No Immunity for School Counselor Who Disclosed Report on Suspected Child Abuse to Unauthorized Person

A mother sued a school counselor and a school district after the counselor gave a copy of a suspected child abuse report (“SCAR”) which indicated the mother abused their children, to the noncustodial father.  A trial court granted judgment in favor of the counselor and the school district on the ground they are immune from the lawsuit.  The court of appeal reversed, holding that the counselor’s conduct did not qualify her for immunity.  (Cuff v. Grossmont Union High School District (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., November 18, 2013).

A mandated reporter must make a report to the appropriate agency if he or she knows of or observes a child who is the victim of abuse or neglect.  Penal Code section 11167.5, provides that reports of known or suspected child abuse are confidential and may only be disclosed to persons and agencies listed in the statute.  Section 11167.5 provides that a violation of the confidentiality provision is a misdemeanor.

In this case, a mother with custody filed a complaint against a school counselor (“Saunders”) and the Grossmont Union High School District (“District”) alleging invasion of privacy due to a violation of the confidentiality provision of the Child Abuse and Neglect Reporting Act (“CANRA”).  Saunders and the District claimed immunity for Saunders’s unauthorized disclosure of the report to [father] pursuant to Penal Code section 11172, subdivision (a), which provides that “[n]o mandated reporter shall be held civilly or criminally liable for any report authorized or required by” CANRA.  The appellate court found that while section 11172 provides that a mandated reporter may not be sued for making a report to an authorized agency, it “clearly does not immunize a mandatory reporter’s conduct that does not comply with the strict confidentiality provisions of the statute.”   In other words, section 11172 does not provide immunity to mandatory reporters who disclose the SCAR in violation of confidentiality laws.

The appellate court also concluded “that Saunders’s release of a copy of the SCAR to [father], allegedly in response to an ‘emergency,’ is not immunized pursuant to the Education Code provision that authorizes the release of certain information from ‘pupil records’ in an emergency situation.”  The appellate court also rejected the claim of immunity pursuant to Government Code section 820.2, which provides that a public employee will not generally be held liable when an injury results “from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”  Pursuant to the CANRA, a mandatory reporter does not have discretion to disclose a SCAR to anyone other than the persons or agencies listed in the statute.

What This Means To You

Districts should ensure that mandatory reporters do not release SCAR’s to persons, even parent(s), in circumstances which violate CANRA confidentiality.

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Meghan Covert Russell | 916.321.4500

- See more at: http://www.kmtg.com/resources/legal-alerts/no-immunity-school-counselor-who-disclosed-report-suspected-child-abuse-unaut#sthash.gBzL0iMN.dpuf

A mother sued a school counselor and a school district after the counselor gave a copy of a suspected child abuse report (“SCAR”) which indicated the mother abused their children, to the noncustodial father.  A trial court granted judgment in favor of the counselor and the school district on the ground they are immune from the lawsuit.  The court of appeal reversed, holding that the counselor’s conduct did not qualify her for immunity.  (Cuff v. Grossmont Union High School District (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., November 18, 2013).

A mandated reporter must make a report to the appropriate agency if he or she knows of or observes a child who is the victim of abuse or neglect.  Penal Code section 11167.5, provides that reports of known or suspected child abuse are confidential and may only be disclosed to persons and agencies listed in the statute.  Section 11167.5 provides that a violation of the confidentiality provision is a misdemeanor.

In this case, a mother with custody filed a complaint against a school counselor (“Saunders”) and the Grossmont Union High School District (“District”) alleging invasion of privacy due to a violation of the confidentiality provision of the Child Abuse and Neglect Reporting Act (“CANRA”).  Saunders and the District claimed immunity for Saunders’s unauthorized disclosure of the report to [father] pursuant to Penal Code section 11172, subdivision (a), which provides that “[n]o mandated reporter shall be held civilly or criminally liable for any report authorized or required by” CANRA.  The appellate court found that while section 11172 provides that a mandated reporter may not be sued for making a report to an authorized agency, it “clearly does not immunize a mandatory reporter’s conduct that does not comply with the strict confidentiality provisions of the statute.”   In other words, section 11172 does not provide immunity to mandatory reporters who disclose the SCAR in violation of confidentiality laws.

The appellate court also concluded “that Saunders’s release of a copy of the SCAR to [father], allegedly in response to an ‘emergency,’ is not immunized pursuant to the Education Code provision that authorizes the release of certain information from ‘pupil records’ in an emergency situation.”  The appellate court also rejected the claim of immunity pursuant to Government Code section 820.2, which provides that a public employee will not generally be held liable when an injury results “from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”  Pursuant to the CANRA, a mandatory reporter does not have discretion to disclose a SCAR to anyone other than the persons or agencies listed in the statute.

What This Means To You

Districts should ensure that mandatory reporters do not release SCAR’s to persons, even parent(s), in circumstances which violate CANRA confidentiality.

Topics:  Child Abuse, Governmental Immunity, Governmental Liability, Public Schools, Reporting Requirements, Right to Privacy, School Districts

Published In: Education Updates, Privacy Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Kronick, Moskovitz, Tiedemann & Girard | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »