable suspicion” does not require certainty that child abuse or neglect has occurred nor does it require a specific medical indication of child abuse or neglect. Meaning, you are not expected to know all the facts to be true or be 100 percent sure that abuse or neglect occurred—any reasonable suspicion is sufficient to mandate a report.
“Child Abuse” For purposes of mandatory reporting, CANRA defines “child abuse” as the following:
“Physical Injury or Death” Unless it was an accident, physical injury or death inflicted upon a child by another person warrants a mandatory report. Physical injury usually occurs when a person is frustrated or angry and hits, shakes, or throws a child. A mutual affray between minors does not fall under the definition of “child abuse or neglect.” When you have a situation where a child was physically injured by another child, the key question is whether the incident was a mutual affray. Some questions to consider include: Was the physical injury a result of bullying? Was one being victimized while the other is clearly the aggressor? Is there a large difference between the maturational and chronological age of the minors?6 When minors are siblings and are fighting at home, an issue to consider is whether parents or caregivers are absent for long periods of time or present but fail to stop the fighting. This may indicate inadequate supervision, which is a form of neglect that warrants a mandatory report. The topic of neglect is discussed later in this article.
Note that injuries caused by reasonable and necessary force used by a peace officer acting within the course and scope of his or her employment as a peace officer does not constitute physical injury under CANRA.
“Sexual Abuse” Sexual abuse is separated into two categories: sexual assault and sexual exploitation. Sexual assault includes, but is not limited to, rape, statutory rape (certain instances), rape in concert, incest, sodomy, lewd or lascivious acts upon a child, oral copulation, sexual penetration, or child molestation.7
Sexual abuse also includes the intentional touching of genitals and intimate parts of a child by the perpetrator or of the perpetrator by the child for purposes of sexual arousal or gratification.8 Also, intentional masturbation of the perpetrator in a child’s presence also falls under the definition of sexual abuse.9
With the enactment of Assembly Bill 1145 in 2020, for purposes of CANRA, “sexual assault” does not include certain voluntary sexual acts between consenting minors, including voluntary sodomy, oral copulation, or sexual penetration, if there are no indicators of abuse unless that conduct is between a person who is 21 years of age or older and a minor who is under 16 years of age.
Nonconsensual sexual activity and incest (even if consensual) involving minors always warrant a mandatory report. In addition, certain instances of consensual sexual activity involving minors and statutory rape are reportable.10 Pregnancy of a minor should not, in and of itself constitute a basis for reasonable suspicion of sexual abuse. You should look at other factors, such as consent and age, to determine whether or not a report should be made.
Sexual Exploitation generally includes activities related to child pornography, depictions of minors engaged in obscene conduct, and encouragement of child prostitution. Sexual exploitation falls into three different categories.11 The first category of sexual exploitation is conduct involving matter depicting a minor engaged in obscene acts. This would include situations in which the alleged perpetrator prepares, sells or distributes matter depicting a minor engaged in obscene acts. Obscene acts consist of nudity, erotic poses or sexual activity.
The second category of sexual exploitation involves any person who knowingly promotes, aids, or assists, employs, uses, persuades, induces, or coerces a child to engage in prostitution or a live performance involving obscene sexual conduct, or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, painting, or other pictorial depiction, involving obscene sexual conduct.
The third category of sexual exploitation includes situations in which a person depicts a child in, or who knowingly develops, duplicates, prints, downloads, streams, accesses through any electronic or digital media, or exchanges, a film, photograph, videotape, video recording, negative, or slide in which a child is engaged in an act of obscene sexual conduct, except for those activities by law enforcement and prosecution agencies and other persons described in subdivisions (c) and (e) of Section 311.3.
“The Willful Harming of a Child or the Endangering of the Person or Health of a Child” Willful harming of a child includes situations in which a person willfully causes or permits any child to suffer, or inflict upon the child unjustifiable physical pain or mental suffering. Under this definition, if a person willfully causes or allows a child to suffer unjustifiable mental suffering, it should be reported. This should be distinguished from a child suffering serious emotional damage, which does not warrant a mandatory report, but may be reported at the discretion of the mandated reporter. The law defines “serious emotional damage” as being or behavior, including, but not limited to, severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others.12
In suspected instances of emotional suffering, you should exercise your professional judgment and determine if the emotional damage amounts to unjustifiable mental suffering. Consistent extreme and outrageous behavior toward a child who suffers emotional damage, such as daily, constant verbal abuse may be indicative of unjustifiable mental suffering, which would call for a mandatory report.
Additionally, any person who cares for or has custody of a child, and 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 warrants a mandatory report.
“Unlawful Corporal Punishment or Injury” Unlawful corporal punishment or injury involves a situation where a person willfully inflicts upon any child cruel or inhuman corporal punishment or injury resulting in a traumatic condition.13 What does “traumatic condition” mean? This section of the law does not specifically define “traumatic condition.” For guidance, another section in the Penal Code states that, “traumatic condition” means a condition of the body, such as a wound, or external or internal injury.”14 Therefore, if a child describes punishment that results in a visible red mark, a scar, a bruise or some other internal or external condition, it should be reported as unlawful corporal punishment.
Situations involving an employee of a public school using reasonable and necessary force to stop a disturbance threatening physical injury to a person or damage to property, for self-defense, or to obtain possession of weapons or other dangerous objects within the control of the student do not warrant a report. In addition, situations in which a teacher, vice principal, principal, or any other certificated employee of a school district, during the performance of his duties, uses the same degree of physical control over a student that a parent would be legally privileged to exercise to basically maintain order are not reportable.15
“Neglect” Neglect means the negligent treatment or the maltreatment of a child by a person responsible for the child’s welfare under circumstances indicating harm or threatened harm to the child’s health or welfare. Neglect includes both acts and omissions on the part of the responsible person. The law recognizes two forms of neglect: severe neglect and general neglect.16
Severe neglect means the negligent failure of a person having the care or custody of a child to protect the child from severe malnutrition or medically diagnosed nonorganic failure to thrive. Severe neglect also includes situations where any person having the care or custody of a child willfully causes or permits the person or health of the child to be placed in a situation such that his or her person or health is endangered, including the intentional failure to provide adequate food, clothing, shelter, or medical care.17
General neglect means the negligent failure of a person having the care or custody of a child to provide adequate food, clothing, shelter, medical care, or supervision where no physical injury to the child has occurred.
Some signs of neglect may include a child who lacks medical or dental care, is dirty or demonstrates poor hygiene, is left home without supervision or care, or is not allowed back into the home for any reason and is left without shelter. Neglect may also be present when parents or caregivers are abusing alcohol or drugs and are unable to provide their children with the proper supervision or care.
The use of alcohol or drugs by a parent or caregiver, in and of itself, should not constitute reasonable suspicion of neglect. You should consider whether the alcohol or drug use impacts, in any way, the care for and supervision of the minor. For example, a parent who drinks a glass of wine may be able to adequately care for a minor child, but a parent who is completely intoxicated may lack the ability to do so.
The law states a child receiving treatment by spiritual means or not receiving specified medical treatment for religious reasons, should not, for that reason alone, be considered a neglected child. In addition, neglect does not include situations in which parents or guardians make an informed and appropriate medical decision after consultation with a physician(s) who has examined the minor.
Professional Capacity You are only mandated to file a report when you have knowledge of, or reasonably suspect, a child has been a victim of child abuse or neglect when you are acting within your professional capacity or within the scope of your employment. Therefore, if you are wearing your therapist hat and your client informs you her neighbor has been physically abusing his child, you are mandated to report if you reasonably suspect a child is being abused based on the information provided by your client. The law does not require you to investigate or know for certain child abuse has occurred. Hearsay may be sufficient to constitute reasonable suspicion. On the contrary, if you observe child abuse or neglect in your private capacity, for instance, while you are having lunch with your friends, you are not required to make a report. If you choose to make a report based on information obtained in your private capacity, you may opt to report anonymously.18
Making the Report If you reasonably suspect child abuse or neglect, while in your professional capacity, you are required to make an initial report by telephone to a child protective services agency (CPS) or law enforcement agency immediately or as soon as practicably possible. You are also required to send, fax, or electronically transmit a written follow-up report within 36 hours of receiving the information concerning the incident.19
By law, the agency must take the report from you, even if it lacks jurisdiction. The only time the agency can refuse to take a report is if it can immediately electronically transfer you, while still on the phone, to an agency that has proper jurisdiction over the matter.20 CPS or law enforcement agents should not require you to hang up and call another agency for any reason, including because the alleged incident occurred outside of the home, or because it occurred in another state. The agency is legally required to take the report and transfer the report to the agency that has proper jurisdiction.
Unfortunately, not all CPS and law enforcement agents are properly trained or entirely knowledgeable about CANRA. Some agents may even tell you what you are calling about does not constitute child abuse or neglect. If you attempt to make a report with a particular agency and are informed the report will not be taken due to lack of jurisdiction or for any other reason, it is recommended you cite the law and inform the agent he or she must legally take the report. If you are refused, ask to speak to a supervisor. If you cannot speak to a supervisor or if the supervisor also refuses to take the report, you should immediately or as soon as it is practicably possible, fax or electronically transmit an automated written report. If you file this automated written report, you are not required to submit a written follow- up report.21 Note that the law requires the Department of Justice to prescribe and make available this automated written report form, but no such form currently exists. Thus, to substantially comply with the law, you should fax or electronically submit to the agency the standard written follow-up report, with a cover letter indicating your reasons why the initial telephone call was not able to be completed.
Joint Knowledge When two or more mandated reporters jointly have knowledge of a known or suspected instance of child abuse or neglect, the mandated reporters may mutually agree and choose one amongst themselves to make the initial telephone report and the written follow-up report. For instance, if you and your supervisor reasonably suspect child abuse, you may agree to have your supervisor make the telephone report and the written follow-up report. You should document that your supervisor made the report per mutual agreement. If you come to learn your supervisor failed to file the report, you must follow through with your own reporting obligations.22
This provision only applies to joint knowledge of known or suspected child abuse or neglect amongst mandated reporters. The law does not intend for a mandated reporter to be relieved of his or her reporting obligations if a client or any other individual decides to make a report. If your client informs you that he or she already made a report, or decides to make a report in your presence or later on their own, you must still file a report if you reasonably suspect child abuse or neglect.
Employer Cannot Impede or Inhibit Your Reporting Duties You are responsible for understanding CANRA and making reports as required by law. Supervisors, administrators, and employers may not impede or inhibit your reporting duties and may not take any adverse action against you for making a suspected child abuse report.23 Nonetheless, employers and supervisors may set up guidelines and procedures on how to make reports and ask that you apprise them of reports, but the procedures may not be inconsistent with the law. Hence, a supervisor cannot bar you from making a report when you have reasonable suspicion of child abuse or neglect but may ask you to consult with him or her before making a report, if it is within the specified time limits allowed by CANRA.
Also, reporting the information regarding incident of suspected child abuse or neglect to an employer, supervisor, coworker or any other person does not relieve you of your duty to file a mandated report, unless there is joint knowledge and mutual agreement that only one mandated reporter files the report, as discussed above.
The Report Suspected child abuse reports must always include the following information:
If known, the following information must also be included:
Keep in mind a report must still be made even if some of the above information regarding the child, parents, or perpetrator is unknown or is uncertain. You are not required to investigate further. A CPS or law enforcement agent must take the report and internally, determine if the report lacks enough information to investigate or is “unfounded.”
Confidentiality of the Report Filed suspected child abuse reports are confidential and may only be released to certain individuals and entities as specified in CANRA.25 These individuals and entities include, but are not limited to, CPS agencies, law enforcement agencies, court-appointed minor’s counsels, the Department of Justice, licensed adoption agencies, and coroners and medical examiners when conducting a postmortem examination of a child. In a recent court decision, Cuff v. Grossmont Union High School District et al.26, the Court of Appeal held a school counselor was not immune from liability under CANRA for releasing a copy of the suspected child abuse report to a parent. In the Cuff case, two minor boys told their school counselor they were being verbally and physically abused by their mother, Tina Cuff. As a mandated reporter, the school counselor duly filed a suspected child abuse report. The school counselor then gave a copy of the report to the father and told him he should go to law enforcement to have his sons taken into protective custody. Instead, the father used the report to apply for a protective order against Cuff and to seek custody of the two boys. Cuff then sued the school counselor and Grossmont for invasion of privacy based on violation of CANRA, which states a suspected child abuse report could only be disclosed to entities specifically identified in the law. The trial court found the school counselor and Grossmont were immune from liability for releasing the report to the father. However, the court of appeal reversed and remanded, and concluded the school counselor was not immune under CANRA and can be sued for releasing the report to an unauthorized individual. The court noted CANRA provides immunity to a mandated reporter for the act of making a suspected child abuse report as required or authorized by the law, but does not offer immunity to a mandated reporter who breaches the confidentiality provisions of the law.
Accordingly, suspected child abuse reports should not be released to clients, parents, other health care providers, legal guardians, or any individual or entity not authorized by CANRA. You should keep suspected child abuse reports separate from clients’ files and in their own confidential file. As provided by law and indicated in the Cuff case, you may be found civilly ($500 fine) or criminally (a misdemeanor) liable, or both, for violating the confidentiality provisions as discussed above.
Protection of a Mandated Reporter’s Identity The law requires that the identity of all mandated reporters must be kept confidential, and only disclosed to the following:
The information may be disclosed when the mandated reporter has waived confidentiality or by a court order.
The identity of the mandated reporter may not be disclosed to the individual’s employer, except with the mandated reporter’s consent or by court order. Additionally, a representative of a CPS agency performing an investigation that results from a suspected child abuse report made by a mandated reporter, must advise the alleged perpetrator of the complaint made against him or her, but in a manner that is consistent with the law protecting the identity of the mandated reporter.28
Unfortunately, not all CPS and/or law enforcement agencies have followed the law on this important matter. Thus, it is recommended that when you are making a suspected child abuse or neglect report, you inform the CPS or law enforcement agencies of any safety concerns you may have, cite the above- mentioned law, and insist that your confidentiality be protected.
Immunity from Liability The law protects mandated reporters from being civilly or criminally liable for making a required or authorized child abuse report, even if the report was made outside of their professional capacity or employment.29 This means that if you know or reasonably suspect child abuse and you make a report, you cannot be sued, nor can charges be pressed against you in a court of law. Thus, even if CPS or law enforcement agency investigates and finds no abuse or neglect, you cannot be held liable. On the other hand, any other person, not a mandated reporter, making a known or suspected child abuse report will not be afforded immunity if he or she knew the report was false or recklessly disregarded the truth or falsity of the report.
There are also liability risks if you fail to make a mandatory child abuse report as required by CANRA.
A mandated reporter who fails to make a suspected child abuse report may be guilty of a misdemeanor or required to pay a fine of one thousand dollars, or both.30 The BBS may also act against your license or registration for failing to make a suspected child abuse report.
In conclusion, reviewing CANRA periodically to ensure you are familiar with the provisions is prudent practice. You should always document any actions and decisions you have made when faced with a suspected child abuse issue in your professional capacity and seek clinical and legal consultations when in doubt.
Endnotes 1 Cal. Penal Code § 11165 2 Cal. Penal Code 11166(a)(1) 3 Cal. Penal Code 11165.6 4 Cal. Penal Code 11165.1 5 Cal. Penal Code 11165.2 6 Cal. Penal Code 11165.6 7 Cal. Penal Code 11165.1(a) 8 Cal. Penal Code 11165.1(b)(4) 9 Cal. Penal Code 11165.1(b)(5) 10 For further reading on mandatory reporting concerning consensual sexual activity involving minors, see Reporting Consensual Activity Between Minors: The Confusion Unraveled, Cathy Atkins, JD, The Therapist 11 Cal. Penal Code 11165.1(c) 12 Cal. Penal Code 11166.05 13 Cal. Penal Code 11165.4 14 Cal. Penal Code 273.5 15 Cal. Penal Code 11165.4 16 Cal. Penal Code 11165.2 17 Cal. Penal Code 11165.2 18 Cal. Penal Code 11167(f) 19 Cal. Penal Code 11166(a) 20 Cal. Penal Code 11165.9 21 Cal. Penal Code 11166 (b) 22 Cal. Penal Code 11166(h) 23 Cal. Penal Code 11166(i)1 24 Cal. Penal Code 11167(a) 25 Cal. Penal Code 11167.5 26 Cuff v. Grossmont Union High School Dist. (2013) 221 Cal.App.4th 582 [164 Cal.Rptr.3d 487] 27 Cal. Penal Code 11167(d) 28 Cal. Penal Code 11167(e) 29 Cal. Penal Code 11172 30 Cal. Penal Code 11166(c)