Child Abuse Reporting Law Does Not Provide Immunity to School Counselor or District for Confidentiality Breach

November 2013

The provisions of the Child Abuse and Neglect Reporting Act (“CANRA”) granting immunity to mandated reporters for making a report of known or suspected child abuse do not extend to circumstances in which the reporter’s conduct violates CANRA’s confidentiality provisions, the California Court of Appeal has concluded.  (Cuff v. Grossmont Union High School Dist., et al. (11/18/13, No. D062278).  The court reversed an order that had dismissed a claim for invasion of privacy against a school counselor and her employer school district stemming from an alleged improper disclosure of a Suspected Child Abuse Report.

The facts surrounding the decision are as follows: Tina Cuff and her former husband, James Godfrey, have two children, ages 13 and 16.  In October 2009, while Cuff was at work, Godfrey went with the children to their school.  The boys met with school counselor, Susan Saunders, outside of Godfrey’s presence and reported that they were being verbally and physically abused by their mother.  

In her role as a school counselor, Saunders is a “mandated reporter” as defined by CANRA.  Based on the information she received from the children, Saunders prepared a “Suspected Child Abuse Report,” which she faxed to Child Welfare Services (“CWS”).  CWS instructed Saunders to contact a law enforcement officer who could take the boys into protective custody.  Saunders discussed the matter with a school resource officer who assisted Saunders in contacting other governmental agencies for directions as to how to proceed.  According to Saunders, “someone” suggested she give a copy of the report to Godfrey so that he could take the children to the sheriff’s department.

Saunders made a copy of the report and gave it to Godfrey.  Instead of taking the children to a law enforcement agency, Godfrey filed for a protective order against Cuff and sought custody of both boys.  Although Cuff ultimately retained custody, she sued Saunders and Grossmont Union High School District (“GUHSD”), alleging invasion of privacy based on a violation of CANRA.  The Superior Court of San Diego County dismissed the claim, concluding both Saunders and GUHSD could not be liable for releasing the report to Godfrey.

Reversing the dismissal, the Court of Appeal determined that Saunders was not immune from liability for her conduct and, as such, GUHSD also may be vicariously liable for the conduct of its employee.

The court summarized the provisions of CANRA, noting that it requires mandated reporters to file a report of suspected abuse with specific law enforcement agencies.  CANRA states that all reports must be confidential, lists agencies and individuals to whom a report may be disclosed, and provides a criminal penalty for any violation of confidentiality.  Section 11172 of CANRA provides for civil and criminal immunity to mandated reporters for the act of making the report.

However, the court stated that while a mandated reporter may not be sued for making a required report to an authorized agency, the immunity provision of CANRA “clearly does not immunize a [mandated] reporter’s conduct that does not comply with the strict confidentiality provisions of the statute.”  The immunity section of CANRA is not so broad as to immunize Saunders for disclosing the report to a person who is not an authorized recipient, the court observed.

The Court of Appeal also rejected the contention by Saunders and GUHSD that Saunders is immune from liability pursuant to a provision in the Education Code that allows for the release of student records in an emergency situation.  It stated that to interpret the Education Code as including a Suspected Child Abuse Report as a “pupil record,” which could allow access to the report by persons to whom a disclosure is not permitted by CANRA, would undermine the specific confidentiality provisions of that law.

Finally, the court concluded that Government Code section 820.2 did not entitle Saunders to immunity from Cuff’s lawsuit.  That section applies to an act or omission that resulted from the exercise of discretion vested in the employee.  It does not provide immunity to “lower level decisions that merely implement a basic policy already formulated.”  Here, the court observed, CANRA strictly limits to whom a mandated reporter may provide a report.  “Saunders’ conduct in giving a copy of [the report] to Godfrey is precisely the kind of ‘lower level decision’ that constitutes the implementation of ‘a basic policy’ that had ‘already been formulated,’ as opposed to creation of the policy itself,” the court stated.

This case serves as a reminder to districts to ensure that individuals who are mandated reporters under CANRA are trained and informed as to the requirements of the law and are knowledgeable about its confidentiality requirements.

If you have any questions regarding this case or about any provision of CANRA, please call one of our six offices.

F3 NewsFlash prepared by Kimberly A. Smith and John W. Norlin.
Kimberly is a partner in the F3 Los Angeles office.
John is Special Counsel in the F3 San Diego office.

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