IF YOU ARE A MANDATED REPORTER, READ THIS!

I have a client who was the subject of a child abuse allegation, by her own sons.  Since her divorce, she had sole legal and physical custody of the children.  They were put up to it by their father, her ex-husband.  Over the years, the father tried to gain custody and visitation rights, but was never successful, based on his prior conduct and criminal history.

Once the boys were older (13 and 16), my client let her Ex, who was down on his luck, into the house to watch the boys while she worked the late shift as a prison guard.  The Ex was supposed to make sure the boys did their homework and chores.  Of course he didn't, just to upset my client.  [Note:  It never helps for one parent to have to be the "bad cop" while the other plays the "good cop" to gain favor.  The Ex played this game very well.]  Rather than telling the boys they should respect their mother's wishes and do their homework and chores, he told them they should report her so she could get help for being upset with them all the time.  His plan was to manipulate the boys to try to gain custody, assuming CWS determined abuse had taken place. The father took the sons to a public school, here in San Diego County, where they met with a school counselor.

A school counselor is one of those designated mandated reporters under CANRA, the Child Abuse Neglect and Reporting Act, which consists of California Penal Code, Sections 11164 through 11174.3.  Whenever there is a reasonable suspicion of child abuse, CANRA mandates that the mandatory reporter prepare a Suspected Child Abuse Report, aka a SCAR, and transmit the form to one of the designated investigating agencies.  CANRA also requires that the SCAR remain confidential and can only be transmitted to one of the designated agencies.  CANRA makes it a criminal offense, subject to jail and a fine for a mandated reporter to disclose the report to anyone other than the designated investigative agencies.

It should be obvious what kind of mischief and damage can occur if a SCAR were to be publicly disclosed before a proper investigation of the abuse allegations occurred, particularly if the subject of the report didn't abuse anyone.  It is not uncommon for ex-spouses to manipulate child into making false allegations of abuse during custody disputes.

You can probably guess what happened next.  The school counselor gave a copy of the SCAR to the Ex who no longer had to wait to see if CWS determined abuse had taken place.  He could now bypass "the System" with all its safeguards and confidentiality, and immediately drove to the Family Court with the boys to file paperwork to gain custody and attached a copy of the confidential SCAR as an exhibit!  Much legal mayhem occurred in the aftermath of that and my client incurred legal fees and other expenses, emotional distress, and physical illness from the stress of the events following the disclosure.  Her Ex showed copies of the SCAR to friends and family, many of whom shunned her.  Ultimately, the allegations were deemed unfounded and she maintained sole legal and physical custody of the boys, but the fight took its toll on her and much damage was done to her good name.

She filed a tort claim with the school district, which was rejected the day after it was filed.  We filed suit against the school counselor and the school district.  Eventually, the school district and the counselor filed a Motion For Summary Judgment arguing that the counselor had governmental immunity for disclosing the SCAR and breaching the mandatory confidentiality of CANRA.  The trial judge agreed and entered judgment against my client.  They then went after her for about $25000 in costs defending the case.  I filed an appeal arguing that there was no immunity.  After all, since when does anyone have immunity for committing a crime?  The school counselor violated the Penal Code by making an unauthorized disclosure.

Almost 1 1/2 years after filing the appeal, with the briefing by both sides completed in February, on October 18, 2013 we had oral argument in the 4th District Court of Appeals, Division One, downtown San Diego.  I left the hearing feeling very confident.  On November 18, 2013, only 2 days ago, the ruling came down.  REVERSED!  In a slam dunk, the Appeals Court ruled that there was no immunity for violating the mandatory confidentiality required in CANRA, especially because such a violation is subject to criminal sanctions, including jail and a fine.  The ruling becomes final 30 days after the decision and the defendants have 10 days after that to file an appeal with the State Supreme Court, but the odds of having the Supreme Court take the case are maybe 5%.  This was a case of "first impression" and no other appellate court had ever ruled on the question of immunity under these circumstances.  Ultimately, this decision with benefit potential victims of child abuse, because it further strengthens the language contained in CANRA making reporting AND confidentiality clear and enforceable.

So... if you are a mandated reporter, please take the mandatory confidentiality seriously.  There is no immunity for violating that and you could be subjected to imprisonment and a fine for doing so, not to mention a lawsuit for damages... substantial damages.  A copy of the decision can be found at:

Cuff v. Grossmont Union High Sch. Dist.