Child Maltreatment and Parental Substance Abuse

by Child Welfare Information Gateway

CASE VIGNETTE: Based on Lisa's history of substance abuse and an abusive relationship with the baby's father as well as positive urine toxicology screens at delivery and birth, Lisa and Timmy were reported to Child Protective Services (CPS) for evaluation of Lisa's ability to provide daily care and protect Timmy from harm.

Determining if and when parental substance abuse should be reported to a CPS agency is a difficult but important issue. To make such a determination, it is necessary to understand the requirements related to mandatory reporting of child abuse and neglect. Although it is a matter of serious debate whether these reporting laws apply to the unborn, there is no doubt that they do apply to infants and children who receive neglectful or abusive care from their chemically involved parents or who are in imminent danger of receiving such care.

Reporting Obligations

State laws, policies, guidelines, and definitions govern the reporting of child maltreatment, including cases involving parental substance abuse. Readers are advised to check the reporting mandates and procedures specific to their States in each of the areas discussed below.

Reporting Parental Substance Abuse

We are all aware that all reasonable suspicions of child maltreatment must be reported. However, without specific State legislation, parental substance abuse (in and of itself) is not reportable as a form of child maltreatment. Only when there is reason to believe that the parent's alcohol or other drug abuse is so severe that the child has been or is likely to be harmed due to such substance abuse, should a report to CPS be filed.

Reporting Substance Abuse During Pregnancy

Problems arise in determining whether fetal exposure to harmful substances during pregnancy should be reported under child abuse and neglect reporting laws. The mother's right to privacy must be balanced against the fetus' right to a safe, healthy environment. In many States, a fetus is not defined as a minor child or juvenile ("any child from birth to 18"), thus precluding any child abuse or neglect action within the child welfare and juvenile court system.

However, there are a number of States that weigh the rights of the fetus more heavily than the mother's right to privacy. CPS agencies in these States accept reports of prenatal substance abuse so that they may offer services for the pregnant mother and the unborn. One State has a provision that specifically allows applications by a relative or an agency for the care or custody of an unborn when the unborn's welfare is in danger and the pregnant mother is in the State at the time of application for services.12

Until explicit laws are created to deal with the question of reporting substance abuse during pregnancy, professionals will need to continue to infer the answer on the basis of existing State child abuse and neglect reporting laws.

Reporting Drug- and Alcohol-Affected Infants

An increasing number of States have dealt with the issue of prenatal alcohol and other drug abuse by mandating that substance-affected infants be reported at the time of birth. Some States specifically mention prenatal drug exposure in their statutes defining child abuse and neglect. However, these States often limit the definition of "drug exposure" to illegal substances. Although prenatal exposure to alcohol is a leading cause of mental retardation, only four States currently require that Fetal Alcohol Syndrome (FAS) be reported.

The condition of the infant that triggers mandatory reporting laws varies from State to State. Some States require only a positive toxicology screen at birth. Other States require physical signs of addiction or dependence. Still others require reporting of drug- and alcohol-affected infants based on a more general assessment of the newborn's imminent risk of harm or need for protection.

Most States, however, have no explicit laws requiring the reporting of prenatal substance exposure. In these States, the determination of whether professionals should report such cases requires a legal analysis of existing child abuse and neglect reporting laws.

Variations in Reporting

Professionals mandated to report reasonable suspicions of substance abuse that may cause risk to a child sometimes choose not to report. Private physicians, for instance, may not want to risk the loss of paying clients or the control that they maintain over their patients' care. On the other hand, physicians in public clinics, emergency rooms, or hospitals tend to report a much higher proportion of their patients. While their reports seem to indicate a higher use of substances among poor clients, the settings themselves may in fact be at cause, and clients' help-seeking is often what is measured rather than incidence of abuse.

Additional factors also may come into play. In a study of reporting practices of mandated reporter professionals, Zellman found that those who believed that reporting would do more harm than good failed to report. Reporting may also be influenced by statutes that require hospital staff to conduct a thorough medical and social assessment of each infant prenatally exposed to drugs to determine whether the newborn's condition should be reported. In California, for example, the assessment of risk factors includes not only the toxicology screen, but also the child's physical condition as well as parental and environmental factors in the home that may place the infant at risk. Other States that require reporting of every newborn with a positive toxicology screen conceivably could have more reports made as a rule, particularly if these additional factors can constitute the basis of a report.

Child Welfare Information Gateway is developing a State statute database that will provide information on a number of elements in State reporting laws, including substance abuse. This resource will be helpful if individuals need to know about specific State laws or wish to make comparisons of reporting requirements among States. For additional information, the reader is referred to a recent National Institute on Drug Abuse publication, Legal Interventions Directed at Women Who Use Drugs During Pregnancy: What Decision-Makers Need to Know.

Confidentiality

The Child Abuse Prevention and Treatment Act requires confidentiality of child abuse records to protect the rights of the parents and the child in civil but not in criminal proceedings. Federal funding statutes require States to make unauthorized disclosure of these records a criminal offense. However, States are permitted to except disclosures when requested by the following:

• agencies or organizations, including a designated multidisciplinary case consultation team, that are legally mandated to receive and investigate reports of known and suspected child abuse and neglect;
• courts (which may subpoena records in some restricted cases);
• grand juries;
• a properly constituted authority investigating a report of known or suspected child abuse or neglect or providing services to a child or family which is the subject of a report;
• a physician who has before him/her a child for whom the physician has reasonable suspicion of abuse or neglect;
• anyone legally authorized to place a child in protective custody and who needs the information to determine whether to place the child;
• agencies with authority to diagnose or treat a reported child;
• anyone who is the subject of a report (the identity of the reported cannot be revealed if to disclose would endanger the life or safety of the reported; most States protect this confidential disclosure);
• the child, attorney, or guardian ad litem for the child;
• State or local officials responsible for administration of the CPS caseworker or for oversight of the enabling or appropriating legislation;
• individuals, agencies, or organizations conducting bona fide research, with no identifying information made available;
• the original reporter, who may be provided with feedback or a summary of the outcome of the report;
• agencies or persons conducting background screening for child-related employment; and
• the U.S. Department of Health and Human Services and the Comptroller of the United States or any of their representatives (45 CFR 1340.14).

Confidentiality normally protects the patient or client from any unauthorized disclosure of information. However, all States now have mandatory child abuse reporting laws that abrogate the professional/patient or client privilege. Mandated reporters are protected from civil or criminal liability for any report made in good faith. In many States this immunity extends to participation in judicial proceedings arising from the reports. It is also important to note that individuals providing treatment services under programs funded through the Federal Alcohol and Drug Rehabilitation Act are required to report suspicions of child abuse pursuant to State child abuse reporting laws.

Furthermore, many States have statutory exceptions that allow discriminant sharing of multidisciplinary agency information about children who are alleged or found to be abused or neglected. Information from normally confidential sources should be shared in order to coordinate service delivery and provide effective support to the family. Sharing medical, mental health, social welfare, substance abuse treatment, criminal, probation, and educational information is crucial to providing protection for a child, especially when the child is living in the home or when a return to the parents is anticipated.

About the Author

www.childwelfare.gov
Formerly the National Clearinghouse on Child Abuse and Neglect Information and the National Adoption Information Clearinghouse, Child Welfare Information Gateway provides access to information and resources to help protect children and strengthen families. A service of the Children's Bureau, Administration for Children and Families, U.S. Department of Health and Human Services.