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 - http://www.ag.state.mi.us)

STATE OF MICHIGAN

BILL SCHUETTE, ATTORNEY GENERAL

The definition of “child abuse” in the Child Protection Law, MCL 722.622(f), includes choking, regardless of whether it results in death or only some other physical injury to a child, if the choking is nonaccidental and perpetrated by a person identified in the statute. Section 3(1)(a) of the Child Protection Law, MCL 722.623(1)(a), imposes a duty on a community mental health professional to report suspected child abuse that may have resulted in the death of a child, regardless of when the abuse and death occurred. A mental health professional would have a duty to report suspected child abuse about which the professional received knowledge during the provision of mental health services. Although section 748(1) of the Mental Health Code, MCL 330.1748(1), generally protects from disclosure records or information acquired by a mental health professional during the course of providing mental health services, that provision does not protect records or information revealing suspected child abuse or neglect that a mental health professional would have a duty to report under section 3(1)(a) of the CPL, MCL 722.623(1)(a).

Opinion No. 7264

April 24, 2012

Honorable Richard E. Hammel
State Representative
The Capitol
Lansing, MI 48909

You have asked several questions concerning the reporting or disclosing of child abuse under the Child Protection Law (CPL), 1975 PA 238, MCL 722.621 et seq., and the Mental Health Code, MCL 330.1001 et seq.

The broad purpose of the CPL is to prevent child abuse and neglect. Becker-Witt v Bd of Examiners of Social Workers, 256 Mich App 359, 364; 663 NW2d 514 (2003), citing Williams v Coleman, 194 Mich App 606, 614-615; 488 NW2d 464 (1992). To effectuate that purpose, the act defines conduct that is abusive or neglectful, and establishes methods for the reporting to, and the investigation of, instances of abuse and neglect by the Department of Human Services. See, e.g., Michigan Ass’n of Intermediate Special Educ Administrators v Dep’t of Social Services, 207 Mich App 491; 526 NW2d 36 (1994). The reporting requirement is a crucial component of the CPL. After reviewing various amendments expanding the CPL’s reporting provision, one court stated, “[t]hrough this evolutionary process, the Legislature made clear its intent to have a strong reporting system.” Williams, 194 Mich App at 615. And as explained in People v Beardsley, 263 Mich App 408, 413-414; 688 NW2d 304 (2004), the purpose of the reporting requirement is to protect children from abuse perpetrated by those who would normally act as protectors of children:

The preamble to the CPL states that the purpose of the CPL is, in part, “to require the reporting of child abuse and neglect by certain persons.” The statute’s definition of “child abuse,” which identifies parents and others responsible for a child’s health and welfare, reflects the statute’s purpose of protecting children in situations where abuse and neglect frequently go unreported, i.e., when perpetrated by family members or others with control over the child. Hence, reports are required to be made to the [the Department] rather than to the police, which would be the appropriate agency to contact in the case of . . . abuse involving a person without any familial contacts or other authority over the child. Typically, parents, teachers, and others who are responsible for the health and welfare of a child will be the first to report instances of child abuse by unrelated third parties. This act is designed to protect children when the persons who normally do the reporting are actually the persons responsible for the abuse, and thus unlikely to report it. [Emphasis added.]

“In other words, the imposition of a duty to report suspected child abuse . . . is based, not on the occurrence of such abuse, but on the type of relationship the alleged perpetrator has with the minor child.” Doe v Doe, 289 Mich App 211, 216; ___ NW2d ___ (2010). As a remedial statute that protects the public health and general welfare, the CPL should be liberally construed. Williams, 194 Mich App at 612, citing Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 740; 330 NW2d 346 (1982), citing 3 Sands, Sutherland Statutory Construction (4th ed.), § 65.03, p 163.

You first ask whether the death of a child as a result of abuse, specifically choking, constitutes “child abuse” as defined in section 2(f), MCL 722.622(f), of the CPL.

The primary goal of interpreting statutes is to ascertain and give effect to the Legislature’s intent. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). Effect must be given to the interpretation that accomplishes the statute’s purpose. People v Adair, 452 Mich 473, 479-480; 550 NW2d 505 (1996). Statutes are construed in their entirety, and provisions must be read in the context of the entire statute so as to produce a harmonious whole. Macomb County Prosecutor v Murphy, 464 Mich 149, 159; 627 NW2d 247 (2001). Furthermore, in interpreting a statute, both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme must be considered. Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999).

The CPL defines “child” as “a person under 18 years of age,” MCL 722.622(e), and defines “child abuse,” in relevant part, as:

[H]arm . . . to a child’s health . . . that occurs through nonaccidental physical . . . injury . . . or maltreatment, by a parent, a legal guardian, or any other person responsible for the child’s health or welfare or by a teacher, a teacher’s aide, or a member of the clergy. [MCL 722.622(f); emphasis added.]

The statute does not expressly reference “death” within the definition of child abuse. But it was not necessary to do so. The death of a child is certainly “harm . . . to a child’s health” of the worst kind.¹ Thus, with respect to the choking referred to in your request, if the act was “nonaccidental” and perpetrated by a person listed in the definition, it was “child abuse,” regardless of whether the incident resulted in the child’s death or only physical injury. In other words, an act involving the death of a child constitutes “child abuse” under the CPL if the facts reveal that the death resulted from nonaccidental physical injury perpetrated by a listed individual.

It is my opinion, therefore, that the definition of “child abuse” in the CPL, MCL 722.622(f), includes choking, regardless of whether it results in death or only physical injury to a child, if the choking is nonaccidental and perpetrated by a person identified in the statute.

You next ask whether section 3(1)(a) of the CPL, MCL 722.623(1)(a), imposes a duty on a community mental health professional to report suspected child abuse that results in the death of the child where the abuse and death occur several years before the mental health professional learns of the suspected abuse.

Although your request does not identify a particular category of community mental health professional,² the Mental Health Code defines the term “mental health professional” to include six categories of licensed professionals. See MCL 330.1100b(14)(a) through (f). Under section 3(1)(a) of the CPL, all of these “mental health professional[s]” are required to report³ “suspected child abuse”:

A physician, . . . nurse, . . . psychologist, marriage and family therapist, licensed professional counselor, . . . [and] licensed master’s social worker, . . . who has reasonable cause to suspect child abuse . . . shall make immediately . . . an oral report, or cause an oral report to be made, of the suspected child abuse . . . to the [Department of Human Services]. [MCL 722.623(1)(a); emphasis added.]⁴

Again, the term “child abuse,” in relevant part, “means harm or threatened harm to a child’s health or welfare that occurs through nonaccidental physical . . . injury . . . or maltreatment,” by one of the persons listed in the statute. MCL 722.622(f).

The phrase “harm or threatened harm” in section 2(f) plainly includes both harm to a child that has already occurred, and present or future harm to a child. In the situation you describe, the deceased child suffered a past incident of harm. Consistent with the discussion above, if the death or injury stems from a nonaccidental physical injury perpetrated by an individual listed in section 2(f), then the past incident constitutes “child abuse.” Nothing in section 2(f) suggests that an act of child abuse is no longer abuse if the child is deceased at the time of disclosure, nor may such a limitation be read into the statute. See, e.g., Roberts v Mecosta County Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002), citing Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999) (“[n]othing may be read into a statute that is not within the manifest intent of the Legislature as derived from the language of the statute itself.”). Similarly, section 3(1)(a) does not condition reporting on whether the child is still alive at the time an individual required to report child abuse is assessing his or her duty under the statute. Rather, a mandatory reporter, such as a mental health professional, must immediately report child abuse if the professional has reasonable cause to suspect that an act of child abuse occurred. The statute does not expressly require that the child survive the abuse in order for the act to qualify as a reportable event, and, as above, no such requirement may be read into the statute. Roberts, 466 Mich at 63.⁵

This analysis is supported by the fact that under section 8, MCL 722.628, the Department of Human Services must contact law enforcement officials if the cause of a child’s death is suspected to be from abuse or neglect, and continue its own investigation. Section 8(3)(a) states, in relevant part:

(3) In conducting its investigation, the department shall seek the assistance of and cooperate with law enforcement officials within 24 hours after becoming aware that 1 or more of the following conditions exist:

(a) Abuse or neglect is the suspected cause of a child’s death. [MCL 722.628(3)(a).]

Section 8(5) provides that the involvement of law enforcement officials “does not relieve or prevent the department from proceeding with its investigation . . . if there is reasonable cause to suspect that the child abuse or neglect was committed by a person responsible for the child’s health or welfare.” MCL 722.628(5). Thus, the death of a child does not preclude or excuse an investigation of suspected child abuse or neglect reported to the Department of Human Services.⁶

This determination is also consistent with the inclusion of medical examiners as persons required to report suspected child abuse under section 3(1)(a). MCL 722.623(1)(a). The duty of a medical examiner includes investigating deaths that occur by violence, are unexpected, or occur outside the presence of a physician. MCL 52.202. A medical examiner would generally discover an act of suspected child abuse only after the child’s death and during the examiner’s investigation. Accordingly, the inclusion of medical examiners as mandatory reporters further demonstrates that the Legislature intended to require the reporting of suspected child abuse, even if the child dies before any report can be made.

Thus, with respect to your question, the lapse of several years between the child’s death and the revelation of the suspected child abuse does not negate the mental health professional’s duty to report. Whether a report under such circumstances will prove productive is not a determination a mental health professional is free to make under section 3(1)(a) of the CPL. See People v Cavaiani, 172 Mich App 706, 715; 432 NW2d 409 (1988). Rather, that determination belongs to the Department of Human Services and other investigative agencies. Id.⁷ As the Court of Appeals explained in Cavaiani, a mandatory reporter “is not free to arrogate to himself the right to foreclose the possibility of a legal investigation by the state. The state has different interests, and its sovereignty is offended by child abuse.” Id.⁸

It is my opinion, therefore, that section 3(1)(a) of the CPL, MCL 722.623(1)(a), imposes a duty on a community mental health professional to report suspected child abuse that may have resulted in the death of a child, regardless of when the abuse and death occurred.

You next ask whether an incident of suspected child abuse disclosed by a recipient of mental health services to a community mental health professional during the course of providing mental health services is confidential information under section 748(1) of the Mental Health Code, MCL 330.1748.

With respect to such information, MCL 330.1748(1) provides:

Information in the record of a recipient, and other information acquired in the course of providing mental health services to a recipient, shall be kept confidential and shall not be open to public inspection. The information may be disclosed outside the department, community mental health services program, licensed facility, or contract provider, whichever is the holder of the record, only in the circumstances and under the conditions set forth in this section or section 748a. [Emphasis added.]

Information regarding an act of child abuse, if disclosed to a mental health professional during the course of treatment, would be “information acquired in the course of providing mental health services,” and would initially be considered “confidential” under section 748(1).

However, as discussed above, a community mental health professional is “required” to report “suspected child abuse” to the Department of Human Services under section 3(1)(a) of the CPL, MCL 722.623(1)(a), to the extent the incident falls within the definition of such abuse. See MCL 722.622(f). While section 748 does not expressly acknowledge or incorporate the CPL’s reporting requirement, MCL 330.1748a, which concerns requests for information regarding child abuse and neglect, does. That statute provides that “[a] duty under this act [the Mental Health Code] relating to child abuse and neglect does not alter a duty imposed under another statute, including the child protection law regarding the reporting or investigation of child abuse or neglect.” (Citation omitted; emphasis added.) This statute effectively incorporates into the Mental Health Code, including section 748’s confidentiality provision, the mandatory reporting requirement set forth in section 3(1)(a) of the CPL. See also Becker-Witt, 256 Mich App at 364 (“[W]e believe that the Child Protection Law . . . imposed a legal duty on petitioner [a licensed social worker], on behalf of her client’s children, to report her client’s suspected child abuse”).

Indeed, the Mental Health Code recognizes elsewhere a mental health professional’s duty to report child abuse or neglect. MCL 330.1707(5), which concerns the provisions of services to minors, specifically provides that nothing in that section “relieve[s] a mental health professional from his or her duty to report suspected child abuse or neglect under section 3 of the child protection law.”⁹ Thus, while section 748 of the Mental Health Code generally protects from disclosure records or information acquired by a mental health professional during the course of providing mental health services, that statute does not protect information that a mental health professional otherwise has a duty to disclose or report under section 3(1)(a) of the CPL.¹⁰

This determination is consistent with the substance of section 748a, which requires a mental health professional to produce records when requested in a child abuse or neglect investigation. MCL 330.1748a(1) provides, in part:

If there is a compelling need for mental health records or information to determine whether child abuse or child neglect has occurred or to take action to protect a minor where there may be a substantial risk of harm, a [Department of Human Services] caseworker or administrator directly involved in the child abuse or neglect investigation shall notify a mental health professional that a child abuse or neglect investigation has been initiated involving a person who has received services from the mental health professional and shall request in writing mental health records and information that are pertinent to that investigation.

After receiving the request, the mental health professional must review all mental health records and information in the mental health professional’s possession to determine if there is information pertinent to the investigation. MCL 330.1748a(1). The mental health professional must then release the relevant records or information to the Department of Human Services within fourteen days of the request. Id. Concluding that section 748(1) does not prohibit a mental health professional from disclosing confidential records or information in order to comply with the duty to report suspected child abuse under section 3(1)(a) of the CPL is consistent with the mental health professional’s duty to disclose the same information upon request under section 748a.

It is my opinion, therefore, that a mental health professional would have a duty to report suspected child abuse about which the professional received knowledge during the provision of mental health services. Although section 748(1) of the Mental Health Code, MCL 330.1748(1), generally protects from disclosure records or information acquired by a mental health professional during the course of providing mental health services, that provision does not protect records or information revealing suspected child abuse or neglect that a mental health professional would have a duty to report under section 3(1)(a) of the CPL, MCL 722.623(1)(a).¹¹

BILL SCHUETTE
Attorney General

¹   Notably, the Department of Human Service’s Children Protective Services Manual lists “death” as an “injury” to a child for purposes of conducting an investigation. (Children Protective Services Manual, CPS Investigation – General Instructions and Checklist, PSM 713-1 (June 1, 2010).)

²   Chapter 2 of the Mental Health Code, MCL 330.1200a et seq., establishes community mental health agencies to provide mental health services to individuals within their geographic areas.

³   Notably, section 3(1)(a) imposes a similar duty to report with respect to child “neglect,” which is defined at MCL 722.622(j). But because your question specifically refers to “child abuse,” this opinion limits its discussion to that circumstance.

⁴   The CPL also provides, in part, that “any person . . . who has reasonable cause to suspect child abuse . . . may report the matter to the [Department of Human Services] or a law enforcement agency.” MCL 722.624.

⁵   In OAG, 1997-1998, No 6934, p 15 (March 19, 1997), this office determined that because the definition of “child” under the CPL is limited to persons under the age of eighteen, section 3(1)(a) did not impose a duty on a mental health professional to report child abuse when an adult recipient of mental health services discloses that he or she was abused as a child or when an adult recipient discloses having abused a child, who is now an adult, unless there is reasonable cause to suspect that the abuser presents a threat of harm to another child. The question raised here does not present the same concern because the victim here was a child at the time of the suspected abuse and resulting death, and never reached the age of majority.

⁶   This determination is supported by other provisions of the CPL that require the investigation or reporting to certain agencies of the death of a child from child abuse or neglect. See, e.g., MCL 722.627b, 722.627c, 722.627d, 722.627k, and 722.628b. The Department of Human Services has a general duty to report suspected child abuse or neglect to law enforcement. See MCL 722.623(6), 722.628(1), (2), and (3).

⁷   In fact, the department’s Children Protective Services Manual provides that “[a] CPS investigation must occur if there are allegations that the death was due to child abuse/neglect or if it is a sudden and unexplained infant death . . . .” (Children Protective Services Manual, CPS Intake – Special Cases, PSM 712-6, p 9 (June 1, 2010).) The manual further provides that the “fact that a deceased child has no siblings is not a sufficient reason to reject an otherwise appropriate CPS complaint. As long as there is reasonable cause for an investigation, it is to be conducted in full, with cooperation and collaboration with law enforcement.” Id.

⁸   Notably, under section 5 of the CPL, “[a] person acting in good faith who makes a report, cooperates in an investigation, or assists in any other requirement of [the CPL] is immune from civil or criminal liability that might otherwise be incurred by that action.” MCL 722.625. But a person required to report suspected child abuse or neglect, who fails to do so, may be held civilly liable for any damages proximately caused by the failure to report, MCL 722.733(1), and may be charged with a misdemeanor, MCL 722.733(2).

⁹   The Mental Health Code requires mental health professionals to report the suspected “criminal abuse” of a recipient of mental health services. See MCL 330.1723(1) and (2). Children may be the recipients of mental health services, MCL 330.1100c(12), and “criminal abuse” includes the commission or attempt to commit first-degree child abuse. See MCL 330.1700(a)(v) and MCL 750.136b. Thus, under the Mental Health Code, a mental health professional has a similar obligation to report child abuse with respect to a child recipient of mental health services.

¹⁰   The CPL itself abrogates any privilege that would normally attach to communications between a mental health professional and a person receiving services with respect to the duty to report child abuse or neglect. See MCL 722.631 (“[a]ny legally recognized privileged communication except that between attorney and client or that made to a member of the clergy . . . is abrogated and shall not constitute grounds for excusing a report otherwise required to be made . . . .”). See also OAG, 1979-1980, No 5440, p 43 (February 8, 1979).

¹¹   While you raised an additional question regarding whether a community mental health professional may report suspected child abuse to law enforcement under section 12 of the CPL, MCL 722.632, the Mental Health Code itself includes a provision permitting disclosure to public agencies such as a law enforcement agency. See MCL 330.1748(7)(c). See also MCL 330.1946(1) and (2)(b)-(c).