By Bonnie Benitez, JD (former CAMFT Staff Attorney)
The Therapist
January/February 2004
Reviewed October 2015 by Anastasia Johnson, JD (former CAMFT Staff Attorney)

Therapists in California are mandated to report known or suspected instances of child abuse or neglect, as defined in the Child Abuse and Neglect Reporting Act (CANRA). CANRA defines a “child” as a person under the age of 18 years. (Penal Code §11165). Unlike the elder abuse reporting laws, which requires the reporting of elder abuse only with regard to elders who reside in the State, CANRA does not limit child abuse or neglect reporting to children who reside in California. (Penal Code §11165.9, Welfare and Institutions Code §15610.27 and §15630). This creates a duty, on the part of mandated reporters, to report child abuse regardless of the location of the child, or the location of the alleged abuse.

This duty begs the question, should a mandated reporter report child abuse that took place in Texas, for example, to the appropriate authorities in the Lone Star State? What if the abuse took place in, or the child resides in, another country? Fortunately, in 2000, the legislature made clear that any of the named agencies that accept child abuse reports in California must also accept reports of known or suspected child abuse that has occurred in a different geographical location.

Penal Code section 11165.9 reads as follows:
“Reports of suspected child abuse or neglect shall be made by mandated reporters, or in the case of reports pursuant to Section 11166.05, may be made, to any police department or sheriff's department, not including a school district police or security department, county probation department, if designated by the county to receive mandated reports, or the county welfare department. Any of those agencies shall accept a report of suspected child abuse or neglect whether offered by a mandated reporter or another person, or referred by another agency, even if the agency to whom the report is being made lacks subject matter or geographical jurisdiction to investigate the reported case, unless the agency can immediately electronically transfer the call to an agency with proper jurisdiction. When an agency takes a report about a case of suspected child abuse or neglect in which that agency lacks jurisdiction, the agency shall immediately refer the case by telephone, fax, or electronic transmission to an agency with proper jurisdiction” (emphasis added). Agencies that are required to receive reports of suspected child abuse or neglect may not refuse to accept a report of suspected child abuse or neglect from a mandated reporter or another person unless otherwise authorized pursuant to this section, and shall maintain a record of all reports received.

What if a therapist, with knowledge or reasonable suspicion of child abuse in another jurisdiction, chose to make a child abuse report in another state or country despite the requirements imposed upon California agencies that receive child abuse reports? Would such a report be permitted? Would such a report act to expedite the protection of a child or children in that jurisdiction?

Therapists should be mindful that CANRA creates an exception to what would otherwise be confidential information. CANRA both defines child abuse, and sets forth when, how and to whom reports of child abuse or neglect are to be made. It states specifically “a mandated reporter shall make a report to an agency specified in Section 11165.9” whenever a report is required by law. In doing so, CANRA makes clear that reporting child abuse to any agency not named in the statute fails to satisfy the duty to report and would therefore be a breach of confidentiality for those persons who must otherwise maintain confidentiality for their patients. A therapist who reports child abuse to an agency outside of California would not only be breaching the confidentiality of his/her patient, but would also have failed to comply with the mandatory reporting law and may be found guilty of a crime.

Section 11165.9 also makes clear that agencies that accept child abuse reports must also accept reports even if they lack the jurisdiction to act upon those reports.

This requirement applies not only to those agencies that lack the geographical jurisdiction, as is the case when the abuse has occurred in another county, state or country, but it also requires such agencies to accept reports in cases where they are not the appropriate investigating agency. For example, child welfare, or child protective services agencies typically have the jurisdiction to investigate child abuse that has taken place in the child’s home, whereas a police or sheriff’s department is responsible for investigating child abuse that takes place outside of the home. However, the law states that it is the responsibility of the agency that receives the child abuse or neglect report to refer the report to the appropriate investigating agency. This mandate may come as a surprise to those therapists who have attempted to report out-of-home abuse to a child protective services agency, only to be told that they would not receive the report and the therapist should call local law enforcement. Although one could certainly choose to file such a report with local law enforcement, it is important to know that any of the agencies that accept child abuse and neglect reports generally must also accept reports that are outside of their jurisdiction to investigate. For example, the rape of a minor by an unknown assailant would be investigated by local law enforcement, not the local child protective services agency. However, should the rape be reported to the local child protective services agency, it is their responsibility to immediately refer the case to the appropriate investigating agency.

As a mandated reporter, you should be sure to know which agencies in your jurisdiction receive child abuse reports, and how to contact them. But also, be confident in knowing that those agencies that receive child abuse reports also have the responsibility to refer cases to other agencies when they do not have the jurisdiction to investigate them. CAMFT members are encouraged to call CAMFT whenever they have questions regarding their mandated reporting obligations.