By James C. Backstrom
There is a role for everyone in ensuring that our children are as safe and secure as possible. As a career prosecutor, I can tell you that far too many children are abused and neglected each year in our state and nation. Tragically, only a small percentage of these cases ever get reported to child protection authorities, law enforcement, and prosecutors, thereby enabling these professionals to intervene to protect those children who have been harmed and hold accountable the perpetrators.
One way to improve the number of child abuse cases reported to the appropriate authorities is to periodically remind professionals who are mandatory reporters under the law what their responsibilities are and to encourage all other persons who witness or learn of a child being harmed or in danger to voluntarily report such information. Both mandatory and voluntary reporters of child abuse and neglect have legal protections, including confidentiality and immunity, unless the reporter does not act in good faith and knowingly files a false report. This article is intended to raise awareness within the legal profession of both mandatory and voluntary reporting laws in Minnesota and to encourage the reporting of these concerns to the proper authorities so immediate interventions can be undertaken.
In 1975, the Minnesota Legislature enacted Minn. Stat. §626.556 mandating that certain people report the maltreatment of minors. The statute has been amended several times since it was originally enacted, but its purpose has not changed:
“The legislature hereby declares that the public policy of the state is to protect children whose health or welfare may be jeopardized through physical abuse, neglect, or sexual abuse…
In addition, it is the policy of this state to:
(1) require the reporting of neglect or physical or sexual abuse of children in the home, school, and community settings;
(2) provide for the voluntary reporting of abuse or neglect of children;
(3) require an investigation when the report alleges sexual abuse or substantial child endangerment;
(4) provide a family assessment, if appropriate, when the report does not allege sexual abuse or substantial child endangerment; and
(5) provide protective, family support, and family preservation services when needed in appropriate cases.”1
The persons who must report under this statute are those individuals who: (1) know or have reason to believe that a child is being neglected or physically or sexually abused as defined in the statute, or has been neglected or physically or sexually abused within the preceding three years;2 (2) are a professional or a professional’s delegate; and (3) are engaged in the practice of the healing arts, social services, hospital administration, psychological or psychiatric treatment, child care, education, correctional supervision, probation and correctional services, or law enforcement.3 If a person is employed as a member of the clergy and received the information while engaged in ministerial duties, they must also report unless the information is privileged under Minn. Stat. §595.02, subd. 1(c).4 In other words, “mandated reporters” include the professionals in the above-listed fields who regularly come into contact with families and children as part of their duties.
Many public employees are mandated reporters, such as:
- social workers and other professional staff in a social services department;
- law enforcement officers and other professional staff in a sheriff’s office or police department;
- public health nurses and other professional staff in a public health department;
- county or city attorneys, assistant county or city attorneys, and other professional staff in the county or city attorney’s office;
- probation officers, corrections officers, and other professional staff in a community corrections department;
- child support officers and other professional staff in a child support enforcement program; and
- professional workers in an employment / economic assistance department.
This list is not intended to be exhaustive, but it includes those who are clearly within the definition.
In addition, many others in the private sector are also mandated reporters, such as:
- health care professionals and other professional staff working with the health care professional;
- child care providers and other professional staff working with child care providers;
- education professionals and other professional staff working with the education professional.
This list is also not exhaustive.
A mandated reporter must report suspected incidents of neglect or abuse of a child, including both the direct observations of such abuse or neglect (e.g., personally seeing physical injury to a child) and indirect information that gives the mandated reporter reason to believe a child is being neglected or abused. The law requires a mandated reporter to report immediately (meaning within 24 hours)5 the neglect or physical or sexual abuse to either the child protection agency of the county (or tribal agency), the county’s sheriff’s department, or the local police department (or tribal police department).6 Child protection agencies and law enforcement agencies have the duty to cross-report incidents of reported child abuse or neglect. Such cross-reporting is not optional but required in all circumstances and, therefore, mandated reporters do not need to report to both agencies. If a mandated reporter knows or has reason to know that a child is being concealed or withheld from their parent or custodian in violation of Minn. Stat. §609.25 (Kidnapping) or §609.26 (Depriving Another of Custodial or Parental Rights), they must also make a report as outlined above.7
The terms neglect, physical abuse, and sexual abuse are all defined in the child protection statute (see these definitions in the endnote below).8 It is important that all mandatory reporters be familiar with what constitutes neglect, physical abuse, and sexual abuse for reporting purposes.
Mandated reports involving possible physical abuse or neglect are required if the abuse or neglect is perpetrated by a “person responsible for the child’s care,” which includes, among others, parents, guardians, others in the family that provide care for the child, and others caring for the child in the community, such as teachers, school administrators, day-care providers, paid or unpaid babysitters, playground monitors, coaches, clergy, counselors, or other persons who have assumed responsibility for a child’s care, even if this is on a temporary or short-term basis.9 Mandated reports involving possible sexual abuse are required if the abuse is perpetrated by a “person responsible for the child’s care,” or by a person who has a “significant relationship” to the child, as defined in Minn. Stat. §609.341, subd. 1510 or by a person in a “position of authority” over the child, as defined in Minn. Stat. §609.341, subd. 10.11
Besides physical and sexual abuse and neglect, threatened injury and mental injury must also be reported. Threatened injury means a statement, overt act, condition, or status that represents a substantial risk of physical or sexual abuse or mental injury.12 For example, leaving a child in the care of someone who has had their own parental rights involuntarily transferred or terminated would constitute a “threatened injury.” Mental injury is an injury to the psychological capacity or emotional stability of the child.13 This can be evidenced by any impairment in the child’s ability to function “within a normal range of performance and behavior with due regard to the child’s culture.”14
The initial report by a mandated reporter (which can be oral or written) must be followed within 72 hours (excluding weekends and holidays) by a written report,15 which must identify the child, any person believed to be responsible for the neglect or abuse, if known, the nature and extent of the abuse or neglect, and the name and address of the person reporting.16 The name of the reporter is confidential, and can only be disclosed with the consent of the reporter or if a court finds that the report was false and made in bad faith.17
The statute provides that a mandated reporter who knows or has reason to believe that a child is being neglected or physically or sexually abused, or has been neglected or abused within the past three years, and fails to report, is guilty of a misdemeanor.18 A mandated reporter who knows or has reason to believe that two or more children not related to the perpetrator have been physically or sexually abused by the same perpetrator within the preceding 10 years, and fails to report, is guilty of a gross misdemeanor.19
The law also has a provision for immunity from civil and criminal liability for making a voluntary or mandated report if the reporter acts in good faith. In other words, filing a truthful report based upon observations or information obtained from others will not expose the reporter to civil liability or criminal charges, even if it is later determined that no abuse had occurred.20
The question of whether a mandated reporter is required to report only when the information is received in the course of the mandated reporter’s official duties and while actually on duty, or if the mandated reporter must report at all times (on duty or off) remains unclear. There are currently 19 states, including Wisconsin, Iowa, and North Dakota, that limit the mandated reporter’s requirement to only report when they are acting in their “official capacity.” Meanwhile, 14 states have declared that all citizens are mandated reporters and make no distinction regarding professions or certain job titles. Minnesota is one of 17 states that list the qualifications for a “mandated reporter,” but Minnesota’s statute is silent as to whether the scope of the requirement to report applies to information received while the mandated reporter is off duty. Since 2012, four states in this category have litigated the issue.
Delaware, Georgia, and Washington have all separately held that their state’s respective mandatory reporting law did not extend a mandated reporter’s duties outside of the mandated reporter’s professional capacity.21 In other words, in those states a mandated reporter is not required to report suspected abuse or neglect if it is learned of outside the scope of employment. Conversely, the Colorado Court of Appeals has recently ruled in the negative on this issue, holding that a “teacher’s reporting duties do not cease when he or she leaves the classroom.”22 The wording of Minnesota’s mandatory reporting statute is more similar to those in Delaware, Georgia and Washington, than to Colorado’s law.23 Based on these recent decisions, and the wording of the Minnesota statute, it does not appear that current Minnesota law requires mandatory reports outside of “on-duty” situations. Of course, voluntary reporting is always encouraged to protect vulnerable children.
Even if a person does not meet the definition of a mandated reporter, anyone can make voluntary reports whenever they have information that a child is being or has been neglected or physically or sexually abused, or threatened with abuse. Even if the abuse occurred some time ago, a voluntary report is encouraged as this may prevent further injury or harm to the child or other siblings. The same immunity applies whether a reporter makes a mandated or voluntary report, provided the report is made in good faith—i.e. that the report is not knowingly false.24 It is important to remember that the purpose behind the mandatory reporting law is to protect children. Voluntary reports further this same purpose. Without these reports, there is no opportunity for law enforcement and child protection to investigate the situation and intervene to protect children when this is necessary.
JAMES C. BACKSTROM has served as the county attorney in Dakota County, Minnesota since 1987 and is a member of the board of directors of the National District Attorneys Association and Minnesota County Attorneys Association. Civil Division Law Clerk Adam Rowe-Johnson contributed to the research and drafting of this article.
Notes
1 Minn. Stat. §626.556, subds. 1(a) and 1(b).
2 Minn. Stat. §626.556, subd. 3(a).
3 Minn. Stat. §626.556, subd. 3(a)(1).
4 Minn. Stat. §626.556, subd. 3(a)(2).
5 Minn. Stat. §626.556, subd. 3(e).
6 Minn. Stat. §626.556, subd. 3(b).
7 Minn. Stat. §626.556, subd. 3(a).
8 Minn. Stat. §626.556, subd. 2(g) “”Neglect’ means the commission or omission of any of the acts specified under clauses (1) to (9), other than by accidental means:
1) failure by a person responsible for a child’s care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child’s physical or mental health when reasonably able to do so;
2) failure to protect a child from conditions or actions that seriously endanger the child’s physical or mental health when reasonably able to do so, including a growth delay, which may be referred to as a failure to thrive, that has been diagnosed by a physician and is due to parental neglect;
3) failure to provide for necessary supervision or child care arrangements appropriate for a child after considering factors as the child’s age, mental ability, physical condition, length of absence, or environment, when the child is unable to care for the child’s own basic needs or safety, or the basic needs or safety of another child in their care;
4) failure to ensure that the child is educated as defined in sections 120A.22 and 260C.163, subdivision 11 which does not include a parent’s refusal to provide the parent’s child with sympathomimetic medications, consistent with section 125A.091, subdivision 5;
5) nothing in this section shall be construed to mean that a child is neglected solely because the child’s parent, guardian, or other person responsible for the child’s care in good faith selects and depends upon spiritual means or prayer for treatment or care of disease or remedial care of the child in lieu of medical care; except that a parent, guardian, or caretaker, or a person mandated to report pursuant to subdivision 3, has a duty to report if a lack of medical care may cause serious danger to the child’s health. This section does not impose upon persons, not otherwise legally responsible for providing a child with necessary food, clothing, shelter, education, or medical care, a duty to provide that care;
6) prenatal exposure to a controlled substance, as defined in section 253B.02, subdivision 2, used by the mother for a nonmedical purpose, as evidenced by withdrawal symptoms in the child at birth, results of a toxicology test performed on the mother at delivery or the child at birth, medical effects or developmental delays during the child’s first year of life that medically indicate prenatal exposure to a controlled substance, or the presence of a fetal alcohol spectrum disorder;”
Minn. Stat. §626.555, subd. 2(k), “‘Physical abuse’ means any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child’s care on a child other than by accidental means, or any physical or mental injury that cannot reasonably be explained by the child’s history of injuries, or any aversive or deprivation procedures, or regulated interventions, that have not been authorized under section 125A.0942 or 245.825. Abuse does not include reasonable and moderate physical discipline of a child administered by a parent or legal guardian which does not result in an injury. Abuse does not include the use of reasonable force by a teacher, principal, or school employee as allowed by section 121A.582. Actions which are not reasonable and moderate include, but are not limited to, any of the following:
(1) throwing, kicking, burning, biting, or cutting a child;
(2) striking a child with a closed fist;
(3) shaking a child under age three;
(4) striking or other actions which result in any nonaccidental injury to a child under 18 months of age;
(5) unreasonable interference with a child’s breathing;
(6) threatening a child with a weapon, as defined in section 609.02, subdivision 6;
(7) striking a child under age one on the face or head;
(8) striking a child who is at least age one but under age four on the face or head, which results in an injury;
(9) purposely giving a child poison, alcohol, or dangerous, harmful, or controlled substances which were not prescribed for the child by a practitioner, in order to control or punish the child; or other substances that substantially affect the child’s behavior, motor coordination, or judgment or that results in sickness or internal injury, or subjects the child to medical procedures that would be unnecessary if the child were not exposed to the substances;
(10) unreasonable physical confinement or restraint not permitted under section 609.379, including but not limited to tying, caging, or chaining; or
(11) in a school facility or school zone, an act by a person responsible for the child’s care that is a violation under section 121A.58.”
Minn. Stat. §626.55, subd. 2(n) “‘Sexual abuse’ means the subjection of a child by a person responsible for the child’s care, by a person who has a significant relationship to the child, as defined in section 609.341, or by a person in a position of authority, as defined in section 609.341, subdivision 10, to any act which constitutes a violation of section 609.342 (criminal sexual conduct in the first degree), 609.343 (criminal sexual conduct in the second degree), 609.344 (criminal sexual conduct in the third degree), 609.345 (criminal sexual conduct in the fourth degree), or 609.3451 (criminal sexual conduct in the fifth degree). Sexual abuse also includes any act which involves a minor which constitutes a violation of prostitution offenses under sections 609.321 to 609.324 or 617.246. Effective May 29, 2017, sexual abuse includes all reports of known or suspected child sex trafficking involving a child who is identified as a victim of sex trafficking. Sexual abuse includes child sex trafficking as defined in section 609.321, subdivisions 7a and 7b. Sexual abuse includes threatened sexual abuse which includes the status of a parent or household member who has committed a violation which requires registration as an offender under section 243.166, subdivision 1b, paragraph (a) or (b), or required registration under section 243.166, subdivision 1b, paragraph (a) or (b).”
9 Minn. Stat. §626.556, subd. 2(j).
10 “Significant relationship” is defined as “a situation in which the actor is:
(1) the complainant’s parent, stepparent, or guardian;
(2) any of the following persons related to the complainant by blood, marriage, or adoption: brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, great-grandparent, great-uncle, great aunt; or
(3) an adult who jointly resides intermittently or regularly in the same dwelling as the complainant and who is not the complainant’s spouse.”
11 “Position of authority over a child” is defined as including but not limited to “any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties or responsibilities to a child, or a person who is charged with any duty or responsibility for health, welfare, or supervision of a child, either independently or through another, no matter how brief, at the time of the act.” For defined sexual contact, it includes a psychotherapist.
12 Minn. Stat. §626.556, subd. 2(p).
13 Minn. Stat. §626.556, subd. 2(f).
14 Minn. Stat. §626.556, subd. 2(f).
15 Minn. Stat. §626.556, subd. 7(a).
16 Minn. Stat. §626.556, subd. 7(c).
17 Minn. Stat. §626.556, subds. 7(i) and 11(a).
18 Minn. Stat. §626.556, subd. 6(a).
19 Minn. Stat. §626.556, subd. 6(b).
20 Minn. Stat. §626.556, subd. 4(a).
21 See Delaware Board of Nursing v. Gillespie, 41 A.3d 423 (Del. 2012); May v. State, 761 S.E.2d 38 (Ga. 2014); State v. James-Buhl, 415 P.3d 234 (Wash. 2018).
22 Heotis v. Colorado State Board of Education, 2019 WL 1087027 (Colo. App. 2019).
23 Colorado’s statute includes limiting language regarding the duty to report in an official capacity in one subsection but not in another, creating an assumption that this silence was purposeful. The statute also includes two express exceptions for the mandated reporter; it can then be presumed that these express exceptions exclude all other implied exceptions in the statute. Minnesota’s statute includes neither exceptions nor limiting language in any part of its mandated reporter statute.
24 Minn. Stat. §626.556, subd. 4(a).\