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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5815

November 14, 1980

CHILD PROTECTION LAW:

Persons required to report alleged child abuse or neglect

Protection of identity of reporting persons

Sexual child abuse

A psychologist or certified psychological examiner may report alleged child abuse or child neglect, but is not required by law to do so.

A vaginal infection in a small child based upon a smear and culture may serve to indicate sexual abuse which would place an obligation upon the examining physician or medical examiner to report suspected child abuse or child neglect.

A protective service worker may be held criminally liable for improperly disclosing the name of a person filing the suspected child abuse or child neglect report.

Honorable Perry Bullard

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on the following questions as they relate to the Child Protection Law, 1975 PA 238; MCLA 722.621 et seq; MSA 25.248(1) et seq:

1. Is a psychologist or certified psychological examiner 'required' to report child abuse under Section 3 of the Act, or 'permitted' to do so under Section 4?

2. For purposes of Section 3(7) of the Act, is a vaginal infection in a small child (four years), which is of unknown origin, 'reasonable cause to suspect child abuse and neglect'?

3. What recourse, if any, does the professional reporting source have if a protective service worker reveals the identity of the reporting source to a parent in violation of Section 5?

1975 PA 238, supra, Sec. 3(1), as last amended by 1978 PA 573, enumerates the following persons who are required to report child abuse to the Department of Social Services:

'A physician, coroner, dentist, medical examiner, nurse, audiologist, certified social worker, social worker, social work technician, school administrator, school counselor or teacher, law enforcement officer, or duly regulated child care provider who has reasonable cause to suspect child abuse or neglect immediately, by telephone or otherwise, shall make an oral report, or cause an oral report to be made, of the suspected child abuse or neglect to the department. . . .'

The foregoing provision fails to list psychologist among those persons who must report child abuse to the Department of Social Services. Where the Legislature enumerates professional and other persons having contact with children, and fails to include psychologists within the list, psychologists are excluded from the obligation of reporting child abuse. See Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971).

Thus, the Legislature has not mandated psychologists to report suspected child abuse to the Department. It should be noted, however, that if the psychologist is also serving as a school counselor as listed in 1975 PA 238, Sec. 3(1), supra, and if he or she has reasonable cause to suspect child abuse while acting in a school counselor role, the suspected child abuse or child neglect must be reported.

It is also appropriate to consider 1975 PA 238, supra, Sec. 4, which, in pertinent part, provides:

'In addition to those persons required to report child abuse or neglect under section 3, any person, including a child, who has reasonable cause to suspect child abuse or neglect may report the matter. . . .' (Emphasis added.)

Thus, any person, including a psychologist or a certified psychological examiner, may report suspected child abuse or child neglect under the Child Protection Law, supra.

It is my opinion, therefore, that neither psychologists nor psychological examiners are required under 1975 PA 238, supra, to report suspected child abuse or child neglect to the Department of Social Services, but may do so if they have reasonable cause to suspect child abuse or neglect.

In your second question you inquire whether a vaginal infection of unknown origin in a four-year-old child constitutes reasonable cause to suspect child abuse or child neglect under 1975 PA 238, Sec. 3(7), supra.

The Legislature has defined the terms 'child abuse' and 'child neglect' in 1975 PA 238, supra, Sec. 2, as follows:

'(b) 'Child abuse' means harm or threatened harm to a child's health or welfare by a person responsible for the child's health or welfare which occurs through nonaccidental physical or mental injury, sexual abuse, . . . or maltreatment.

'(c) 'Child neglect' means harm to a child's health or welfare by a person responsible for the child's health or welfare which occurs through negligent treatment, including the failure to provide adequate food, clothing, shelter, or medical care.'

In 1975 PA 238, Sec. 3(7), supra, as added by 1978 PA 573, the Legislature has provided:

'For purposes of this act the presence of a venereal disease in a child who is less than 12 years of age shall be reasonable cause to suspect child abuse and neglect.'

The Legislature has defined the term 'venereal disease' in the Public Health Code, 1978 PA 368, Sec. 5201(1)(b); MCLA 333.15201; MSA 14.15(15201), as follows:

"Veneral disease' means syphilis, gonorrhea, chancroid, lymphogranuloma venereum, granuloma inguinale, and other sexually transmitted diseases which the department by rule may designate and require to be reported.'

Diagnosis by a competent professional that a minor child under the age of 12 years is suffering from syphilis, gonorrhea, chancroid, lymphogranuloma venereum, granuloma inguinale, or other sexually transmitted disease would serve as reasonable cause to suspect child abuse or child neglect of such child.

In addition, disagnosis of a vaginal infection by a competent professional when based upon a smear and culture may serve as a reasonable basis to indicate sexual abuse which would place an obligation upon the physician or medical examiner to report suspected child abuse or child neglect. Absent the smear and culture, there would be no reasonable basis to report child abuse or child neglect in such case.

Therefore, in answer to your second question, it is my opinion that diagnosis of a venereal disease or a vaginal infection based upon smear and culture indicating sexual abuse of a minor child under the age of 12 years would require a report of suspected child abuse or child neglect to be filed with the Department of Social Services.

In your third question, you ask what recourse, if any, the professional reporting source would have if a protective service worker reveals the identity of the reporting service to the parent in violation of 1975 PA 238, Sec. 5, supra. I presume by 'recourse' you mean what protection, if any, does 1975 PA 238, supra, accord to a person who has reported suspected child abuse or child neglect against disclosure of his or her identity.

1975 PA 238, Sec. 7(1), supra, directs the Department of Social Services to:

'. . . maintain a central registry system to carry out the intent of this act. . . .'

This section, which places jurisdiction and control of the central registry with the Department, further provides that information from this registry is to be divulged only to the following persons or organizations:

'(a) A legally mandated public or private child protective agency investigating a report of known or suspected child abuse or neglect.

'(b) A police or other law enforcement agency investigating a report of known or suspected child abuse or neglect.

'(c) A physician who has before him a child whom the physician reasonably suspects may be abused or neglected.

'(d) A person legally authorized to place a child in protective custody when the person has before him a child whom the person reasonably suspects may be abused or neglected and the information is necessary to determine whether to place the child in protective custody.

'(e) An agency having the legal responsibility or authorization to care for, treat, or supervise a child who is the subject of a report or record, or a parent, guardian, or other person who is responsible for the child's welfare.

'(f) A person named in the report or record, if the identity of the reporting person is protected pursuant to section 5.

'(g) A court which determines the information is necessary to decide an issue before the court.

'(h) A grand jury which determines the information is necessary in the conduct of its official business.

'(i) A person engaged in a bona fide research purpose. Information identifying a person named in the report shall not be made available to the research applicant unless the department has obtained that person's written consent. A research applicant shall not conduct a personal interview with a family without their prior consent and shall not disclose information which would identify the child or the child's family or other identifying information.' (Emphasis added.)

1975 PA 238, supra, Sec. 13(3), states:

'A person who permits or encourages the unauthorized dissemination of information contained in the central registry and in reports and records made pursuant to this act is guilty of a misdemeanor.'

This provision must be read in tandem with 1975 PA 238, supra, Sec. 5, which, in pertinent part, provides:

'The identity of a reporting person shall be confidential subject to disclosure only with the consent of that person or by judicial process. A person acting in good faith who makes a report or assists in any other requirement of this act shall be immune from civil or criminal liability which might otherwise be incurred thereby. A person making a report or assisting in any other requirement of this act shall be presumed to have acted in good faith. This immunity from civil or criminal liability extends only to acts done pursuant to this act and does not extend to a negligent act which causes personal injury or death or to the malpractice of a physician which results in personal injury or death.' (Emphasis added.)

It is my opinion, therefore, that where a protective service worker improperly discloses the name of the person filing the suspected child abuse or child neglect report contained in the central registry, in contravention of 1975 PA 238, Sec. 13(3), supra, the worker may be held criminally liable under that section.

Frank J. Kelley

Attorney General


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