Must a therapist report child abuse that happened to an adult patient years ago?

Plain-English summary

Texas has a mandatory child-abuse reporting law. Chapter 261 of the Family Code requires certain professionals who have cause to believe a child has been or may be abused or neglected to report it, generally within 48 hours. The Chair of the Texas State Board of Examiners of Psychologists asked the Attorney General a question that comes up in therapy: when a mental health professional is treating an adult patient and the patient describes abuse or neglect that happened back in the patient's own childhood, does the reporting law require the professional to report that past abuse?

The whole question turned on the word "child." The professional's office suggested it was ambiguous, leaving open whether the duty to report covers only someone who is a child now, or also reaches an adult who was a child when the abuse happened. The opinion concluded the word is not ambiguous, because the Family Code defines it. A "child" is "a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes." When the Legislature supplies a definition, courts use it. So "child" in chapter 261 means a person who is currently under eighteen.

The opinion reinforced that reading by looking at the rest of chapter 261. The definition of a "professional" who must report is tied to someone who has "direct contact with children," which on its face means current children, not former ones. And throughout the chapter, references to "the child" use the definite article in a way that points to a present, particular child, the one being protected by an investigation. Reading the term consistently across the whole statute, the opinion concluded "child" means an at-present child.

From that, the answer followed: a professional is not required by section 261.101(b) to report abuse or neglect that the professional believes occurred during an adult patient's childhood. The Chair had asked several follow-up questions about what such a report would have to contain, but those were premised on the opposite conclusion, so the opinion did not reach them.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Texas State Board of Examiners of Psychologists (as the opinion described it): The opinion answered the Board's threshold question that the chapter 261 mandatory-reporting duty does not require reporting abuse or neglect believed to have occurred during the childhood of a patient who is now an adult, and so it did not reach the Board's contingent follow-up questions.

Mental health professionals (as the opinion described it): The opinion read section 261.101(b) as keyed to an at-present child, meaning the mandatory-reporting duty in that subsection is not triggered by a now-adult patient's account of childhood abuse.

Patients (as the opinion described it): The opinion's analysis was confined to whether the statute compels a report in this situation; it addressed the scope of the reporting duty, not any other consequence.

Common questions

Does a Texas therapist have to report childhood abuse described by an adult patient?
According to the opinion, the mandatory-reporting duty in section 261.101(b) does not require it. That duty is tied to a "child," which the Family Code defines as a person currently under eighteen.

Why does the definition of "child" decide this?
Because the Legislature defined "child" in the Family Code, and courts use a statutory definition when one is provided. The opinion read "child" to mean a person who presently satisfies that under-eighteen definition.

What in the statute shows it is about current children?
The opinion pointed to the definition of "professional" (someone with "direct contact with children") and the repeated references to "the child" being protected, both of which it read as pointing to a present, particular child.

Did the opinion address what a report must contain?
No. The Board's follow-up questions assumed a report was required. Because the opinion concluded one was not, it did not reach those questions.

Background and statutory framework

Chapter 261 of the Family Code sets the requirements for reporting and investigating child abuse or neglect. Tex. Fam. Code Ann. §§ 261.001-.410 (West 2008 & Supp. 2011). Section 261.101 requires a professional with cause to believe a child has been or may be abused or neglected to report, with subsection (a) addressing any person's duty and subsection (b) addressing professionals. Tex. Fam. Code Ann. § 261.101(a), (b) (West 2008). "Abuse" is comprehensively defined, including sexual abuse, in § 261.001(1).

The dispositive definition is in § 101.003(a): a "child" is "a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes," and § 101.001(a) makes the title 5 definitions apply to chapter 261. The opinion applied ordinary construction principles from City of Waco v. Kelley and Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp., the definite-article point from Town of Flower Mound v. Teague, and the rule that a term is read consistently throughout an act from Tex. Dep't of Transp. v. Needham.

Citations

Cases:

• City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010)
• Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842 (Tex. 2009)
• Town of Flower Mound v. Teague, 111 S.W.3d 742, 764 (Tex. App.-Fort Worth 2003, pet. denied)
• Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)

Statutes:

• Tex. Fam. Code Ann. §§ 261.001-.410 (West 2008 & Supp. 2011)
• Tex. Fam. Code Ann. § 261.101(a) (West 2008)
• Tex. Fam. Code Ann. § 261.101(b) (West 2008)
• Tex. Fam. Code Ann. § 261.001(1) (West Supp. 2011)
• Tex. Fam. Code Ann. § 101.003(a) (West 2008)
• Tex. Fam. Code Ann. § 101.001(a)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0944
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0944.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 30, 2012

Tim F. Branaman, Ph.D. Opinion No. GA-0944
Chair, Texas State Board of Examiners
of Psychologists Re: Whether a mental health professional is
333 Guadalupe, Suite 2-450 required by chapter 261, Family Code, to report
Austin, Texas 78701 abuse or neglect that occurred during the childhood
of a now-adult patient (RQ-1030-GA)

Dear Dr. Branaman:

You ask "[w]hether a mental health professional who is treating an adult patient must report any abuse or neglect, as those terms are defined in Chapter 261 of the Texas Family Code, that the mental health professional has cause to believe occurred during the adult patient's childhood."[1] You pose several additional questions about what information must be included in the report in the event we conclude that a report is required. See Request Letter at 1 (asking additional questions "if such a report is required").

Chapter 261 of the Family Code establishes the statutory requirements for reporting and investigating child abuse or neglect. See generally TEX. FAM. CODE ANN. §§ 261.001-.410 (West 2008 & Supp. 2011). Section 261.101 requires professionals with "cause to believe that a child has been abused or neglected or may be abused or neglected"[2] or is the victim of specified offenses, to make a report within 48 hours. Id. § 261.101(b) (West 2008); see also id. § 261.101(a) (requiring a person to immediately report a belief that a "child's physical or mental health or welfare has been adversely affected by abuse or neglect"). You suggest the term "child" in the phrase "a child that has been abused or neglected" is ambiguous and raises the question of whether under subsection 261.101(b) the professional's duty to report includes only an at-present child or extends to an individual who is now an adult but was a child when abused. See Request Letter at 1-3.

When construing a statute, our objective is to determine and give effect to the Legislature's intent. See City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010). "We look first to the plain and common meaning of the statute's words." Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842 (Tex. 2009). And we determine legislative intent from the statute as a whole and not from isolated provisions. See Kelley, 309 S.W.3d at 542.

Based upon the plain language of the statute enacted by the Texas Legislature, the term "child" in subsection 261.101(b) is not ambiguous. The Legislature specifically defined the term "child" for purposes of chapter 261 as: "a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes." TEX. FAM. CODE ANN. § 101.003(a) (West 2008); see also id. § 101.001(a) (providing that definitions apply to Family Code, title 5, including chapter 261). As the Texas Supreme Court has explained, "If the Legislature provides definitions for words it uses in statutes, then we use those definitions ...." Kelley, 309 S.W.3d at 542. We thus conclude that the term "child" used in chapter 261 refers to a person who at-present satisfies the definition and is under eighteen.

Language in other provisions of chapter 261 supports the view that an at-present child is chapter 261's focus. Subsection 261.101(b) defines "professional" as "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 ... has direct contact with children." TEX. FAM. CODE ANN. § 261.101(b) (West 2008) (emphasis added). On its face, the term "children" here cannot be construed to include adults or former children, and instead can mean only those who are currently children. Further, subsequent uses of the term child in chapter 261 are preceded by the definitive article "the," which limits the term "child" to a definite or particular child. See, e.g., id. §§ 261.101(b) (providing that the reporting period commences "the hour the professional first suspects that the child has been or may be abused or neglected"), 261.104(1)-(2) (specifying that report of child abuse contain information pertaining to "the child"), 261.301(d) (stating that primary purpose of investigation of report of child abuse is the "protection of the child"), 261.302(a)-(c) (providing for conduct of investigation of "the child" and "the subject child"); see also Town of Flower Mound v. Teague, 111 S.W.3d 742, 764 (Tex. App.-Fort Worth 2003, pet. denied) ("'The' is a function word used to indicate that a following noun ... is definite or has been previously specified by context or circumstance, or is a unique or particular member of its class."). Thus, to be consistent in meaning and use throughout chapter 261, the term "child" when used in subsection 261.101(b) must be construed as an at-present child. See Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002) ("Statutory terms should be interpreted consistently in every part of an act.").

For these reasons, we believe that the term "child" used in chapter 261 refers to only an at-present child. Accordingly, a professional is not required by subsection 261.101(b) to report the abuse or neglect the professional believes occurred during an adult patient's childhood. Because your additional questions are contingent upon an alternative conclusion, we need not address them.

SUMMARY

Under subsection 261.101(b) of the Family Code, a professional is not required to report abuse or neglect that the professional believes occurred during an adult patient's childhood.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] Letter from Tim F. Branaman, Ph.D., Chair, Tex. State Bd. of Exam'rs of Psychologists, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Dec. 11, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] See TEX. FAM. CODE ANN. § 261.001(1) (West Supp. 2011) (providing comprehensive definition of "abuse," including sexual abuse), 261.001(4) (defining "neglect"). Because the definition of abuse includes sexual abuse, we do not in this opinion separately discuss nonsexual abuse and sexual abuse.