California Child Abuse Lawyers: Help For Injured ChildrenOur represent victims of child abuse in cases throughout the State of California. We represent a wide range of clients in these cases, including, survivors of shaken baby syndrome, abusive head trauma, broken bones (arms, legs and skull fractures), burns, sexual assault, statutory rape, death and severe neglect. There are specific California child abuse laws that apply to these cases. It is illegal for a person to abuse a child, and there are also laws which require persons and companies that work with children to report suspected child abuse.
This means that if someone does not report suspected child abuse, they can be held responsible for the child abuse inflicted by another person.Our California child abuse attorneys get compensation for child abuse victims who suffer injuries and help families who have lost a loved one due to child abuse. We work to get the maximum settlements for our clients in cases throughout the entire State of California. We help your child win the highest settlement for his or her child abuse case. Common Types of California Child Abuse InjuriesOur California child injury lawyers can get your child compensated for many and circumstances caused from the child abuse. These include:. Pain and suffering. Medical bills.
Per California Penal Code 273(d), child abuse occurs when a defendant imposes physical injury or cruel punishment on a child. Examples of child abuse under this section include: slapping a child hard enough to leave a mark, punching a teenage boy for staying out too late,. Definitions and Types of Child Abuse/Neglect State law defines child abuse as (1) physical injury inflicted on a child by another person, (2) sexual abuse, or (3) emotional abuse. Child neglect is defined as negligent treatment which threatens the child's health or welfare.
Psychological counseling. Post Traumatic Stress Disorder (PTSD). Disfigurement resulting from scars or burns. Infection from sexually transmitted disease. Pregnancy from statutory rape. Bone Fracture Injury. Shaken Baby Syndrome.
Retinal hemorrhage. Subdural hemorrhage. Paralysis. Hemiplegia. Quadriplegia.
Metaphyseal fracture. Nerve Damage. DeathIn addition to physical injuries, a child abuse victim often suffers from psychological damages as well. These psychological damages can include, but are not limited to, nightmares, post-traumatic stress syndrome, humiliation and embarrassment. There are also hospital bills, medical bills, and prescription expenses. Many victims also have a claim for lost income.
California Child Abuse CasesVictims and their families can file a lawsuit against the child abuser or persons or companies who failed to comply with child abuse reporting laws for the injuries or death suffered. A lawsuit for a California child abuse case must be filed with the court, unless the insurance company settles the claim sooner. Once the lawsuit is filed, a claim for damages and losses is made and proof of the child abuse injury is documented through medical records, medical bills, photographs, and any witnesses that know anything about what happened to the child or who treated the child.It is very helpful to collect any information you have about who was involved in the abuse, or who knew anything about the child’s injuries, when you contact us. Other useful evidence a victim’s family should collect include the names of the abuser and names of people who witnessed previous instances of abuse. In situations in which a victim dies due to the injuries suffered in the child abuse or severe neglect, the surviving family members can file a for the loss of their loved one. California Child Abuse Lawyer No Fee PromiseOur California child abuse lawyers will represent your child in a California child abuse case under our NO FEE PROMISE.
You have absolutely no obligation for legal fees unless we win your case. If we do not obtain a settlement for you, you owe us nothing! You and your child will not be responsible for costs we advance on behalf of the child.Also, we will come to you – because we take cases all over the State of California. So you will not need to travel to visit with us if we take your case. Contact Our California Child Abuse LawyersIf you or a family member suffered injuries or died due to child abuse, you should contact our California child abuse attorneys immediately. We have obtained substantial compensation and settlements for victims of child abuse.
Tell us your story and we will get started on your case today. Call us now at (888) 592-KIDS (5437) to speak with an experienced California child abuse attorney about your case.
Because many parents who abuse substances also neglect or abuse their children, it is commonfor clients in substance abuse treatment to have contact with some part of the child protectiveservices (CPS) system. While the organizational roles and titles will vary, a CPS agency is thepart of a State's child welfare system responsible for investigating and processing child abuseand neglect cases. For convenience, the term 'CPS agencies' is used in this chapter to refer toall aspects of social services related to child welfare. For more on the role of CPS agencies,see.Some substance-abusing parents will be drawn into the CPS system duringtreatment; others will be compelled into substance abuse treatment by a CPS agency. In eithercase, it is critical that treatment providers become familiar with the laws governing the childprotective system, including. Federal laws requiring States to adopt policies, goals, and time limits in the childwelfare realmComplicating the picture are the Federal law and regulations governing confidentiality ofinformation about clients in substance abuse treatment (42 U.S.C.
§290dd-2; 42 Code of FederalRegulations C.F.R., Part 2), which restrict the circumstances under which programs can makedisclosures about clients, as well as the information they can disclose. This chapter explainsthe legal requirements treatment providers must follow, discusses the difficulties and potentialconflicts that may arise, and offers some guidelines to help minimize legal difficulties andclinical dilemmas. Mandated ReportingAll States require designated groups of individuals to report incidents of known or suspectedchild abuse or neglect.
Eighteen States, in fact, require all citizens to report suspectedabuse or neglect; other State mandatory reporting statutes often include substance abusetreatment staff, particularly staff comprised of State-licensed therapists, nurses, and socialworkers. If a professional's failure to report results in injury to the child, he may facecriminal charges or a civil suit for damages or suspension or revocation of his professionallicense. Those who are mandated reporters under State law generally are immune from liabilityfor reports made in good faith that are later found unsubstantiated or erroneous. In someStates, any person or agency that employs individuals who are mandated reporters must provideall employees with written information outlining the reporting requirements.An adult survivor of abuse, however, usually discusses events that took place many yearsbefore. In these situations, there is generally not a duty to report and often little legalrecourse for the survivor.
A counselor is generally under no obligation to report abuse orneglect that the client describes suffering as a child many years ago. CPS agencies are notinterested in investigating cases in which no child is in imminent danger. However, if theperson who abused or neglected the client now has custody of other children, the program shouldseek advice about whether it has reporting responsibility. If a client consents, the programcan report the situation even if it is not mandated to do so. The situation is more complicatedif, while in treatment, a client has had to leave her children with a family member who is thesame person who abused her as a child. She may fear for her children's safety but have noalternatives for child care and therefore may not even identify this person as the perpetrator. Disclosing information in reporting child abuse orneglectSubstance abuse treatment providers should disclose only the information required by Statelaw when they report child abuse or neglect.
Counselors and other staff members in treatmentagencies are permitted to comply with State mandatory reporting laws under a narrow exceptionin the Federal confidentiality regulations. Those regulations (which are discussed below andin ) generally prohibit substance abusetreatment agencies and their staff from disclosing client-identifying information to anyonewithout the client's written consent. The child abuse reporting exception appliesonly to initial reports of child abuse or neglect (42 C.F.R. §2.12 (c)(6)).Programs may not respond to followup requests for information or tosubpoenas for additional information, even if the records are sought for use in civil orcriminal proceedings resulting from the program's initial report. (See below for a discussionof how to deal with such requests.) That means that in making an initial report of suspectedabuse to a CPS or other designated agency, the mandated reporter should provide only thebasic information required by the State mandatory reporting law. The counselor may give hername and the name of the program, and if the law requires it, she must. No other informationshould be disclosed without the client's written consent.Please note that these guidelines are an explanation of current Federal and State lawsregarding client confidentiality for substance abuse treatment programs.
They are meant tohelp reduce legal complications that could interfere with a client's treatment-or aprogram's operation. They are not meant to imply or encourage an adversarial relationshipwith CPS agencies. Ongoing collaboration is important and allowed when appropriateconsent forms are signed. With more than 50 percent of child protective casesinvolving substance abuse, CPS agencies are dependent on the expertise of the treatmentagencies.
Dealing with the legal requirements: Making the taskeasierAgencies providing substance abuse treatment should develop a protocol to handle legalrequirements. For example, an agency may have a protocol that requires the counselor todiscuss the case in question with a supervisor.
If they decide the case is reportable, thenthe supervisor discusses it with the clinical director. If more information is sought, suchas by subpoena, the director would contact a lawyer. Orientation for new staff members shouldinclude the agency's reporting policies and procedures. It is recommended that these policiesinclude provisions requiring staff members to inform their supervisor or appropriate programpersonnel whenever they make a report, as well as the need to consult with their supervisorwhenever they have concerns regarding the need to report.Many substance abuse treatment agencies have found it useful to designate a capable memberof the staff to. Clinical concernsCounselors may be concerned that compliance with the mandatory reporting law will damagethe client-counselor relationship or trigger relapse.
A recent study shows that neither islikely to occur: Most clients stay in treatment after a report, and many are able to overcomethe negative feelings that often result.There are ways to limit the potential damage to the therapeutic relationship. The first isto inform the client about the mandatory reporting law at the time of admission. This practice is actuallyrequired by the Federal confidentiality regulations. §2.22 of the regulations requires thatsubstance abuse treatment programs give all clients a notice describing the confidentialityrules, as well as their exceptions (which include mandatory child abuse reporting), uponadmission or as soon thereafter as possible. (The regulations contain a sample notice at§2.22(d) that may be used for this purpose.) This practice is also endorsed by the AmericanPsychological Association and the Code of Ethics for Social Workers.A second way to limit damage is to provide the client an opportunity to self-report.Self-reporting 'affords the individual an opportunity to assume responsibility for his or herown actions and allows for at least some control in what otherwise might be a powerlesssituation' (, p. If the clientmakes the report from the counselor's office, the counselor can provide appropriate support.Counselors should be aware, however, that although this might preserve the therapeuticrelationship, it may not fulfill the counselor's statutorily imposed duty to make a report.Sometimes it is possible to minimize damage to the relationship by completing the report(both oral and written) in the client's presence.If there is imminent risk to a child, the counselor may not have time to engage the parentin the process. For example, if a counselor learns that the client has scalded his child andtied him to the bed, it would be appropriate to contact a CPS agency immediately.
Developing Reporting Policies and ProceduresFailure to comply with statutory reporting mandates or to limit the report as required bythe Federal confidentiality regulations can place the individual counselor and the counselingagency at risk. Therefore, everyone in the agency who is required by law to report suspectedabuse or neglect must clearly understand when and how a report must be made and whatinformation must be reported.The best practice is to adopt a written policy or protocol before a case arises. Recentlyhired counselors should read or be given training on such policies.
Reporting policies andprocedures should include a reference to the State's legal requirements, including thedefinitions of child abuse and neglect, the categories of persons who must report, whatinformation must be in the report, and how a report should be made and documented.Specifically, the Consensus Panel recommends that agency policy include. A requirement that staff members who are mandated reporters consult a supervisor or teamleader before calling the CPS agency to report suspected child abuse or neglect unless thesituation is an emergency (Some States require that the agency as well as the individualcare provider make a report; moreover, consulting with a supervisor ensures that the wisestdecision is made in this emotionally charged area, particularly in ambiguous or doubtfulcases, and it will ensure that the agency is prepared to handle any legal issues that maysubsequently arise.). State Laws Regarding Child Abuse and NeglectAll 50 States and the District of Columbia have statutes that protect children from abuse andneglect by their parents or others. There are criminal statutes prohibiting certain acts (orfailures to act), violation of which may lead to imprisonment. There are also civil statutesthat prohibit abuse and neglect. If these statutes are violated, the court may imposerequirements that parents accept certain kinds of help (such as substance abuse treatment,parenting classes, or anger management training), that their children be removed from the home,or that their parental rights be terminated.Most States define abuse as an act or failure to act that results in nonaccidental physicalinjury or sexual abuse of a child.
Neglect generally includes the denial of adequate food,shelter, supervision, clothing, or medical care when such resources or services are available.As noted in, each State defines abuse andneglect differently, and the conditions considered to be neglect or abuse in one State may notbe the same in others. Because State law often requires that treatment providers reportsuspected abuse and neglect, treatment staff should become familiar with their State'sdefinitions of abuse and neglect. Staff can contact the State's CPS agency for information oncurrent laws. (If the abuse occurred in another State, or if the perpetrator is currentlyliving in another State, it is wise to check on the laws in the other State to ensurecompliance. At times, there may be a need to report in both States.) Readers can also findState statutory child abuse and neglect definitions on the Internet atFederal definitions of these terms appearin the Child Abuse Prevention and Treatment Act, 42 U.S.C.
In some cases, the CPSagency can be consulted regarding whether or not a report must be made in a particularsituation without divulging confidential (i.e., identifying) information. Consultation with theCPS agency must be done with great care, and this communication can be noted in the client'schart.Although each State's laws are different, the following conditions are reportable in mostStates:.
Treating one child, the 'bad one,' far more harshly than othersWhether behaviors like these are reportable depends, in part, on how State statutes defineabuse and neglect, the seriousness of the behavior or incident, its impact on the child, andthe counselor's perception of the client's overall behavior with the child and of the client'swillingness to correct inappropriate behavior.The difficulty for counselors is that substance abusers are often the products of poorparenting themselves and many have had little or no exposure to appropriate parenting behavior( ). Without a reasonable model ofnurturing behavior, they may simply deal with their children in the same inappropriate waysthey were treated.
They may have no intention of harming their children and no notion that theyare putting their children at risk.Because of these complicating factors, the decision whether to report parents who treat theirchildren inappropriately can be rather difficult. Clearly, inappropriate child-rearingpractices cannot be ignored; they are important danger signals. Yet not every inappropriateaction a parent takes can-or should-be reported. On the other hand, counselors must keep inmind that they are required to report when they have a firm belief or a reasonable suspicion(the statutory definition will vary) that a child is abused or neglected (as that term isdefined). Their responsibility is limited to making a report; it does not include conducting aninvestigation to determine whether the abuse or neglect actually occurred. That is the job ofthe CPS agency. There may also be timeframes within which reporting must occur, and sanctionsfor failure to report.If counselors are unsure of how to proceed or what is required in a murky or complex case,they should consult with a supervisor, a colleague in the treatment program, or others (see).
Of course, such consultation must be made without violatingFederal confidentiality regulations. (Seefor a further discussion of this issue.) As this chapter advises earlier in 'DevelopingReporting Policies and Procedures,' programs should adopt written policies governing childabuse reporting and should require counselors to consult with supervisors before making a childabuse or neglect report.
Ongoing training and a thorough knowledge of community resources willhelp counselors determine what actions are most likely to benefit the child and whetherreporting is required. Parental Substance Abuse as Child Abuse andNeglectThe differences in the ways States define child abuse and neglect are particularly strikingin the area of parental substance abuse. In some States, parental substance abuse, by itself,may constitute child abuse or neglect. In others, something more must be shown. For example,in South Carolina, giving birth to a drug-exposed infant is a criminal offense; a convictionmay send the mother to prison ( State v.
Whitner, 328 S.C. 2d 777 1997, cert.
Denied, 118 S. 1857 1998). In otherStates, like New York, 'a report which shows only a positive toxicology for a controlledsubstance in the newborn generally does not in and of itself prove that a child has beenneglected' ( Nassau County Department of Social Services v. DeniseJ., 87 N.Y.
2d 73, 661 N.E. Substance-using pregnant womenMany States have employed both criminal and civil sanctions in an attempt to penalizepregnant women who use substances for the harm they may be causing the fetus. Since untilrecently no existing criminal statute directly addressed prenatal injury to the fetus by asubstance-using mother, criminal prosecutors have used 'State statutes related to child abuseand neglect, involuntary manslaughter, prohibitions on delivery or distribution of controlledsubstances to minor, and pure drug use' (, p. By 1991, at least 19 States and the District of Columbia charged womenwith felonies for substance use during pregnancy.Many courts have also disregarded sentencing guidelines and imprisoned pregnant drug usersfor terms long enough to ensure their infants were born drug free.
The South Carolina State Supreme Court was thefirst to rule that a viable fetus could be considered a 'person' under child abuse laws. (Inother States, however, courts have held that child endangerment laws do not apply tofetuses.) In South Carolina, district attorneys were directed to treat situations in which apregnant woman is using drugs as subject to duty-to-report provisions, placing medicalpersonnel and counselors in legal jeopardy if they failed to inform authorities of such apregnancy. In a related trend, judges commonly remand substance-using pregnant women who arearrested for prostitution, drug peddling, or other crimes to residential treatment centers,which are ordinarily reserved for persons with severe substance dependence.Mothers who give birth to babies who are born harmed by or addicted to illegal substancesmay also face legal consequences. Child abuse and neglect laws have been passed in someStates specifying that the birth of an infant who is addicted to an illegal substanceconstitutes a mandated reporting situation. A South Carolina woman was sentenced to a 5-yearprison term for child neglect when her child was born with cocaine in his system.
In awell-known 1989 Florida case, another woman was arrested and mandated into residentialtreatment for child abuse because of evidence of cocaine in the umbilical cord at birth.Because a fetus is not considered a 'person' in Florida, the State prosecutor had to showthat the woman 'delivered drugs' to the baby in the brief period before the umbilical cordwas cut. Eventually, theFlorida Supreme Court overturned this conviction. Even so, there has been a movement in someStates to define any maternal substance use during pregnancy as child abuse or neglect.Significant cultural and economic issues are associated with the way in which Statereporting requirements are implemented.
One landmark study showed that a woman who delivers asubstance-dependent child is more likely to be reported if she is a woman of color. It is worth noting that the samestandards are not applied to women who use alcohol or smoke, even though the consequences maybe equally-or even more-harmful for the baby. The long-term impact of fetal alcoholsyndrome is far more clearly documented than that of fetal exposure to cocaine, for example.And according to at least one study, maternal alcohol abuse may be the most frequentenvironmental cause of mental retardation in the Western world.If counselors are aware of these trends in their jurisdiction, they will be better able todiscuss the possible legal consequences with pregnant women. At the same time, understandingthe current mood in the country will allow the counselor to understand better the addedstress felt by drug-abusing mothers. This pressure is a good topic to discuss with pregnantclients in substance abuse treatment. Counselors should be aware that the client's concernfor her unborn child, and the self-esteem issues evoked by the situation, might help keep herin treatment-or lead to relapse. A CPS agency can refer the case to criminal justice officials.The majority of child abuse or neglect reports will not result in full-fledged court cases.Of those that do result in court action, most are brought in a family court, where hearings areclosed to the public and files are sealed.
Only rarely will a report result in criminal chargesagainst the parent.Whatever is reported to the CPS agency or whatever action that agency takes, if the parentcontests the charges or objects to the CPS agency's proposals, she is entitled to a hearing andto be represented by an attorney. In this country, parents may not have their childrenpermanently removed or their parental rights terminated or be punished or be required to gointo substance abuse treatment without a court proceeding. (Of course, parents may findthemselves coerced into agreeing to enter treatment to retain their children.) In cases where achild has been removed from a home against the parent's wishes, a hearing must be held within aspecified time, or the child must be returned. The focus in any initial hearing will beplacement of the child during a CPS agency investigation or during any trial. Clinical IssuesThe counselor's role can be critical for a client involved in a child abuse or neglectinvestigation or proceeding. Getting the client to sign a consent form allowing communicationand joint service planning can be an important first step (see ).
The counselor can help a client understand what ishappening, help her stay focused on what needs to be accomplished, and provide support andencouragement. However, to offer the client sound assistance the counselor needs some basicinformation:. What is the client's view of the CPS agency and of the entire situation?Although some might think the last question strange, soliciting the client's view of the CPSagency will help to maintain the counselor-client relationship as the investigation unfolds.Clients have often had negative experiences with CPS agencies or other social service agenciesthat have intervened in their lives, especially if cross-cultural issues are involved. If acounselor acts on the assumption that the client thinks a CPS agency is acting in her bestinterest, the counselor may well alienate the client and close the door on what could be anopportunity for developing a therapeutic alliance. In other words, if the counselorcharacterizes the CPS agency's intentions as beneficent and its intervention as beneficial,the client may well view the counselor as naive at best, and possibly part of the 'enemycamp.' It is best to begin a dialog with the client about the role of the CPS organization.Perhaps the safest approach is for the counselor to take the position that whether or not theCPS agency's intentions are benign or its intervention is welcome, it is a force with whichthe client must deal.It is important, however, for the counselor to help the client move past denial, hurt, andanger into a working relationship with the CPS agency. She should not align or overidentifywith the client against the CPS agency.
The counselor should make it clear that his major rolein this situation will be to work with the client to ensure that the client understands andcomplies with the CPS agency's or the court's requirements regarding substance abusetreatment. To this end, the counselor should obtain a copy of the service plan and review itwith the client. The terms and requirements of the service plan can often be integratedeffectively into counseling objectives.In fact, the CPS system may have information for the treatment provider on the client'ssubstance abuse history and other relevant clinical information. Collateral information fromCPS agencies on substance abuse evaluations can be invaluable in raising the quality of theevaluation, providing accurate information, and making better treatment decisions. (Forguidelines on maintaining client confidentiality and the legal requirements involved, pleasesee.) Frequently clients do not understandthe severity of their situation and may minimize or withhold information. This may be due todrug-related cognitive impairments, low IQ, naivete regarding the legal system, or the samedenial and rationalization that sustained their addictions.Service plans may include a comprehensive treatment plan involving several agencies.
Somecommunities have established multiagency teams to coordinate support for families in crisis.In West Hawaii, for example, a multidisciplinary team is formed to assist the CPS agencyworker in high-risk or complex cases, such as severe abuse that results in hospitalization.Members of the team represent the disciplines of medicine, nursing, psychology, and socialwork. Because more than half of reported child abuse and neglect cases involve substanceabuse, a substance abuse treatment professional has recently been added to the team. The teamhelps the CPS agency worker assess the extent to which further harm is likely to befall thechild, gauge the family's motivation and capacity for change, and weigh the advisability ofvarious options for protecting the child. Team members review available documentation (such ascase histories, school reports, and medical records) in addition to contributing their ownknowledge of the family in question, providing a wide range of additional support on anas-needed basis.
Pediatricians assess the medical needs and perform comprehensive abuse,neglect, and sexual abuse exams. Consultants also provide expert witness testimony for thefamily court.The team approach can be extremely helpful to a client or family involved in the childprotective process. The team can coordinate services so that requirements, appointments, andobligations do not overwhelm the client and can reduce the number of conflicting demands theclient must meet. A team approach can be very helpful in obtaining a more complete picture ofthe client and the severity of the problem. A client often presents differently to variouspractitioners and may share different information depending on the practitioner's area ofexpertise and nature of the relationship with the client. The difficulty for a treatmentprovider is that before information may be shared with other agencies, the client must sign aconsent form permitting the program to communicate freely with specified agencies. (Inparallel fashion, the client must have signed a consent form allowing the other agency tocommunicate with the substance abuse treatment provider.
Some counselors address this byhaving the client sign the two consent forms necessary for two-way communication and sending acopy of the appropriate version to the other agency.) The other agencies must also understandthat they are prohibited by Federal regulations from redisclosing any information they receivefrom the counselor (see ). Communicating With CPS Agencies and Others After the InitialReportAlcohol and drug counselors working with parents during CPS agency investigations or courtproceedings may find that the CPS agency and others view them as a good source of information.It is important to keep two things in mind. First, substance abuse treatment programs and thechild welfare system (including both the courts and the CPS agency) have different concerns,goals, and measures of success. Once the counselor has made the initial report, her concernmust turn to the client's progress toward recovery.
While the child protective system is alsoconcerned with the client's recovery, its focus is on the child's safety and stability. Thesedifferences in primary focus mean that while the alcohol and drug counselor can help theclient achieve recovery (and thereby successfully end the involvement of the CPS agency), shecannot change either the client or the situation. Sometimes, the treatment system's interestin the client's recovery conflicts with the CPS agency's interest in protection of andpermanency planning for the child. For example, the counselor's goal of having the clientreduce his substance abuse (and allowing sufficient time for that to happen) may conflict withthe CPS agency's goal of finding a permanent placement for a child who has been in foster carefor many months.Counselors must keep in mind that they may communicate with or respond to requests forinformation only when the proposed communication conforms to one of the Federal regulations'narrow exceptions permitting a disclosure.
If a counselor fails to abide by Federalconfidentiality rules, an unpleasant and expensive lawsuit may be brought against the programand possibly the counselor. Moreover, if word spreads that the program fails to protectinformation about its clients, it may have a difficult time in retaining its clients'confidence and in attracting new clients into its treatment services (as well as thepossibility of professional sanctions and relicensing difficulties).The following discussion about communicating with parts of the child welfare and legalsystems relies heavily on four exceptions to the Federal regulations that permit disclosures:. Dealing With CPS Agencies, Courts, and LawEnforcementAll professionals who work in the field of substance abuse treatment are aware that theirclients have serious problems that may involve procuring and using illicit drugs. Abuse ofsuch illicit substances interferes with their lawful behavior and, when they are parents,interferes with responsible parenting. Treatment providers, therefore, will often need to interact with the legal andchild protective systems.
The way in which counselors interact with these agencies will varyfrom case to case. The counselor may have to contact a CPS agency to report a client suspectedof child abuse, or the legal system may contact the counselor for information about a client'sparticipation in a treatment program. Whatever the nature of the interaction with CPS agenciesor the legal system, counselors need to be aware of their legal responsibilities.The following subsections discuss how the counselor should deal with various agencies. Inall of these circumstances, the Consensus Panel recommends that counselors (1) ask for theirsupervisor's guidance on what boundaries to keep, (2) consult their client, (3) use commonsense, and (4) consult State law (or a lawyer familiar with State law). Communicating with a CPS agencyEven if a CPS agency has sent the program a Request for Information Release that the clienthas already signed, if the form does not comply with §2.31 of the Federal confidentialityregulations, the counselor may not release any information. (For a sample form that complieswith the Federal regulations, see.) Evenif the form complies with the Federal requirements, the counselor should remember that asigned consent form does not require her to disclose any information.
The counselor shouldstill evaluate the appropriateness of the request in the context of its impact on theclient's treatment.First, after getting the client's written consent to do so, the counselor should consultwith the client's lawyer. (Some clients may not be aware that they have the right to anattorney when custody of their children is being questioned.) The counselor should ask thelawyer whether she has objections to the program's making a disclosure and whether she thinksit is in the client's interest for the program to disclose the requested information. Thelawyer may be pleased to know that the Federal confidentiality regulations provide a way tolimit the kind of information disclosed. If the lawyer has no objections, the counselor cansimply have the client sign a valid consent form, making sure to limit the scope of thedisclosure as appropriate (and as the regulations require).
If the lawyer does have anobjection, then it is best to let her take the lead.If the client has signed a proper consent form authorizing the counselor to communicatewith the caseworker at the CPS agency, how much information should the counselor disclose andhow active a role should he take? In some cases, disclosing information to the CPS agency orcourt will benefit the client. It may also help the client if the counselor participates indeveloping a service plan for the family. However, it is up to the client and the lawyer, notthe counselor, to determine whether communication or cooperation with a CPS agency willbenefit the client. Therefore, it is essential that the counselor communicate with theclient's attorney before taking it upon himself to communicate with a CPSagency.Counselors should avoid using a standard report form in communicating with a CPS agency,unless the form calls for a limited amount of relevant, objective data. Each case isdifferent, and a one-size-fits-all approach may hurt the client. It is best to think througheach case on its own terms-with the help of the client's lawyer and with appropriatesupervision.
Sometimes, however, CPS agencies only need to know whether the client isparticipating in treatment, what the program's expectations are, if the client'sparticipation has been satisfactory, the extent of drug involvement, and whether the clienthas complied with specific directives the treatment provider may have made. Responding to lawyers' inquiriesIf a lawyer calls to find out about a client's treatment history or current treatment,unless the client has consented in writing to the counselor's communicating with the lawyer,the counselor must tell the lawyer, 'I'm sorry. I can't respond to that question right now.Can I have your telephone number and call you back at another time?' This is because theFederal confidentiality regulations prohibit any other response without the client's writtenconsent. The regulations view any response indicating that the person in question is thecounselor's client as a disclosure that the person is in fact in substance abuse treatment.This applies even if the lawyer already knows that the client is in treatment.A firm but polite tone is best. If confronted by what could be characterized as'stonewalling,' a lawyer may be tempted to subpoena the requested information and more.
Thecounselor will not want to provoke the lawyer into taking action that will harm the client.Even if the counselor has the client's written consent to speak with the lawyer, she may findit helpful to consult with the client before having a conversation about him. The lawyer canbe told, 'I'm sure you understand that I am professionally obligated to speak with thisperson before I speak with you.' It will be hard for any lawyer to disagree with thisstatement.The counselor should then speak with the client to ask whether the client knows whatinformation the caller is seeking and whether the client wants her to disclose that or anyother information. She should leave the conversation with a clear understanding of theclient's instructions-whether she should disclose the information and, if so, how much andwhat kind. It may be that the lawyer is representing the client and the client wants thecounselor to share all the information she has. On the other hand, the lawyer may representthe CPS agency, the prosecuting attorney, or some other party with whom the client is notanxious to share information.
There is nothing wrong with refusing to answer a lawyer'squestions.If the lawyer represents the client and the client asks the counselor to share allinformation, the counselor can speak freely with the lawyer once the client signs a properconsent form. However, if the counselor is answering the questions from a lawyer who doesnot represent the client (but the client has consented in writing to thedisclosure of some information), the counselor should listen carefully toeach question, choose her words with care, limit each answer to the question asked, and takecare not to volunteer information not called for. If the lawyer asking for informationrepresents the prosecuting attorney, the counselor should consult both the client and hislawyer, as well as the program's legal counsel before responding to any questions. Responding to subpoenasSubpoenas come in two forms. One is an order requiring a person to testify, either at adeposition out of court or at a trial.
The other-known as a subpoena ducestecum-requires a person to appear with the records listed in the subpoena.(Depending on the State, a subpoena can be signed by a judge or filled out by a lawyer andstamped by a court clerk.) Unfortunately, it can neither be ignored nor automatically obeyed.When a subpoena is received, the counselor should call the client about whom he is asked totestify or whose records are sought and ask what the subpoena is about. It may be that thesubpoena has been issued by or on behalf of the client's lawyer, with her consent. However,it is equally possible that the subpoena has been issued by or on behalf of the CPS agency'slawyer (or the lawyer for another adverse party). If that is the case, the counselor's bestoption is to consult with the client's lawyer (if the client has signed a consent form) tofind out whether the lawyer will object (i.e., ask the court to 'quash' the subpoena) orwhether the counselor should simply obtain the client's written consent to testify or turnover her records. An objection can be based on a number of grounds and can be raised by anyparty, as well as by the person whose treatment information is sought. Often, the counselormay assert the client's privilege for her.If the program has an attorney to represent it or an attorney who is willing to provideadvice on issues like these, the counselor could seek his advice. As is detailed in, the best way to handle this arrangement isfor the program and the lawyer to sign a 'Qualified Service Organization Agreement' (§§2.11,2.12(c)(4)), which permits the program to communicate information to a person or agency thatprovides services to the program.
Project Connect Coordinating CommitteeIn Rhode Island, the Project Connect Coordinating Committee meets monthly to explore andestablish linkages between treatment agencies. Its members include representatives of theDepartment of Children, Youth, and Families (DCYF); the Department of Health, Division ofSubstance Abuse; substance abuse treatment providers; health care providers; staff fromperinatal addiction programs funded by the Center for Substance Abuse Prevention; and stafffor Project Connect. Among the project's accomplishments are the following:. Communicating with the courtSometimes, the court hearing a client's case will ask a treatment program to write a reportabout his progress in treatment. Or a client's lawyer may ask an agency to submit a letter tothe court to support a disposition she is advocating. In any letter it submits, the agencyshould limit itself to reporting factual information, such as client attendance and urinetoxicology screen results; it should not speculate on the future of the client or theclient's family. Nor should it offer an opinion as to where the child should be placed.
Ofcourse, any information the agency releases in the form of a letter-report must be limited tothe kind and amount of information the client agreed to have released when he signed theconsent form. Moreover, the agency should consult with the client's attorney to ensure theletter covers the areas of concern and will do no damage.What should a counselor do if the client is continuing to abuse the child, the counselorknows this, and the counselor is asked to submit a report? Responding to inquiries by law enforcementIf a client faces criminal child abuse or neglect charges, a police officer, detective, orprobation officer may pay the counselor a visit. If any of these officials asks a counselorto disclose information about a client or her treatment records, the counselor should handlethe matter in the same way he would handle it with a lawyer.
The counselor should tell theofficer, as he might a lawyer, 'I can't tell you if I have a client with that name. I'll haveto check my records.' Of course, if the client was mandated into treatment in lieu ofprosecution or incarceration and has signed a criminal justice system consent formauthorizing communication with the mandating agency, program staff may be obligated to speakwith someone from that agency. (See discussion in.)If the officer's inquiry has come unexpectedly, the counselor should determine from theclient whether she knows the subject of the officer's inquiry; whether she wants thecounselor to disclose information and, if so, how much and what kind; and whether there areany particular areas the client would prefer she not discuss with theofficer.
Again, the counselor must obtain written consent from the client before he speakswith the officer. If the client has a criminal case pending against her, it is best to checkwith her lawyer, too. Maintaining Working Relationships With CPS Agencies andOthersWhile a treatment program and a CPS agency may have conflicts regarding certain clients'cases, the program needs to maintain a good working relationship with the CPS agency and otheragencies involved in the child protection system.
Every summer Texas holds an annual Institute on Alcohol and Drug Abuse 2-week event thatusually has 1,500 attendees per week. Numerous private and nonprofit providers have boothsto exhibit their services. Bookstores exhibit and sell literature on such subjects assubstance abuse, health, mental health issues, marriages, relationships, cultures, andmotivational stories. A 'Best Practices Conference' is held in the winter with about 1,200people in attendance.
Trainings are provided throughout the year in various regions of theState to make attendance convenient and more cost-effective for the providers. Community Advisory Boards are an effective method of interagency collaboration andnetworking.
California Child Abuse Laws
The integrated family treatment program in San Antonio, Texas, has an activeCommunity Advisory Board with representatives from the CPS system, Criminal Justice System,District Attorney's office, Family Violence Unit, Health Department, battered women'sshelters, and other support agencies. Monthly meetings are held to exchange ideas andprogrammatic information, develop advocacy for substance-using women within theirrespective agencies, and gain an understanding of how each local system works.
California Child Sexual Abuse Laws
In Connecticut, the Alcohol and Drug Policy Council created a Women and Children'sClient-Based Model. The various State agencies have been meeting to discuss implementingthe model.
There are monthly meetings of Child Protective Services Substance Abuse RegionalResource Consultants (psychiatric social workers with substance abuse certification who areinternal consultants to the CPS agency) with the substance abuse case managers for womenand children to go over cases and resources. Both systems fund services for the population.The CPS system funds Project SAFE (Substance Abuse Family Evaluation), which is a statewidesystem to screen and provide priority access for evaluation and outpatient substance abusetreatment for clients in the CPS system. Another project, Supportive Housing for RecoveringFamilies, provides housing assistance for clients who have successfully completedresidential treatment and are planning to reunify with their families.
The Alcohol and DrugPolicy Council also recommends cross-training between substance abuse treatment programsand CPS agencies. Some of the major issues are how to make treatment systems more familyfocused and how to break down the traditional barriers in funding and measures. The Child Welfare League of America has published a book called Responding toAlcohol and Other Drug Problems in Child Welfare that includes many referencesand resources.More needs to be done, however. Many State legislatures still view substance abusers ascriminals, not people who have a disease. With busy schedules and limited financial resources,law enforcement officials often prefer incarcerating individuals, where treatment is limited.(For more information on substance abuse treatment and criminal offenders, refer to TIP 30,Continuity of Offender Treatment for Substance Use Disorders From Institution toCommunity.)Education is a two-way street. Treatment programs may benefit from training provided byother agencies, including CPS agencies and law enforcement organizations. Civic organizations,such as the Rotary Club, often have a speaker's bureau that may recommend a local expert in aparticular field who would speak pro bono.