The Therapist
November/December 2007

Updated June 2012 by Sara Kashing, J.D., Staff Attorney

Does this sound familiar?
During a session with your 14-year-old client you learn information that leads you to believe she is a victim of child abuse. As a well trained therapist, you call Child Protective Services (“CPS”) after the session to report the abuse and are told… “Ohhh, sorry we’re not the agency you’re supposed to call” or “That doesn’t really sound like child abuse to me so we’re not going to take the report.”

Situations such as these can leave you confused and in a quandary as to whether you have fulfilled your duty as a mandated reporter. If you learn about child abuse, elder abuse or dependant adult abuse in your professional capacity, you are a mandated reporter. This means you must make a report if you have a reasonable suspicion that abuse has occurred. Your duty is not discharged simply because someone on the other end of the line tells you that it isn’t their jurisdiction or that your facts don’t sound like something they will investigate. Is there any record that you attempted to make a report? Unlikely.

Generally speaking, law enforcement, CPS, Department of Children and Family Services (“DCFS”), and Adult Protective Services (“APS”) workers are not all equally trained in California law, and the mandated reporting requirements. Not every worker is knowledgeable about the reporting requirements and for your own protection you need to be knowledgeable about and rely on your own understanding of the law and not the person on the other end of the line. Further, you should consult with CAMFT, supervisors, or others in cases of uncertainty.

Child Abuse Reporting
California law states that if a mandated reporter, in his or her professional capacity, has knowledge of or observes a child who the mandated reporter knows or reasonably suspects has been the victim of child abuse, he/ she shall make a report (even if only minimal information is known)¹ to any police department, sheriff ’s department, or the county welfare department aka CPS. ^{2, 3}

The law further states that any police department, sheriff ’s department, or CPS, regardless of whether they have jurisdiction over the matter, shall accept a report of the suspected child abuse from the mandated reporter unless the agency can immediately transfer the call to an agency with proper jurisdiction.⁴ Moreover, the law continues to state that those same agencies may not refuse to accept a report of suspected child abuse.⁵

So, what about the situations where CPS or law enforcement refuses to take the telephone report?
Remember, California law states that: 1) the mandated reporter must make an initial report to CPS or law enforcement immediately, or as soon as is practicably possible by telephone; and, 2) the mandated reporter shall then send a follow-up report within 36 hours of receiving the information. However, the law also states that if “after reasonable efforts a mandated reporter is unable to submit an initial report by telephone,” he/ she shall instead fax a one time automated written report.⁶ Therefore, in the situation where CPS or law enforcement refuses to take the report, for whatever reason, you can simply hang up the phone and make a faxed report instead (see websites below). Indicate on your form that you indeed attempted to make a telephone report.

It is unfortunate that some CPS and law enforcement workers aren’t fully knowledgeable about the California mandatory reporting requirements. Remember, a mandated reporter who fails to report child abuse is guilty of a misdemeanor punishable by up to six months confinement and/or a fine of $1,000.⁷ Moreover, a mandated reporter who willfully fails to report child abuse, and that abuse results in death or great bodily injury, is punishable by up to one year confinement and/or a fine of $5,000.8 Keep in mind, just because the CPS worker on the other end of the line inappropriately says “ehhhh, that doesn’t sound like abuse to me” doesn’t mean your duty is eliminated. Rely on your own instincts, consult with others when it is questionable, and document your decision making.

• To make a report by phone, the following web site will give you a listing of child abuse reporting hotlines: www.dss.cahwnet.gov/cdssweb/PG20.htm.
• The form to use if faxing your report can be accessed through this website: www. caag.state.ca.us/childabuse/pdf/ss_8572. pdf.

Elder and Dependant Adult Abuse Reporting
California law states that if a mandated reporter, ⁹ in his or her professional capacity, has knowledge of or observes an elder, or dependant adult, who the mandated reporter knows or reasonably suspects has been the victim of abuse, he/she shall make an abuse report. However, elder and dependant adult abuse reporting requirements have some variation as compared to child abuse reporting. Upon learning of elder or dependant adult abuse, California law states that a mandated reporter must: 1) make an initial report immediately, or as soon as is practicably possible by telephone; and, 2) make a follow-up written report within two working days.^{10 11}Moreover, the venue that the report is sent is as follows:

1. If the abuse has occurred in a long-term care facility, except a state mental health hospital or a state developmental center, the report shall be made to the local ombudsperson or the local law enforcement agency;
2. If the suspected or alleged abuse occurred in a state mental hospital or a state developmental center, the report shall be made to designated investigators of the State Department of Mental Health or the State Department of Developmental Services, or to the local law enforcement agency;
3. If the abuse has occurred any place other than one described in subparagraph (A), the report shall be made to the adult protective services agency (“APS”) or the local law enforcement agency. ¹²

Sadly, the elder and dependant adult reporting law is silent as to what a mandated reporter is to do if the contacted agency refuses to take the report. But, like child abuse, the failure to report elder or dependant adult abuse is a misdemeanor, punishable by up to six months in jail and/or $1,000 (and the same increased penalties if that victim dies.)13 Therefore, even though the law is silent, it would be in your best interests, and that of your license, to go with your gut reaction and if your report is refused over the phone, simply hang up and fax in a follow-up report to the local law enforcement agency to be cautious. Again, document your attempt.

• To make a report by phone, the Attorney General has issued a toll-free number which should connect you to the appropriate agency: 1 (800) 722-0432.
• The form to use when faxing in your elder or dependant adult abuse report can be accessed through the link: www.cdss.ca.gov/cdssweb/entres/forms/English/SOC341A.pdf.

Remember, just because a CPS or APS worker may not know the law, doesn’t mean you don’t have to.

Catherine L. Atkins, J.D., is a Staff Attorney at CAMFT. Cathy is available to answer members’ questions regarding business, legal, and ethical issues.

References:
1  CA Penal Code § 1167
2  CA Penal Code § 1166
3  County Welfare Department is synonymous with CPS
4  CA Penal Code § 1165.9
5  CA Penal Code § 1165.9
6  CA Penal Code § 1166
7  CA Penal Code § 1166
8  CA Penal Code § 1166.01
9  CA Welfare & Institutions Code § 15610.37
10 Note “two working day versus the chid abuse requirement of 36 hours
11 CA Welfare & Institutions Code § 15630
12 Id.
13 Id.

This article appeared in the November/December 2007 issue of The Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. This article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such an article as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained in this article.