by Laura H. Caston
In 2017, the Texas Department of Family and Protective Services reported 14,955 child abuse or neglect investigations in Dallas County. This article discusses reporting requirements for attorneys, including penalties for a failure to report, and offers resources for reporting a good-faith suspicion of child abuse or neglect.
Mandatory Reporting Requirement
Attorneys are mandatory reporters of suspected child abuse or neglect. The Texas Family Code heightens the reporting requirement for an attorney working with a child in a professional capacity, such as serving as an ad litem for a child.
At minimum, the reporting party must provide the name of the child and details of the suspected child abuse or neglect.
Reporting & Attorney-Client Privilege
Due to strong policies protecting children, if you represent a client who informs you, in the course of representation and under the protection of attorney-client privilege, he or she abused or neglected a child, you are still obligated to report this suspected abuse or neglect. However, such evidence, by itself, may be insufficient to protect a child if no exception to the attorney-client privilege exists under the Texas Rules of Evidence. Specifically, the Texas Family Code protects communications between an attorney and a client in a “proceeding regarding the abuse or neglect of a child.” But the Texas Family Code also provides reporting requirements apply “without exception to an individual whose personal communications may otherwise be privileged, including an attorney….” Texas courts have found an attorney’s failure to report suspected abuse or neglect of a child violates Texas reporting laws.
Conflict of Interest
The rules do not clarify whether a report made by an attorney against a client of suspected abuse or neglect of a child creates a conflict of interest requiring withdrawal. The reporting statutes do not even mandate disclosure by an attorney of a report, nor do they require withdrawal from representation. If you suspect a client abused or neglected a child, the best practice is to advise the client of your obligation to report the suspected abuse or neglect in writing.
The decision to withdraw would require an assessment of the specific facts of your client’s case and a determination of whether your report will materially affect your client during your representation by subjecting him or her to civil and criminal charges, applying the rules regarding a conflict of interest set forth by the Texas Disciplinary Rules of Professional Conduct. Notably, if a conflict does exist, a client cannot waive this conflict due to the associated penalties.
Reporting Is (Usually) Confidential
Generally, the identity of a person reporting abuse or neglect remains confidential (except to law enforcement). However, a court may still order disclosure of the identity of the person reporting child abuse or neglect. Also, a reporting party has the option to waive confidentiality in writing when making the report or any time after the report is made. In addition to the near absolute confidentiality protection, such person is also provided other protections under the law, such as protection from employment discrimination, termination, or suspension.
Consequences of Failing to Report (and for Reporting)
A person who fails to report suspected child abuse or neglect may face criminal penalties. A failure to report the first time is usually classified as a Class A misdemeanor.
Warning: Be thoughtful about the basis for your report. The Texas Family Code does not protect a person reporting abuse or neglect from civil or criminal liability if that person is reporting his or her own abuse or neglect of a child or intentionally files a false report against someone else.
Reporting Suspected Child Abuse or Neglect
The Texas Department of Family and Protective Services, reporting directly to the Governor of Texas, is required to investigate all reports of child abuse or neglect. If you have a good-faith suspicion of child abuse or neglect, report your suspicion to any local or state law enforcement agency, the Texas Department of Family and Protective Services, or the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse or neglect occurred. More information on reporting can be found at: www.dfps.state.tx.us/Contact_Us/report_abuse.asp.
Laura H. Caston is a family law attorney at Quilling, Selander, Lownds, Winslett & Moser, P.C. She can be reached at firstname.lastname@example.org.