By Rachel Bussett
I’ve long been an outspoken advocate for kids in schools, families and medical care.
When I wrote my application essay to law school, I was pregnant with my first child and I wrote about how I wanted to use my law degree to protect children because of the experiences I had growing up.
I spent my first year of law school pregnant with my second child and working for a judge who handled the divorce, deprived and delinquent dockets. After this emotionally, exhausting experience in law school, I spent the first half of my career actively avoiding divorce, deprived and delinquent cases and instead worked on advocating for children in schools and through legislation for medical research and funding.
As I moved out of a corporate practice and into my own firm, I found myself branching out into those areas of law that I avoided when I first started practicing. In doing so my passion for helping kids began to really show and I slowly started working on cases that I found to be emotionally fulfilling rather than simply financial.
However, in doing that kind of work I often encounter really tough scenarios. One of the hardest things I have ever had to do as an attorney is to help a client make a call to the police or DHS child abuse hotline to report suspected abuse or neglect.
Under Oklahoma law every adult who suspects abuse is obligated to report the abuse. “Every person having reason to believe that a child under the age of eighteen (18) years is a victim of abuse or neglect shall report the matter immediately to the Department of Human Services. 10A OS §1-2-101.
That is a really big obligation on everyone. Previously, the obligation to report was only on people in certain power positions such as teachers, doctors, or counselors. This obligation has been expanded to every person and there is no “privilege” that relieves anyone from the obligation to report.
As a human being I understand the importance of this. For many years violence against children was overlooked and not talked about. Oklahoma consistently ranks among the worst states for child safety and exposure to childhood trauma so we want to encourage and even require reporting to protect our most vulnerable people.
However, as a lawyer I know that this mandatory reporting scheme can be and is abused. Reports to DHS are made in custody cases as a way to gain an advantage in the system by casting doubt on the other person’s character. Then, as soon as child welfare history is created against a parent it impacts their ability to potentially foster a child or act as a guardian to another child in the future.
In my role as an attorney it has placed me in a situation where I have been forced to call child welfare with a client when I didn’t really believe that the call needed to be made.
I have had to counsel professionals through making the decision on calling DHS about other professionals when there was a question about whether certain conduct rose to the level of abuse or neglect under the statutes. These requirements create a slippery slope of liability and hand tying for someone who has a suspicion but no concrete proof about potential neglect or abuse as well.
If one makes an allegation against another that turns out to be unfounded or unsubstantiated there is a risk of retaliation in employment or lawsuits for defamation of character Additionally, there is the risk of damage to someone else’s career if the allegation is incorrect.
On the flip side, I never want to be the lawyer or mother who finds out later that I was right about a gut feeling of abuse that I didn’t turn in because I didn’t have solid irrefutable proof of the actions either. Failure to report the abuse can also result in the individual who suspected the abuse getting charged with a misdemeanor or felony depending on the length of time that has passed and whether the failure to report was willful or not. False reporting also carries with it the risk of misdemeanor charges.
Unfortunately, the way that the child abuse prevention law is written in Oklahoma it creates a conundrum of liability and risk to the party who suspects abuse or neglect. The statue doesn’t define failure to report, willful conduct on behalf of the reporter, good faith conduct on the reporter, or what the length of time is in failing to report that might lead a person to be charged with a felony or misdemeanor.
Thus these statutes create a question of what conduct is legal and illegal and a guess at how reasonable people comply with the law.
The intent of the Child Abuse Prevention Act is great but the way by which the legislature put it into being needs improvement to protect the individual who is making a good faith report as well as the one who is being reported on from malicious reporting. I believe that this is just one of the many reasons why we have problems with our juvenile justice system.
Rachel Bussett is an Oklahoma City attorney. She can be reached at 405-605-8073.
