REPORTING CHILD ABUSE AND ELDER ABUSE Safe Church
REPORTING CHILD ABUSE AND ELDER ABUSE Safe Church Practices - Training for Presbyterian Ministers, Elders, Deacons, and Volunteers - 2018
Presentation Outline Some context and a couple of success stories to get us going! 1. What does the Reporting Act require? 2. Who are mandated reporters? 3. What is the definition of “child abuse”? 4. What is “reasonable suspicion”? 5. How do you report suspected child abuse? 6. What is your liability for failing to report? 7. What is your immunity for reporting? 8. How do you comply with the Act while still following church personnel policies/procedures?
CHILD ABUSE AND NEGLECT REPORTING ACT (CANRA)
From 2008 - 2014 n n the number of referrals to child protective service agencies has increased by 8. 3 percent overall rates of actual child victimization declined by 3. 3 percent during the same period.
Personal Stories Mike and his bike Josh and his three kids
1. WHAT DOES THE CHILD ABUSE REPORTING ACT REQUIRE? n n Penal Code § 11166(a) “A mandated reporter shall make a report to an agency specified in Section 11165. 9 whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. ”
2. WHO ARE MANDATED REPORTERS? n n Under California Penal Code section 11167. 5, the list of mandated reporters is extensive. Clergy Members are included in the list of mandated reporters under California law per Penal Code § 11165. 7(a)(32).
CLERGY MEMBERS n n “Clergy member" means a priest, minister, rabbi, religious practitioner, or similar functionary of a church, temple, or recognized denomination or organization. “Clergy” also includes any “custodian of records for clergy, ” which under Presbyterian rules means the Clerk of Session. q See Appendix A to Policy 20 A, San Jose Presbytery, Sexual Misconduct Prevention and Mandated Reporting Policy, November 21, 2009
Other Mandated Reporters in the Church Context n Other mandated reporters include: q q q n Paid public or private school teachers Paid day care workers, and Paid employees of public or private youth programs This includes anyone your church pays to work with children or youth
Recent Additions to the List of Mandated Reporters n n n An employee or administrator of a public or private postsecondary institution, whose duties bring the administrator or employee into contact with children on a regular basis, or who supervises those whose duties bring the administrator or employee into contact with children on a regular basis. An athletic coach, athletic administrator, or athletic director employed by any public or private school that provides any combination of instruction for kindergarten, or grades 1 to 12. Any athletic coach, assistant coach, or graduate assistant involved in coaching at a public or private post-secondary institution. Commercial computer technicians. Commercial photograph processors or computer-generated image processors.
In General, Volunteers are NOT Mandated Reporters n n n “Volunteers of public or private organizations whose duties require direct contact with and supervision of children are not mandated reporters but are encouraged to obtain training in the identification and reporting of child abuse and neglect and are further encouraged to report known or suspected instances of child abuse or neglect. . ” Cal. Penal Code section 11165. 6(b) However. . .
Presbyterian Church Book of Order n n In the Presbyterian Church, mandated reporters of child abuse include: q Pastors, q Elders, and q Deacons (who are collectively referred to as “ordered ministries” in G-2. 0102)
G-4. 0302 – Mandatory Reporting n “Any member of this church engaged in ordered ministry and any certified Christian educator employed by this church or its congregations, shall report to ecclesiastical authorities and civil legal authorities knowledge of harm, related to the physical abuse, neglect, and/or sexual molestation or abuse of a minor or an adult who lacks mental capacity when (1) such information is gained outside of a confidential communication as defined in G-4. 0301, (2) she or he is bound by an obligation of privileged communication under law, or (3) she or he reasonably believes that there is a risk of future physical harm or abuse. ”
Comment n California reporting law is STRICTER than Presbyterian reporting law. q q California law requires a report of suspected child abuse even if the mandated reporter does not believe there is a risk of future harm. California law requires a report if there is reasonable suspicion of child abuse, not necessarily actual knowledge.
Confidential Communication G-4. 0301 n “In the exercise of pastoral care, teaching elders (also called ministers of the Word and Sacrament) and ruling elders who have been commissioned by a presbytery to limited pastor service (G-2. 10), shall maintain a relationship of trust and confidentiality, and shall hold in confidence all information revealed to them in the course of providing care and all information relating to the exercise of such care. ”
When might an elder reveal confidential information? n n “When the person whose confidences are at issue gives express consent to reveal confidential information, then a teaching elder or a ruling elder commissioned to pastoral service may, but cannot be compelled to, reveal confidential information. ” “A teaching elder or a ruling elder commissioned to pastoral service may reveal confidential information when she or he reasonably believes that there is risk of imminent bodily harm to any person. ”
Comment on Confidentiality n n The “confidential” communication exception to reporting under Presbyterian law only applies to (1) pastors and (2) those few elders commissioned to pastoral service (not deacons & most elders). The confidential communication exception to reporting under Presbyterian law CONFLICTS with California law because: q California limits the clergy privilege to penitential communications, not counseling communications.
Exception for Penitential Communications n n California Penal Code section 11166, subd. (d)(1) “A clergy member who acquires knowledge or a reasonable suspicion of child abuse or neglect during a penitential communication is not subject to subdivision (a). For the purposes of this subdivision, "penitential communication" means a communication, intended to be in confidence, including, but not limited to, a sacramental confession, made to a clergy member who, in the course of the discipline or practice of his or her church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret. ”
3. What is Child Abuse? Four Categories n 1. Physical Abuse – § 11165. 3, 11165. 4 n n n Unlawful Corporal Punishment Or Injury Willful Harming or Injuring of a Child, Unjustifiable Physical Pain, or Endangering 2. Physical Neglect – § 11165. 2 n n Severe Neglect – malnutrition, failure to thrive General Neglect – food, clothing, shelter, medical care, supervision
What About Spanking? n California law permits a parent to administer reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury. q q Welfare and Institutions Code section 300, subdivision (a) See Gonzalez v. Santa Clara County Department of Social Services (2013) 223 Cal. App. 4 th 74 21
What is Child Abuse? (continued) n 3. Sexual Abuse - § 11165. 1 n n n Sexual Assault – any sexual touching Sexual Exploitation – pornography, commercially sexually exploited youth 4. Emotional Abuse - § 11165. 3 n n Unjustifiable Mental Suffering Exposure to serious domestic violence
New Law Effective 1 -1 -2016 Commercially Sexually Exploited n SB 794 amends the definition of “sexual Youth n n assault” in PC 11165. 1 to add “commercial sexual exploitation. ” This include sex trafficking and/or the provision of food, shelter, or payment to a child in exchange for the performance of any sexual act. Social workers must now cross-report to law enforcement any CSE youth.
4. WHAT IS “REASONABLE SUSPICION? ” n For the purposes of this article, "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. Penal Code § 11166(a)(1).
5. HOW DO YOU REPORT SUSPECTED CHILD ABUSE? n 1. PHONE IMMEDIATELY n n n Police, Sheriff or County Welfare Department Santa Clara County Child Abuse Hotline phone number is 408 -299 -2071 Santa Cruz – 831 -454 -4222, Monterey 831 -899 -8001, San Benito 831 -636 -4190 AND n 2. SUBMIT A WRITTEN REPORT n n WITHIN 36 HOURS Form SS-8572
Can I Submit My Report Electronically? n n n Yes, in Los Angeles County But there is no system for internet-based reporting in Monterey, San Benito, or Santa Cruz counties. So stay tuned. . .
6. LIABILITY FOR FAILING TO REPORT n CRIMINAL PROSECUTION n n CIVIL LIABILITY n n n Penal Code § 11166. 01, 11172(e) Six months county jail plus $1, 000 fine 12 months county jail plus $5, 000 if failure to report resulted in death or great bodily injury (new 1/1/06) Landeros v. Flood (1975) 17 Cal. 3 d 399 You can be sued & face money judgment PROFESSIONAL SANCTIONS n Loss of license and/or employment
Sanctions for IMPEDING a Report of Suspected Abuse n Note: Criminal liability for failure to report suspected abuse extends to “any person who impedes or inhibits a report of abuse or neglect … where that abuse or neglect results in death or great bodily injury” q q See Penal Code § 11166. 01(b) This means that administrators must not say or do anything that impedes a mandated report from reporting 28
7. IMMUNITY FOR REPORTING n n Penal Code § 11172(c) ABSOLUTE CIVIL AND CRIMINAL IMMUNITY n n Absolute immunity for mandated reports Qualified immunity for permissive reports Stecks v. Young (1995) 38 Cal. App. 4 th 365 REIMBURSEMENT FOR ATTORNEY’S FEES n Up to $50, 000
8. How do you comply with the Reporting Act while at the same time follow church personnel policies and procedures? n n Duty to report suspected child abuse overrides contrary church policy/procedure. Duty to investigate and manage personnel issues must be conducted in light of mandatory duty to report (where suspect is church employee or member). 30
PRACTICAL TIPS n n n Discern your level of “reasonable suspicion. ” Call the Child Abuse Hotline if you are uncertain or need a consultation. Call immediately if you are concerned. Do NOT check with the parents first. File a written report within 36 hours. Understand that only a very small percentage of calls to the Child Abuse Hotline result in removal of the child from the home.
REMEMBER. . . n n Maintain connection with CPS and family. The name of the reporter will not be revealed (unless the case goes to court). Our Biblical tradition calls us to protect the vulnerable and voiceless. Isaiah 1. 17 – “Seek justice, encourage the oppressed, defend the cause of the fatherless, plead the case of the widow. ”
ELDER AND DEPENDENT ADULT ABUSE OR NEGLECT
Reporting Elder and Dependent Adult Abuse n n n Welfare and Institutions Code 15600 – 15640 “Elder Abuse and Dependent Adult Civil Protection Act” The purpose of the Act is to require health practitioners, care custodians, clergy members and employees of county adult protective services agencies and local law enforcement agencies to report known or suspected cases of abuse of elders and to encourage community members to do so.
1. WHAT IS REPORTABLE? n n Welfare and Institutions Code 15630(b)(1)) “Any mandated reporter who, in his or her professional capacity, or within the scope of his or physical. has knowledge of her employment, hasabuse. observed. or an incident that reasonably appears to be physical abandonment, abduction, abuse. . . abandonment, abduction, isolation, financial abuse, financial isolation, abuse, or neglect, or is told by an elder or dependent adult that he or she has experienced neglect behavior, or including an act or omission, constituting physical abuse. . . abandonment, abduction, isolation, financial abuse, or neglect, or reasonably suspects that abuse, shall report the known or suspected instance of abuse by telephone immediately or as soon as practicably possible, and by written report sent within two working days, as follows: . . . ”
2. WHO IS AN “ELDER” OR “DEPENDENT ADULT”? n n Elder: a person residing in California who is 65 years of age or older. Dependent adult: a person between the ages of 18 -64 who resides in California and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights; or, someone between the ages of 18 -64 who has been admitted as an inpatient to 24 hour health facilities, including, but not limited to, general acute care hospitals, acute psychiatric hospitals, skilled nursing facilities, and intermediate care facilities.
3. WHO MUST REPORT? n n “Any person who has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult, whether or not he or she receives compensation, including administrators, supervisors, and any licensed staff of a public or private facility that provides care or services for elder or dependent adults, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency, is a mandated reporter. ” Welfare and Institutions Code § 15630
n Note: Unlike the list of child abuse reporters, the list of mandated reporters for elder abuse is fairly short. n Note: Recall that Elders and Deacons are required to report both child abuse and elder abuse under the Book of Order.
4. HOW TO REPORT SUSPECTED ELDER ABUSE n n You must report suspected elder abuse to your local law enforcement agency or to Adult Protective Services. In Santa Clara County, the phone number for APS is (408) 975 -4900 or 1 -800 -414 -2002. n n In Monterey County, 24 hour APS Hotline is: (800) 510 -2020 In San Benito County, 24 Hour APS Hotline: (831) 636 -4190
5. Exception to Elder Abuse Reporting Welfare and Institutions Code § 15630(b)(2) n “A mandated reporter who is a clergy member who acquires knowledge or reasonable suspicion of elder or dependent adult abuse during a penitential communication is not subject to [the reporting requirements]. ”
n “For purposes of this subdivision, "penitential communication" means a communication that is intended to be in confidence, including, but not limited to, a sacramental confession made to a clergy member who, in the course of the discipline or practice of his or her church, denomination, or organization is authorized or accustomed to hear those communications and under the discipline tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret. ”
n “Nothing in this subdivision shall be construed to modify or limit a clergy member's duty to report known or suspected elder and dependent adult abuse when he or she is acting in the capacity of a care custodian, health practitioner, or employee of an adult protective services agency. ” q Like directing a summer camp for elders, or overseeing a senior program, etc.
Caveat n “Notwithstanding any other provision in this section, a clergy member who is not regularly employed on either a full-time or part-time basis in a long-term care facility or does not have care or custody of an elder or dependent adult shall not be responsible for reporting abuse or neglect that is not reasonably observable or discernible to a reasonably prudent person having no specialized training or experience in elder or dependent care. ”
6. Six Types of Elder Abuse n n n 1. Physical Abuse: Acts that injure the body as well as sexual abuse. (California Welfare and Institutions Code § 15610. 63. ) This includes domestic violence. 2. Neglect: Failure of whomever is caring for an elder or dependent adult to adequate provide food, clothing, medical care or shelter. (§ 15610. 57. ) 3. Abandonment: Leaving an elder or dependent adult alone when a reasonably competent person would not have left such person alone. (§ 15610. 05. )
n n n 4. Abduction: Removing an elder or dependent adult from this State without proper consent, or preventing an elder or dependent adult from returning to this state. (§ 15610. 06. ) 5. Isolation: Preventing an elder or dependent adult from receiving mail, telephone calls, or visitors. (§ 15610. 43. ) 6. Financial Abuse: Wrongfully taking or retaining an elder’s or dependent adult’s personal or real property. (15610. 30. )
Examples of Financial Abuse n n n n Taking the elder’s money or personal property. Borrowing money repeatedly and not paying it back. Denying services or medical care to conserve funds. Giving away or selling the elder’s possessions without permission. Signing or cashing pension or social security checks without permission. Forcing the elder to part with resources or sign over property. Financial abuse by strangers: prizes or sweepstakes, lottery scams, telemarketing and mail fraud, identify theft, fictitious investments, etc.
n n 7. Mental Suffering: Fear, agitation, confusion, severe depression brought about by intimidation, threats, harassment or deceptive acts made with malicious intent. (§ 15610. 53. ) But note: mandated reporters are permitted, but not required, to report suspected mental suffering. See 15630(c)(1).
Additional Resources n n n n Online Training from State of California: http: //mandatedreporterca. com Child Abuse Council for Santa Clara County: http: //cacscc. org California Codes www. leginfo. ca. gov/calaw. html California Attorney General http: //caag. state. ca. us California Department of Social Services www. dss. cahwnet. gov
THANK YOU – THE END n n n Materials by L. Michael Clark, Superior Court Judge, Santa Clara County Jane Odell, Presbytery of San Jose Slides last updated 3/17/17
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