What is the duty to report child abuse/neglect in Texas?

Many parents, grandparents, and even professionals do not fully understand their duty to report child abuse let alone the consequences for their failure to report.  But what about such duty to report of just an ordinary person?  That is right; ANYONE who has knowledge or reason to believe that a child is being abused in any way must report it to the appropriate agency.  That agency would be the Texas Department of Family and Protective Services, your local law enforcement and even your local district attorney’s office.  The family code does not exclude anyone in the duty to report.  Examples of professionals would be teachers, attorneys, doctors, nurses, and daycare employees.

Chapter 261 of the Texas Family Code encompasses the duty to report, definitions, etc.  Once you have determined what abuse or neglect means in Texas, and you know a child who is being subjected to such acts, you must report it.   Unfortunately, many of the cases we see are children being sexually or physically abused.  Once you learn of this abuse, what do you need to do?

Texas Family Code Section 261.101 legislates and defines those who are required to report as follows:

Sec. 261.101.  PERSONS REQUIRED TO REPORT; TIME TO REPORT.  (a)  A person having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.

(b)  If a professional has cause to believe that a child has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the professional has cause to believe that the child has been abused as defined by Section 261.001 or 261.401, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code.  A professional may not delegate to or rely on another person to make the report.  In this subsection, “professional” means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children.  The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.

(c)  The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services.

(d)  Unless waived in writing by the person making the report, the identity of an individual making a report under this chapter is confidential and may be disclosed only:

(1)  as provided by Section 261.201;  or

(2)  to a law enforcement officer for the purposes of conducting a criminal investigation of the report.

Many people fail to report child abuse or neglect because they are afraid of the backlash that they may receive.  In fact, some people talk themselves out of it saying that they cannot be certain about it and they worry about what if they are wrong, what will happen to them.  The definition is clear—“cause to believe”.  Did the child show up at school with bruises on their backside or on their face?  The important thing to know is that you cannot get in trouble if you have a reason to believe that the abuse is taking place.  In fact, Texas Family Code Section 261.106 makes that abundantly clear.

Sec. 261.106.  IMMUNITIES.  (a)  A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.

(b)  Immunity from civil and criminal liability extends to an authorized volunteer of the department or a law enforcement officer who participates at the request of the department in an investigation of alleged or suspected abuse or neglect or in an action arising from an investigation if the person was acting in good faith and in the scope of the person’s responsibilities.

(c)  A person who reports the person’s own abuse or neglect of a child or who acts in bad faith or with malicious purpose in reporting alleged child abuse or neglect is not immune from civil or criminal liability.

The worse thing to worry about is what would happen to you if you did not report and someone found out.  We see this arise a lot when it comes to grandparents or even parents.  A court case will begin on instances of abuse; however, the person claiming the abuse failed to make a report to the appropriate agency.  It is a crime, one which can be pursued against you.

Sec. 261.109.  FAILURE TO REPORT; PENALTY.  (a)  A person commits an offense if the person has cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter.

(b)  An offense under this section is a Class A misdemeanor, except that the offense is a state jail felony if it is shown on the trial of the offense that the child was a person with mental retardation who resided in a state supported living center, the ICF-MR component of the Rio Grande State Center, or a facility licensed under Chapter 252, Health and Safety Code, and the actor knew that the child had suffered serious bodily injury as a result of the abuse or neglect.

The issue arises when people start making reports to spite one another.  For instance, we have had several instances of divorces where parents make sexual abuse claims against the other parent involving one or all of the children part of the divorce.  This happens because both parents might be competing for the exclusive right to designate primary residence.  However, many people do not realize that this is in fact a crime.

Sec. 261.107.  FALSE REPORT; CRIMINAL PENALTY; CIVIL PENALTY.  (a)  A person commits an offense if, with the intent to deceive, the person knowingly makes a report as provided in this chapter that is false.  An offense under this subsection is a state jail felony unless it is shown on the trial of the offense that the person has previously been convicted under this section, in which case the offense is a felony of the third degree.

(b)  A finding by a court in a suit affecting the parent-child relationship that a report made under this chapter before or during the suit was false or lacking factual foundation may be grounds for the court to modify an order providing for possession of or access to the child who was the subject of the report by restricting further access to the child by the person who made the report.

(c)  The appropriate county prosecuting attorney shall be responsible for the prosecution of an offense under this section.

(d)  The court shall order a person who is convicted of an offense under Subsection (a) to pay any reasonable attorney’s fees incurred by the person who was falsely accused of abuse or neglect in any proceeding relating to the false report.

(e)  A person who engages in conduct described by Subsection (a) is liable to the state for a civil penalty of $1,000.  The attorney general shall bring an action to recover a civil penalty authorized by this subsection.

If you have any knowledge of child abuse or neglect, report it today.  Do not wait until you have hard proof, all you need is “cause to believe.”  You may be saving a child’s life.  For your convenience, you can contact the Texas Department of Family and Protective Service’s child abuse hotline at 1-800-252-5400.  If your case involves a situation in which you believe you would want to seek custody of this child, contact us today at Guest & Gray to schedule a consultation regarding your family law case.  Understand, however, that if you have not reported the child abuse then even our attorneys have the duty to report the said abuse.  It is never too late to make the right decision.  We look forward to helping you.