By Kevin Lungwitz
All of us have a duty to report child abuse. A “professional” has an elevated duty to report child abuse or neglect within 48 hours if the professional “has cause to believe that a child has been or may be abused or neglected.”1 A professional has the same duty to report if the professional learns that an adult was abused or neglected as a child, and reporting is necessary to protect the health and safety of another child.2 For example, if you learn that an 18- or 19-year-old student was abused when he was a child, or that a teacher was abused when she was a child, and a report is necessary to protect another child, you must report.
Who is a “professional” and how do I make a report?
A professional is “an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties…has direct contact with children.” It specifically includes all certified school employees such as principals, teachers, counselors, librarians, other certified administrators and nurses.
A professional may not delegate to others the duty to report.3 A report may be made to CPS by calling 1-800-252-5400 or visiting www.txabusehotline.org; or in an emergency, to law enforcement (911), or the school police.4 A professional who knowingly fails to report commits a Class A misdemeanor, which could result in jail time and/or a hefty fine. Regardless of whether you are prosecuted, an accusation of failing to report could also impact your employment and educator credentials.
What is abuse and neglect?
The legal definitions of abuse and neglect are too lengthy for this article, but they might be distilled down to these pointers:
- Abuse includes physical, mental or emotional injury that causes substantial harm to the child, including physical injuries of an unexplained or suspicious nature; also, failure to prevent another person from substantially harming the child.
- Abuse includes sexual indecency, sexual assault, or aggravated sexual assault; failing to make a reasonable effort to prevent sexual conduct to a child; and using the child for the creation of obscene or pornographic material.
- Neglect includes allowing a child to be in a situation that would pose a substantial risk; allowing a child to be in a situation that requires judgment beyond the child’s capacity; and failure to provide for a child’s basic needs necessary to sustain the life or health of the child, excluding failure caused primarily by financial inability…5
Excluded from the definitions of abuse and neglect in the school setting, are:
- The lawful use of restraint;
- Reasonable and limited actions that school personnel or volunteers reasonably believe to be immediately necessary to avoid imminent harm to self or other individuals; and
- Reasonable physical discipline where authorized by school policy.6
What if I am not sure if it is abuse or neglect?
If you are asking this question, you should report. Although it is not the legal standard, “when in doubt, report” might be the most prudent advice for educators. The consequences of not reporting, for the child and for you, are too great to wait and see. Most importantly, do not perform your own investigation before reporting. If the information you have warrants an investigation, call CPS and let them do it.
What is the campus principal’s role during a CPS investigation?
CPS should notify you before conducting an investigation on your campus, including the nature of the allegation. You should not alert the alleged perpetrator.7 A school official may not refuse to permit a CPS investigator to interview at school a student who is alleged to be a victim of abuse or neglect. CPS has the right to exclude a school official from the student interview conducted at school. School officials may not interfere with an investigation of a report of child abuse or neglect. Interviews and examinations in a school investigation may take place on or off the school premises, as deemed appropriate by the CPS investigator, provided the investigator notifies the principal prior to conducting an interview or examination on school premises.8
At least one district requires the following procedures for campus principals, although procedures in your district may vary:
- Check the credentials of the law enforcement officer or CPS investigator (both of whom are referred to herein as “the investigator”), including a picture ID, and record the information.
- Inform the investigator the student’s parent or guardian will be notified unless the investigator objects that such notice will impede the lawful investigation. If the investigator objects, request an acknowledgement of the statement in writing.
- Ask whether questioning must take place at the school and/or at that time. If the investigator states not doing so will impede the lawful investigation, request an acknowledgement of the statement in writing.
- Inform the investigator the principal or designee will be present during the interview unless the investigator objects that the presence of the principal or designee will impede the lawful investigation. If the investigator objects, request an acknowledgement of the statement in writing.
- Summon the student to the office by using only the following statement: “Please advise (name of student) to come to the office.” No other statement is to be used.
- If the investigator states he or she will transport the student off campus and that not doing so will impede the lawful investigation, request an acknowledgement of the statement in writing and allow the investigator to take the student.9
If the investigator refuses to place any of the objections or requests above in writing, document this fact, let your supervisor know, and do not impede the investigation.
Can I lawfully dissuade a professional from reporting or retaliate against a professional who makes a CPS report?
No. But there’s more to the story. A teacher cannot be coerced into not reporting. A teacher cannot be directed to make a report to the principal first.10 And if she reports and suffers an adverse employment action she can sue the school and/or the retaliator. A new law was passed this year (HB 621) which gives abuse and neglect reporters more protection from retaliation.11 If an adverse employment action (e.g. bad evaluation, reassignment, demotion, termination/nonrenewal, etc.) was in the works for the teacher long before or completely unrelated to her CPS report, make sure you have ample documentation to support the action.
What are some good resources for staff training on abuse and neglect?
Annual staff training on abuse and neglect reporting is required for all new school personnel. Your district’s policies regarding abuse and neglect reporting “shall be distributed to all school personnel at the beginning of each school year” and “the policies shall be addressed in staff development programs at regular intervals determined by the board …”12 You must also have 11 x 17 posters prominently placed in high-traffic locations informing students, parents and staff about reporting abuse and neglect.13 Here are some trusted resources for your staff training:
- There is a good educator training module on the DFPS website: https://www.dfps.state.tx.us/Training/Reporting/default.asp. There, you will find practical definitions and short video clips designed just for Texas educators.
- Study your district’s policy FFG (legal) and (local). These are summaries of the state law regarding child abuse and neglect reporting, broken down into digestible sections, plus any local adaptations your district has added.
- Also look at your district’s policy GRA (legal) and (local). This is a summary of laws and regulations regarding the campus procedures for a CPS investigation.
Staff training on these issues with all of your staff at the beginning of the school year will go a long way to protecting school children and will help you and your staff avoid accusations of failing to report.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
1Tex. Family Code Sec. 261.101(b)
2Tex. Family Code Sec. 261.101(b-1)
3Tex. Family Code Sec. 261.101(b)
4Tex. Family Code Sec. 261.103
5https://www.dfps.state.tx.us/Training/Reporting/recognizing.asp. See Tex. Family Code Sec. 261.001 for the complete definitions of abuse and neglect.
640 Tex. Admin. Code Sec. 700.403(b)
740 Tex. Admin. Code Sec. 700.407; See policy GRA (legal)
8Id.
9See Austin ISD policy GRA (regulation) with accompanying district form.
1019 Tex. Admin. Code Sec. 61.1051(a)(4)
11Tex. Family Code Sec. 261.101
1219 Tex. Admin. Code Sec. 61.1051(b)
13Tex. Educ. Code Sec. 38.0042; Tex. Admin. Code Sec. 61.1051(f)
TEPSA News, August 2019, Vol 76, No 4
Copyright © 2019 by the Texas Elementary Principals and Supervisors Association. No part of articles in TEPSA publications or on the website may be reproduced in any medium without the permission of the Texas Elementary Principals and Supervisors Association.
Note: Information from Legal Ease is believed to be correct upon publication, but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
