13.2 Statutory Framework for Investigating Abuse and Neglect

• Library: Juvenile Law and Practice in Virginia (Virginia CLE) (2018 Ed.)

13.2 STATUTORY FRAMEWORK FOR INVESTIGATING ABUSE AND NEGLECT

13.201 Mandatory Reporting. The Virginia Code requires physicians, nurses, teachers, and a variety of other specifically named professionals who work with children and families to make a report whenever they have "reason to suspect" that a child has been abused or neglected. ⁵ The report must be made to the department of social services in the jurisdiction where the child resides or where the abuse or neglect is believed to have occurred or, if that locality is not known, to the department of social services where the abuse or neglect was discovered. In any event, the report may be made to the state's toll-free child abuse and neglect hotline. ⁶

If the information regarding suspected child abuse or neglect is received by a teacher, staff member, resident, intern, or nurse in the course of professional services in a hospital, school, or similar institution, that person may, instead of making a direct report, immediately inform the person in charge of the institution or department "or his designee." Any person who is required to file a report must then make the report "as soon as possible but not longer than 24 hours after having reason to suspect a reportable offense." ⁷ If the suspected abuser is an employee of the local department of social services, the report of suspected abuse should be made to the juvenile and domestic relations district court of the county or city where the abuse or neglect was discovered. ⁸ The Fourth Circuit Court of Appeals has found that the mandatory reporting requirement also applies to church-run child care facilities and does not burden the free exercise of religion. ⁹

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Mandated reporters have the obligation to provide "all information" that forms the basis for suspecting child abuse or neglect. Upon request by the investigator, these reporters are also required to provide any records or reports that document the basis for their report.

A report of suspected abuse or neglect must also be made when there is "reason to suspect" prenatal substance abuse or in utero exposure, including:

		1.	A finding made by a health care provider within six weeks of birth that the child was born affected by substance abuse or experiencing withdrawal symptoms resulting from in utero drug exposure;
2.	A diagnosis made by a health care provider within four years following a child's birth that the child has an illness, disease, or condition that, to a reasonable degree of medical certainty, is attributable to maternal abuse of a controlled substance during pregnancy; or
3.	A diagnosis made by a health care provider within four years following a child's birth that the child has fetal alcohol spectrum disorder attributable to in utero exposure to alcohol. 10

Although none of these factual conditions necessarily supports a finding that the child was abused or neglected, each is sufficient to support a "reason to suspect" abuse or neglect and thereby prompt the requirement for reporting. When "reason to suspect" is based on one or more of these conditions, that fact must be included in the report along with the facts relied on by the person reporting. ¹¹

Section 16.1-241.3 of the Virginia Code also authorizes the filing of a petition in the juvenile and domestic relations district court alleging that an investigation has been commenced in response to a report of suspected abuse or neglect based on one or more of these conditions.

13.202 Immunity for Good-Faith Reporting. Any person who makes a child abuse or neglect report, takes a child into custody with authority under the child abuse and neglect laws, or participates in a judicial

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proceeding resulting from such a report is immune from civil or criminal liability unless it is proven that the person acted in "bad faith" or with "malicious intent." ¹²

13.203 Statutory Penalties. Unless the mandated reporter has actual knowledge that the matter has already been reported, any person required to make a child abuse or neglect report who fails to do so as soon as possible, but no longer than 24 hours of that person's first suspicion of child abuse or neglect will be fined not more than $500 for the first failure and, for any subsequent failures, not less than $1,000. ¹³

Any person 14 years of age or older who makes "or causes to be made" a report of child abuse or neglect that he or she "knows to be false" is guilty of a Class 1 misdemeanor. A higher penalty is imposed for a subsequent conviction. The child welfare agency that is the custodian of the records must purge all records relating to the alleged abuse or neglect complaint immediately upon receiving a certified copy of a conviction for making a false report. ¹⁴

A person who believes that a report of abuse or neglect against him or her was made in bad faith or maliciously may petition the circuit court in the jurisdiction where the report was made to order the agency to release to that person the records relating to the investigation or family assessment. The petition must specify the reasons the person believes that the report was made in bad faith or with malicious intent. Upon receiving the petition, the court will direct the local department of social services to provide its records for in camera review. The court must provide the petitioner with a copy of the records if it finds that (i) there is a reasonable question of fact as to whether the report was made in bad faith or with malicious intent; and (ii) disclosure of the reporter's identity would not be likely to endanger his or her life or safety. ¹⁵ The department is not entitled to a hearing on whether the records should be released. ¹⁶ Upon request, the local department must advise the person who is the subject of an unfounded complaint if the report was made anonymously. ¹⁷

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13.204 Family Assessment or Investigation by Local Child Protective Services.

A. In General. Each local department of social services is required to establish a child protective services (CPS) unit and to be able to respond to reports on a seven-day-a-week, 24-hour-a-day basis. ¹⁸

The Virginia Department of Social Services staffs a CPS differential response system in all local departments of social services. Local departments may respond to valid reports or complaints of child abuse or neglect either by conducting an investigation or through a family assessment. ¹⁹ The local departments are required to respond to valid reports and complaints alleging suspected abuse or neglect of a child under the age of two within 24 hours of receiving those reports or complaints. ²⁰

The differential response system recognizes the need for different approaches to child abuse and neglect and gives CPS units more discretion in addressing individual complaints or reports. The family assessment response was described by a subcommittee of the General Assembly as follows:

A family assessment is less adversarial, threatening and intrusive than an investigation and more likely to engender family cooperation. In family assessments there would be no determination of whether the case is founded or unfounded and no entry into the central registry. The role of the CPS worker would be to identify the problem and provide immediate support, treatment and services to the family without assigning blame. After completion of the assessment, a family may decline services. A local department may switch a case from family assessment to investigation at any time it is warranted due to the receipt of new information. ²¹

Even though a family assessment does not determine whether a complaint was founded or unfounded, it could still result in a petition being

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filed with the court requesting that services be ordered or that the child or child's siblings be removed from the home. ²²

A "family assessment" requires the collection of information necessary to determine:

		1.	The immediate safety needs of the child;
2.	The protective and rehabilitative services needs of the child and family that will deter abuse or neglect;
3.	Risk of future harm to the child;
4.	Whether the mother of a child who was exposed in utero to a controlled substance sought substance abuse counseling or treatment prior to the child's birth; and
5.	Alternative plans for the child's safety if protective and rehabilitative services are indicated and the family is unable or unwilling to participate in services. 23

Number (4) above was added in 2017. If the report is based on reason to suspect abuse or neglect of a child through prenatal substance abuse or in utero exposure pursuant to section 63.2-1509(B), a family assessment now requires the collection of information necessary to determine whether the mother of a child who was "exposed in utero to a controlled substance" sought substance abuse counseling or treatment prior to the child's birth. ²⁴

An "investigation" requires the collection of information necessary to determine the facts set out in numbers 1 through 3 and 5 of section 63.2-1506(A) and also requires collecting information to determine:

		1.	Whether or not abuse or neglect has occurred;
2.	If abuse or neglect has occurred, who abused or neglected the child; and

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3. A finding of either founded or unfounded based on the facts collected during the investigation. ²⁵

The department is then required to complete a report and enter it into the statewide automation system. In conducting an investigation, the local department may obtain and consider statewide criminal history record information from the Central Criminal Records Exchange on any individual who is the subject of the investigation and on adult household members. ²⁶

B. Local Department's Duties. If the local department determines that a report of child abuse or neglect is valid, it must conduct either an investigation pursuant to section 63.2-1505 or a family assessment under section 63.2-1506. ²⁷...