Can the Idaho Department of Health and Welfare investigate suspected child abuse on school grounds without parents present, and can school officials be barred from sitting in?
Plain-English summary
The Department of Health and Welfare asked five questions about how child-abuse investigations should work when the suspected victim is a student.
What are school personnel required to do? Idaho Code § 16-1619 makes mandatory reporting universal: any teacher, school employee, or other listed person with reason to believe a child under 18 has been abused, abandoned, or neglected must report within 24 hours to law enforcement or to the Department of Health and Welfare. Failure to report is a misdemeanor. Reporters in good faith are immune from civil and criminal liability under § 16-1620. The "reasonable belief" standard does not require staff to investigate first; it requires staff to report when the indicators reach the level a similarly situated person would recognize.
Can DHW investigate inside a school? Yes. The legislature placed broad investigative authority in DHW under Idaho Code § 16-1601 and § 56-204A. DHW caseworkers conducting child-abuse investigations are statutorily designated as law enforcement agents (§ 9-337(5)), and their authority extends into all public and private facilities, including schools.
Can DHW decide who is in the room? Yes, under DHW's procedural rules and the holding of Decatur City Board of Education v. Aycock (Ala. Civ. App. 1990). Following the U.S. Supreme Court's decision in Idaho v. Wright (1990), interview integrity is critical: hearsay statements taken from a child are inadmissible in a criminal trial unless the questioning was free of suggestive or intimidating procedure. The presence of an authority figure can taint the interview. DHW therefore has discretion to exclude school personnel.
Are schools liable for cooperating? No, so long as they cooperate. Idaho Code § 33-601(7) authorizes school buildings to be used for any public purpose, and child-abuse investigation is one. The greater liability risk runs the other way: a school district that obstructs or delays an investigation may face civil liability under cases like Boykin v. District of Columbia, and may face criminal liability under § 18-705 for obstructing law enforcement.
Do parents have to be told first? No. Communications between a child and a counselor, psychologist, or clergy member are not privileged in child-protection cases (§ 9-203(3) and (6)). DHW can interview the child without parental consent or notification. The responsibility to notify parents belongs to DHW, and only when DHW deems it necessary for the child's best interests.
Currency note
This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
The Idaho Child Protective Act (chapter 16 of title 16, Idaho Code) is built on a few central provisions. § 16-1601 declares state policy: protect children whose life, health, or welfare is endangered, while preserving the family relationship to the extent possible. § 16-1602 defines "abused," "abandoned," and "neglected." § 16-1619 makes reporting mandatory for a long list of professionals (and by extension to "any other person") who have reason to believe a child has been abused, abandoned, or neglected. § 16-1620 grants reporting immunity for good-faith reports. § 16-1625 authorizes DHW to use its own resources and to enlist peace officers when needed. § 16-1627 instructs that the Act's provisions be "liberally construed."
The Department's investigative procedures are at IDAPA 16.06.013 et seq. Those rules cover assignment of cases, the preliminary investigation, the Child Neglect and Abuse Register, and information-sharing with law enforcement.
The interview-integrity issue is anchored in State v. Wright, 116 Idaho 382 (1989), and the U.S. Supreme Court's affirmance in Idaho v. Wright, 110 S. Ct. 3139 (1990). The Idaho Supreme Court excluded a 2-and-a-half-year-old victim's hearsay statements to a pediatrician because the questioning fell outside the scope of a proper investigation. The U.S. Supreme Court used the case to set out the constitutional admissibility test: hearsay statements from a child witness are admissible only if the investigation is free from suggestive or intimidating procedure. That doctrine drove the AG's conclusion that DHW can exclude school staff from the interview to keep the questioning untainted.
The substantive law on whether school officials can insist on being present came from Decatur City Board of Education v. Aycock, 562 So. 2d 1331 (Ala. Civ. App. 1990). Several Alabama school boards had adopted policies forbidding private interviews on campus by the Department of Human Resources. The Alabama Court of Civil Appeals held that there was no reasonable justification for a categorical insistence on school presence at every interview, and the policy was struck down. The AG read Idaho's statutory framework as parallel and concluded an Idaho court would reach the same result.
Common questions
Does the school have to call the parents before the investigator arrives?
No. § 16-1619 requires the report to law enforcement or DHW; it does not require notice to parents. § 9-203 carves out child-protection cases from communication privileges. Parental notification is DHW's call, made when it is in the child's best interest, not the school's.
What counts as "reason to believe"?
The opinion is careful here. School staff don't have to report every bruise. The "reasonable belief" test asks what a similarly situated person would do under similar circumstances (White by White v. Pierce County, 9th Cir. 1986). The Massachusetts case the AG cites describes it as "reporting on a basis of indicators which give reasonable cause to believe that a child is being abused. That conclusion requires an element of judgment to separate an incident from a pattern, the trivial from the serious."
What if a school administrator demands to be in the interview?
The AG concluded DHW (or law enforcement) has sole discretion to decide who attends. The administrator can be excluded. The school's argument that it has a duty of care to the student does not override the investigative authority and does not survive Decatur.
Can the school be sued if a child is interviewed and the parents object?
Idaho Code § 16-1620 grants immunity for good-faith cooperation. § 6-904(1) limits governmental liability. The opposite scenario, a school that blocks the investigation, is the higher-risk path: it can lead to civil liability for hindering child protection and to criminal liability under § 18-705 for obstructing law enforcement.
Does this apply to private schools?
Yes. The opinion explicitly says it makes no distinction between public and private schools.
Citations
Idaho statutes: § 6-904(1) (governmental tort claims liability limit); § 9-203(3), (6), (7) (privileges that do not apply in child-protection cases); § 9-337(5) (DHW caseworkers as law enforcement agents); § 16-1601 (Child Protective Act policy); § 16-1602 (definitions); § 16-1619 (mandatory reporting); § 16-1620 (reporter immunity); § 16-1625 (DHW investigative authority); § 16-1627 (liberal construction); § 16-1811 (law enforcement authority); § 18-705 (resisting and obstructing officers); § 33-601(7) (use of school buildings); § 56-204A (DHW protective services rulemaking).
DHW administrative rules: IDAPA 16.06.01300 to 16.06.01315 et seq.
U.S. Supreme Court: Idaho v. Wright, 110 S. Ct. 3139 (1990).
Idaho cases: State v. Wright, 116 Idaho 382, 775 P.2d 1224 (1989) (Idaho Supreme Court).
Other cases: Boykin v. District of Columbia, 484 A.2d 560 (D.C. App. 1984); Decatur City Board of Education v. Aycock, 562 So. 2d 1331 (Ala. Civ. App. 1990); Jett v. State, 605 So. 2d 926 (Fla. App. 5 Dist. 1992); Mattingly v. Casey, 509 N.E.2d 1220 (Mass. App. Ct. 1987); Morris v. Coleman, 194 Mich. App. 606, 488 N.W.2d 464 (Mich. App. 1992); People v. Hedges, 13 Cal. Rptr. 2d 412 (Cal. Super. 1992); R.S. v. State of Minnesota and Hennepin County, 459 N.W.2d 680 (1990); White by White v. Pierce County, 797 F.2d 812 (9th Cir. 1986).
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP93-02.pdf
Original opinion text
ATTORNEY GENERAL OPINION NO. 93-2
To:
Mr. Ken Patterson, Administrator
Division of Family and Children's Services
Idaho Department of Health and Welfare
450 W. State Street, Third Floor
STATEHOUSE MAIL
Boise, ID 83720
Per Request for Attorney General's Opinion
QUESTIONS PRESENTED
1.
What are the responsibilities of school personnel in reporting suspected child
abuse?
2.
Does the Idaho Department of Health and Welfare have the authority to
investigate within school facilities reports of child abuse, abandonment and
neglect?
3.
Does the authority to investigate reports of child abuse, abandonment and neglect
include the authority to determine who may be present and/or participate in the
interview process?
4.
What is the potential liability for school personnel if investigations are conducted
in school facilities?
5.
What are the requirements for parent notification of child protection
investigations?
For the purposes of this opinion, there is no distinction made between public and
private schools.
CONCLUSION
1.
School personnel must report all instances of suspected child abuse, abandonment
and neglect to either law enforcement or the Department of Health and Welfare
within 24 hours of discovery. Failure to do so is a misdemeanor.
2.
The Department of Health and Welfare has the authority to investigate reports of
suspected child abuse, abandonment and neglect. The department's authority to
investigate extends to school facilities. The investigation should proceed in
accordance with governing statutes, the department's promulgated rules, and
internal policies.
3.
The authority of the Idaho Department of Health and Welfare to investigate
reports of child abuse, abandonment and neglect includes the ability to determine
who may be present and/or participate in the interview process.
4.
School personnel incur no liability for allowing use of school facilities for
purposes of child abuse investigation so long as the reporting was done in good
faith and without malice.
5.
Interviews of suspected victims of child abuse, abandonment and neglect without
parental consent or notification do not violate the parent's right to privacy in
family relationships and the responsibility of notification is that of the Department
of Health and Welfare.
ANALYSIS
Question No. 1:
Idaho is one of many states which has mandatory reporting requirements when
child abuse, abandonment or neglect is suspected. Case law clearly upholds the validity
of these statutes in that they are neither far reaching nor unconstitutional. Jett v. State,
605 So. 2d 926 (Fla. App. 1992); People v. Hedges, 13 Cal. Rptr. 2d 412 (Cal. Super. Ct.
1992); Morris v. Coleman, 194 Mich. App. 606, 488 N.W.2d 464 (Mich. App. 1992).
Idaho Code § 16-1619 provides:
Any physician, resident on a hospital staff, intern, nurse, coroner,
school teacher, day care personnel, social worker, or other person having
reason to believe that a child under the age of eighteen (18) years has been
abused, abandoned or neglected or who observes the child being subjected
to conditions or circumstances which would reasonably result in abuse,
abandonment or neglect shall report or cause to be reported within twentyfour (24) hours such conditions or circumstances to the proper law
enforcement agency or the department [of health and welfare]. The
department shall be informed by law enforcement of any report made
directly to it.
(Emphasis added.) Idaho Code § 16-1602 defines "abused," "abandoned" and
"neglected" as set out in the statute.
The statute clearly requires anyone, specifically teachers and other employees
within a school system, to report suspected child abuse, abandonment and neglect to the
department of health and welfare or law enforcement. The reporting party is immune
from criminal and civil liability so long as he or she has reason to believe that a child has
been abused, abandoned or neglected and, acting upon that belief, makes a report of
abuse, abandonment or neglect as required in section 16-1619 of the Idaho Code. Any
person reporting in bad faith or with malice is not immune from liability.
Although "reasonable belief" is not defined within Idaho Code, the elements of
abuse, abandonment or neglect are in Idaho Code § 16-1602(a)(b)(s). This does not
mean school personnel must report every bruise or scratch noticed on a child. Mattingly
v. Casey, 509 N.E.2d 1220 (Mass. App. Ct. 1987) "It requires reporting on a basis of
indicators which give reasonable cause to believe that a child is being abused. That
conclusion requires an element of judgment to separate an incident from a pattern, the
trivial from the serious." Id. at 1222-23. The "reasonable belief" standard is what a
similarly situated person would do under similar circumstances. White by White v.
Pierce County, 797 F.2d 812 (9th Cir. 1986).
Forming a "reasonable belief," however, does not reach the level of performing a
preliminary investigation. A preliminary investigation may include interviewing the
child, family members, or collateral contacts, physically examining the child, and
determining whether a valid child abuse complaint exists. IDAPA 16.06.0130016.06.01302 et seq., 16.06.01310, 16.06.01311, and 16.06.01315 et seq. The
responsibility to perform the preliminary investigation is that of the Department of Health
and Welfare. Therefore, school personnel have no obligation to perform any further
investigation once the suspected abuse is reported.
It should be noted that communications regarding child abuse, abandonment and
neglect disclosed between a child and the child's counselor, psychologist, or clergy are
not confidential and are subject to disclosure to the Department of Health and Welfare.
Idaho Code § 9-203(3) and (6); Jett v. State, 605 So. 2d 926 (Fla. App. 1992); People v.
Hedges, 13 Cal. Rptr. 2d 412 (Cal. Super. 1992). In other words, the confidential nature
of communications between a counselor and a student is testimonial only and does not
apply to child protection cases.
Question No. 2:
You next ask whether the authority of the Department of Health and Welfare to
investigate reports of child abuse, abandonment and neglect extends within school
facilities.
The Idaho Legislature has clearly placed the authority and responsibility to
investigate reports of child abuse, abandonment and neglect in the Idaho Department of
Health and Welfare. Idaho Code § 16-1601 sets forth the policy of the state of Idaho.
Idaho Code § 56-204A authorizes and directs the state department to maintain protective
services on behalf of children whose opportunities for normal physical, social and
emotional growth and development are endangered, including receiving and investigating
all reasonable reports or complaints of neglect, abuse, exploitation or cruel treatment of
children, and initiating appropriate services and action.
The legislature has clearly indicated the intent to protect children from abuse. In a
declaratory judgment action involving the exact question you pose, it was held that such
specific child protection statutes prevail over general statutes giving school boards
power to control activities occurring at schools. Decatur City Board of Education v.
Aycock, 562 So. 2d 1331 (Ala. Civ. App. 1990). Department employees investigating
child abuse cases are defined as law enforcement agents. Idaho Code § 9-337(5).
Therefore, the scope of the Idaho Department of Health and Welfare's authority is not
limited by statute and extends into all public and private facilities, including school
facilities, just as law enforcement's authority is not limited when investigating crimes
committed by youth. Idaho Code § 16-1811.
Question No. 3:
You next ask whether the authority of the Department of Health and Welfare to
investigate reports of child abuse, abandonment or neglect includes the authority to
determine who may be present and/or participate in the interview process.
Title 6, chapter 1, of the Rules and Regulations Governing Social Services sets
forth the procedures which the department must follow when investigating child abuse.
IDAPA 16.16.013000 et seq. Those procedures include assigning the case for
investigation, investigating the complaint, entering the complaint on a "Child Neglect and
Abuse Register," and forwarding this information to law enforcement. All complaints are
deemed "reasonable for purposes of preliminary investigation unless" the information
received discredits the report beyond reasonable doubt. IDAPA 16.06.01301,01(a)(b)(c)
and (d). The internal policy of the Department of Health and Welfare directs how
investigations are to proceed.
In making investigations, the Department of Health and Welfare "shall use its own
resources, and may enlist the cooperation of peace officers for phases of the investigation
for which they are better equipped." Idaho Code § 16-1625. Idaho Code § 16-1627
grants great latitude to the Department of Health and Welfare in determining how
investigations of child abuse cases should proceed by requiring that the provisions of the
Child Protective Act be "liberally construed."
It is presumed that the Department is in the best position to make decisions
regarding the protection of children and their families. The Department has staff trained
in dealing with all aspects of child abuse from the recognition of abuse to the removal of
children from dangerous environments. The Department's services must also include
assistance and support for the families of the abused child. Idaho Code § 16-1601.
The importance of properly handling child abuse investigations becomes apparent
with State v. Wright, 116 Idaho 382, 775 P.2d 1224 (1989). In Wright, the Idaho
Supreme Court excluded hearsay testimony regarding the statements of a 2-and-a-halfyear-old victim given to a pediatrician from the criminal trial because the statements
were taken outside the scope of a proper investigation. Wright was appealed to the
United States Supreme Court. Idaho v. Wright, 110 S. Ct. 3139 (1990). The United
States Supreme Court ruled that in order for hearsay statements to be admissible at trial,
the investigation must be free from any suggestive or intimidating procedure by
participants. Wright, 110 S. Ct. at 3142:
The purpose of an in-school interview outside the presence of
parents, guardians, or other persons responsible for the care of the child is
so that welfare officials and police officers may obtain an untainted
interview. R.S. v. State of Minnesota and Hennepin County, 459 N.W.2d
680, 687 (1990).
The dangers of not conducting a proper investigation are obvious. The presence
of school officials could hinder the investigation itself, involve a potentially intimidating
authority figure, and taint potential evidence for future court proceedings. Therefore, the
determination of who should be present during the course of a child abuse investigation is
solely within the discretion of the Department of Health and Welfare and law
enforcement. The department in its sole discretion may exclude school personnel from
the interview.
The same conclusion was reached by the Court of Civil Appeals of Alabama in
Decatur City Board of Education v. Aycock, 562 So. 2d 1331 (1990). The Alabama
court, relying on much the same general statutory framework as exists in Idaho,
concluded: "[T]here is no reasonable justification for, or right to, the Boards' policy
requiring that an official school representative be present at all interviews . . . ." We are
convinced an Idaho court would reach the same conclusion.
Question No. 4:
You next ask whether school personnel expose themselves to liability if
investigations are conducted in school facilities.
Idaho Code § 33-601(7) authorizes and directs the board of trustees of each school
district to use "any school building of the district . . . for any public purpose." The policy
of the Child Protective Act establishes that the coordination between state and local
public agencies to prevent child abuse should be considered to be such a public purpose.
Idaho Code § 16-1601; Decatur City Board of Education v. Aycock, 562 So. 2d 1331,
1334 (Ala. Civ. App. 1990). Moreover, the Department of Health and Welfare is
required to cause a child abuse investigation to be made in accordance with the Child
Protective Act as appropriate under the circumstances. Idaho Code § 16-1625.
Idaho Code § 16-1620 provides immunity to any person who has reason to believe
that a child has been abused, abandoned or neglected and acts upon that belief. Thus, so
long as the school official does not report in bad faith or with malice, Idaho Code § 161620 will provide protective immunity. The qualified good faith standard is what a
similarly situated person would do under similar circumstances. White by White v.
Pierce City, 797 F.2d 812 (9th Cir. 1986). Such immunity extends to participating in any
judicial proceeding resulting from such reporting. The school district or school
employees will not incur liability for allowing use of school facilities for such a purpose.
Idaho Code § 6-904(1).
A school district may be liable for negligence if the danger noted in the Act should
have been "protected against by the District" or if either law enforcement or the
Department of Health and Welfare is obstructed from completing a proper investigation.
Boykin v. District of Columbia, 484 A.2d 560 (D.C. App. 1984); State v. Wright, supra.
Therefore, if a school district refuses to allow the Department of Health and Welfare
access to a child at any time, thereby delaying the investigation of the allegation, the
protection of that child may be hindered. Balancing the respective interests, it is more
likely that liability could be incurred by hindering, delaying or obstructing a child
protection investigation than by permitting it to proceed as authorized by the governing
law. The public interest will best be served by allowing the child protective professionals
to do their jobs.
It should be noted that the Public Records Act states that the Idaho Department of
Health and Welfare is a "law enforcement agency" in performing its duties under the
Child Protective Act. To this extent, its social workers are law enforcement officers.
Idaho Code § 9-337(5). Thus, there may also be criminal liability against school officials
should a law enforcement officer be obstructed from discharging his or her duty when
investigating a child abuse report just as if they hindered a peace officer's investigation of
any other crime. Idaho Code § 18-705.
Question No. 5:
Your final question asks whether parents must be notified of child protection
investigations.
The very nature of a child abuse investigation and the fact that parents cannot
invoke a legal privilege to prevent a child from testifying against them in Child
Protective Act cases negates the requirement for parental consent or notification prior to
interviewing the child. Idaho Code § 9-203(7).
Interviewing the suspected victim of child abuse without parental consent or
notification, even when the "identification of the perpetrator is unknown, is a reasonable
means to effectuate the state's interest in identifying and protecting abused children."
R.S. v. State of Minnesota and Hennepin County, 459 N.W. 2d 680, 690 (1990).
The responsibility of notifying parents is that of the Department of Health and
Welfare and is not required until such time as the department deems it necessary to
ensure the best interest and needs of the child are met.
AUTHORITIES CONSIDERED
1.
Idaho Code:
§ 6-904(1).
§ 9-203(3).
§ 9-203(6).
§ 9-203(7).
§ 9-337(5).
§ 16-1601.
§ 16-1602.
§ 16-1619.
§ 16-1620.
§ 16-1625.
§ 16-1627.
§ 16-1811.
§ 18-705.
§ 33-601(7).
§ 56-204A.
2.
IDAPA:
16.06.01300
16.06.01301
16.06.01302
16.06.01303
16.06.01304
16.06.01305
16.06.01310
16.06.01311
16.06.01315 et seq.
3.
U.S. Supreme Court Cases:
Idaho v. Wright, 110 S. Ct. 3139 (1990).
4.
Idaho Cases:
State v. Wright, 116 Idaho 382, 775 P.2d 1224 (1989).
5.
Other Cases:
Boykin v. District of Columbia, 484 A.2d 560 (D.C. App. 1984).
Decatur City Board of Education v. Aycock, 562 So. 2d 1331 (Ala. Civ. App. 1990).
Jett v. State, 605 So. 2d 926 (Fla. App. 5 Dist. 1992).
Mattingly v. Casey, 509 N.E.2d 1220 (Mass. App. Ct. 1987).
Morris v. Coleman, 194 Mich. App. 606, 488 N.W.2d 464 (Mich. App. 1992).
People v. Hedges, 10 Cal. App. 4th. Supp. 20, 13 Cal. Rptr. 2d 412 (Cal. Super. 1992).
R.S. v. State of Minnesota and Hennepin County, 459 N.W.2d 680 (1990).
White by White v. Pierce City, 797 F.2d 812 (9th Cir. 1986).
DATED this 24th day of March, 1993.
LARRY ECHOHAWK
Attorney General
Analysis by:
ANN COSHO
Deputy Attorney General