Because many parents who abuse substances also neglect or
abuse their children, it is common for clients in substance abuse
treatment to have contact with some part of the child protective
services (CPS) system. While the organizational roles and titles
will vary, a CPS agency is the part of a State's child welfare
system responsible for investigating and processing child abuse
and neglect cases. For convenience, the term "CPS agencies"
is used in this chapter to refer to all aspects of social services
related to child welfare. For more on the role of CPS agencies,
see Chapter 5.
Some substance-abusing parents will be drawn into the CPS system during treatment; others will be compelled into substance
abuse treatment by a CPS agency. In either case, it is critical
that treatment providers become familiar with the laws governing
the child protective system, including
How child abuse and neglect are defined
Whether, when, and how a counselor must report a parent or
other primary caretaker--or a parent who was maltreated in childhood--to
a CPS agency or police
What happens after a report is made
How State-mandated family preservation services operate
How welfare reform will affect clients in treatment
There are a number of Federal and State laws designed to protect
the health and safety of children:
State criminal statutes outlawing certain
acts
State civil statutes prohibiting child abuse and neglect
State mandatory reporting laws requiring certain categories
of persons to report suspected child abuse or neglect
State "family preservation" laws offering families certain
services or requiring families to participate in substance abuse
treatment or types of counseling
State "fast track" adoption laws that limit the time a child
may remain in foster care before the State brings proceedings
to terminate parental rights and free the child for adoption
Federal laws requiring States to adopt policies, goals, and
time limits in the child welfare realm
Complicating the picture are the Federal law and regulations
governing confidentiality of information about clients in substance
abuse treatment (42 U.S.C. §290dd-2; 42 Code of Federal
Regulations [C.F.R.], Part 2), which restrict the circumstances
under which programs can make disclosures about clients, as well
as the information they can disclose. This chapter explains
the legal requirements treatment providers must follow, discusses
the difficulties and potential conflicts that may arise, and
offers some guidelines to help minimize legal difficulties and
clinical dilemmas.
All States require designated groups of individuals to report
incidents of known or suspected child abuse or neglect. Eighteen
States, in fact, require all citizens to report suspected abuse
or neglect; other State mandatory reporting statutes often include
substance abuse treatment staff, particularly staff comprised
of State-licensed therapists, nurses, and social workers. If
a professional's failure to report results in injury to the child,
he may face criminal charges or a civil suit for damages or suspension
or revocation of his professional license. Those who are mandated
reporters under State law generally are immune from liability
for reports made in good faith that are later found unsubstantiated
or erroneous. In some States, any person or agency that employs
individuals who are mandated reporters must provide all employees
with written information outlining the reporting requirements.
An adult survivor of abuse, however, usually discusses events
that took place many years before. In these situations, there
is generally not a duty to report and often little legal recourse
for the survivor. A counselor is generally under no obligation
to report abuse or neglect that the client describes suffering
as a child many years ago. CPS agencies are not interested in
investigating cases in which no child is in imminent danger.
However, if the person who abused or neglected the client now
has custody of other children, the program should seek advice
about whether it has reporting responsibility. If a client consents,
the program can report the situation even if it is not mandated
to do so. The situation is more complicated if, while in treatment,
a client has had to leave her children with a family member who
is the same person who abused her as a child. She may fear for
her children's safety but have no alternatives for child care
and therefore may not even identify this person as the perpetrator.
All States specify how reports must be made. Most require
an immediate oral (spoken) report, and many now have toll-free
telephone numbers to facilitate reporting. Most States require
that reports include
The age and address of the child
The address and name of the parent or caretaker
The type of abuse or neglect, as specific and factual as
possible
The name of the perpetrator
Most States require oral reports to be confirmed in writing
and within a given time frame. State statutory reporting procedures
are available on the Internet at http://www.calib.com/nccanch/services/statutes.html.
Substance abuse treatment providers should disclose only the
information required by State law when they report child abuse
or neglect. Counselors and other staff members in treatment
agencies are permitted to comply with State mandatory reporting
laws under a narrow exception in the Federal confidentiality
regulations. Those regulations (which are discussed below and
in Appendix B) generally prohibit
substance abuse treatment agencies and their staff from disclosing
client-identifying information to anyone without the client's
written consent. The child abuse reporting exception applies
only to initial reports of child abuse or neglect (42 C.F.R.
§2.12 (c)(6)). Programs may not respond to followup
requests for information or to subpoenas for additional information,
even if the records are sought for use in civil or criminal proceedings
resulting from the program's initial report. (See below for
a discussion of how to deal with such requests.) That means
that in making an initial report of suspected abuse to a CPS
or other designated agency, the mandated reporter should provide
only the basic information required by the State mandatory reporting
law. The counselor may give her name and the name of the program,
and if the law requires it, she must. No other information should
be disclosed without the client's written consent.
Please note that these guidelines are an explanation of current
Federal and State laws regarding client confidentiality for substance
abuse treatment programs. They are meant to help reduce legal
complications that could interfere with a client's treatment--or
a program's operation. They are not meant to imply or encourage
an adversarial relationship with CPS agencies. Ongoing collaboration
is important and allowed when appropriate consent forms are
signed. With more than 50 percent of child protective cases
involving substance abuse, CPS agencies are dependent on the
expertise of the treatment agencies.
Agencies providing substance abuse treatment should develop
a protocol to handle legal requirements. For example, an agency
may have a protocol that requires the counselor to discuss the
case in question with a supervisor. If they decide the case
is reportable, then the supervisor discusses it with the clinical
director. If more information is sought, such as by subpoena,
the director would contact a lawyer. Orientation for new staff
members should include the agency's reporting policies and procedures.
It is recommended that these policies include provisions requiring
staff members to inform their supervisor or appropriate program
personnel whenever they make a report, as well as the need to
consult with their supervisor whenever they have concerns regarding
the need to report.
Many substance abuse treatment agencies have found it useful
to designate a capable member of the staff to
Handle all requests for information from
outside individuals or organizations when no proper consent form
exists to authorize a release of information
Keep current with developments in the area of child abuse
and neglect, including court decisions that clarify what conditions
are reportable and how reports should be made
Develop and update a list of resources the agency can consult
when difficult questions arise (e.g., there may be a member of
the agency's governing board who is a lawyer who would be willing
to provide advice in difficult cases)
Develop a form to use in making reports so only specific,
relevant information is given
Be careful of letterheads, logos, and headings on fax machines
that may inadvertently reveal that the treatment center is involved
A list of other potential sources of assistance appears in
Figure 6-1.
Counselors may be concerned that compliance with the mandatory
reporting law will damage the client-counselor relationship or
trigger relapse. A recent study shows that neither is likely
to occur: Most clients stay in treatment after a report, and
many are able to overcome the negative feelings that often result
(Steinberg et al., 1997).
There are ways to limit the potential damage to the therapeutic
relationship. The first is to inform the client about the mandatory
reporting law at the time of admission (Watson
and Levine, 1989). This practice is actually required by
the Federal confidentiality regulations. §2.22 of the regulations
requires that substance abuse treatment programs give all clients
a notice describing the confidentiality rules, as well as their
exceptions (which include mandatory child abuse reporting), upon
admission or as soon thereafter as possible. (The regulations
contain a sample notice at §2.22(d) that may be used for
this purpose.) This practice is also endorsed by the American
Psychological Association and the Code of Ethics for Social Workers
(Kalichman, 1993).
A second way to limit damage is to provide the client an opportunity
to self-report. Self-reporting "affords the individual an opportunity
to assume responsibility for his or her own actions and allows
for at least some control in what otherwise might be a powerless
situation" (Kalichman, 1993, p. 126).
If the client makes the report from the counselor's office, the
counselor can provide appropriate support. Counselors should
be aware, however, that although this might preserve the therapeutic
relationship, it may not fulfill the counselor's statutorily
imposed duty to make a report. Sometimes it is possible to minimize
damage to the relationship by completing the report (both oral
and written) in the client's presence.
If there is imminent risk to a child, the counselor may not
have time to engage the parent in the process. For example,
if a counselor learns that the client has scalded his child and
tied him to the bed, it would be appropriate to contact a CPS
agency immediately. Similarly, if there is a risk that the client
will continue his behavior and seek to cover his tracks, the
counselor would probably not involve him in the report or inform
him until after it has been made.
Although counselors may sometimes be tempted to use the threat
of reports to coerce clients into complying with treatment requirements,
counselors must remember that the purpose of the reporting laws
is to protect children--not to provide counselors with
a bargaining chip in the treatment process.
Reporting may advance a client's recovery by providing an
appropriate limit-setting example, increasing the parent's sense
of responsibility for harmful behavior, and giving the family
an opportunity to change. Parents may be relieved after a report
has been made that external control has been introduced into
a situation that frightens them as much as it does the children.
Reporting may also open a dialog with the client concerning
family relationships and any personal history of abuse, if one
exists. Whether these positive results occur appears to depend
on when the report is made (earlier in treatment is more likely
to affect the relationship negatively), how much support the
counselor offers when the report is made, and how well the counselor
deals with the client's anxiety and anger (Melton
et al., 1995).
The National Center on Child Abuse and Neglect offers the
following guidance:
The law does not require mandated reporters to tell the
parents that a report is being made; however, in the majority
of cases, advising the client is therapeutically advisable.
First, the therapist is employing clinical leverage by using
authority to set a firm and necessary limit... Second, if the
therapist does not mention the report, there is secrecy and tension,
which may result in the clients' feelings of suspicion, isolation,
or betrayal. In some cases, reporting may elicit an extreme
response from the clients... It can be very beneficial to give
clients the opportunity to make the reports themselves in the
therapist's presence (Peterson and Urquiza,
1993, p. 13).
Although the manner in which the counselor makes the report
may affect the counselor-client relationship, the importance
of that relationship must not override the counselor's responsibility
to fulfill the statutorily imposed obligation to report when
a report is necessary to protect a child. If a client has a
history of violence, the counselor must also consider her own
safety when deciding how much to include the client in the reporting
process.
Failure to comply with statutory reporting mandates or to
limit the report as required by the Federal confidentiality regulations
can place the individual counselor and the counseling agency
at risk. Therefore, everyone in the agency who is required by
law to report suspected abuse or neglect must clearly understand
when and how a report must be made and what information must
be reported.
The best practice is to adopt a written policy or protocol
before a case arises. Recently hired counselors should read
or be given training on such policies. Reporting policies and
procedures should include a reference to the State's legal requirements,
including the definitions of child abuse and neglect, the categories
of persons who must report, what information must be in the report,
and how a report should be made and documented. Specifically,
the Consensus Panel recommends that agency policy include
A statement that the agency strictly adheres
to the State's mandatory reporting laws
The State's definition of abuse and neglect
The State law delineating when reports must be made (e.g.,
when a counselor has "reasonable suspicion" or "reasonable belief")
A list of the categories of persons who are mandated reporters
An outline of the information that must be reported and a
statement that no other information will be disclosed unless
the client has consented in writing
The name, address, and telephone number of the person or
agency to whom the report must be made (Generally, jurisdictions
require persons who suspect child abuse or neglect to telephone
a report to the local CPS agency or the department of human services
and follow it with written confirmation.)
A requirement that clients receive a notice, when they are
admitted, summarizing the Federal confidentiality regulations
and the child abuse reporting exception (§2.22(a)) (The
Federal regulations contain a sample notice that may be used
for this purpose; the Consensus Panel recommends that the client
be required to acknowledge in writing receipt of the notice.)
A requirement that staff members who are mandated reporters
consult a supervisor or team leader before calling the CPS agency
to report suspected child abuse or neglect unless the situation
is an emergency (Some States require that the agency as well
as the individual care provider make a report; moreover, consulting
with a supervisor ensures that the wisest decision is made in
this emotionally charged area, particularly in ambiguous or doubtful
cases, and it will ensure that the agency is prepared to handle
any legal issues that may subsequently arise.)
A statement describing how the report must be documented
in the agency's records (At a minimum, documentation should
include the name of person and agency to whom a telephone call
was made, the date and time of the call, the information provided,
a copy of the written confirmation, and a notation of whether
and when the parent was notified of the report.)
Guidelines describing when and how the client will be notified,
including a description of the circumstances under which a parent
should not be notified because of danger to the child
A procedure for review of all cases and of issues that arise
after reporting (Routine review will ensure that any problems,
whether of a procedural or therapeutic nature, will be addressed
expeditiously.)
A requirement that orientation for all new staff include
the agency's reporting policies and procedures and a statement
that the agency will provide ongoing training in this area
All 50 States and the District of Columbia have statutes that
protect children from abuse and neglect by their parents or others.
There are criminal statutes prohibiting certain acts (or failures
to act), violation of which may lead to imprisonment. There
are also civil statutes that prohibit abuse and neglect. If
these statutes are violated, the court may impose requirements
that parents accept certain kinds of help (such as substance
abuse treatment, parenting classes, or anger management training),
that their children be removed from the home, or that their parental
rights be terminated.
Most States define abuse as an act or failure to act that
results in nonaccidental physical injury or sexual abuse of a
child. Neglect generally includes the denial of adequate food,
shelter, supervision, clothing, or medical care when such resources
or services are available. As noted in Chapter
1, each State defines abuse and neglect differently, and
the conditions considered to be neglect or abuse in one State
may not be the same in others. Because State law often requires
that treatment providers report suspected abuse and neglect,
treatment staff should become familiar with their State's definitions
of abuse and neglect. Staff can contact the State's CPS agency
for information on current laws. (If the abuse occurred in another
State, or if the perpetrator is currently living in another State,
it is wise to check on the laws in the other State to ensure
compliance. At times, there may be a need to report in both
States.) Readers can also find State statutory child abuse and
neglect definitions on the Internet at http://www.calib.com/nccanch/services/statutes.htm.
Federal definitions of these terms appear in the Child Abuse
Prevention and Treatment Act, 42 U.S.C. §5106(g). In some
cases, the CPS agency can be consulted regarding whether or not
a report must be made in a particular situation without divulging
confidential (i.e., identifying) information. Consultation with
the CPS agency must be done with great care, and this communication
can be noted in the client's chart.
Although each State's laws are different, the following conditions
are reportable in most States:
The child has been seriously physically
injured by a parent or other adult by other than accidental means.
The child appears injured or ill to the point that a reasonable
person would seek medical attention, but the parent has not sought
medical attention, refuses to consider it, or fails to follow
medical advice, putting the child at risk.
An adult has sexually touched (or made the child sexually
touch the adult), abused, or exploited the child.
The child is not registered for or attending school, and
the parent refuses to remedy the situation (home schooling must
be adequately documented).
Although the behaviors outlined above are the most blatant
examples of child abuse or neglect, other parental behaviors
or practices may put children at risk. For example, the following
may also constitute child abuse or neglect:
Leaving a young child alone and unsupervised
Inappropriate punishment that puts a child at risk (e.g.,
locking a young child out of the house as a punishment)
Depriving a young child of food for an extended period of
time
Treating one child, the "bad one," far more harshly than
others
Whether behaviors like these are reportable depends, in part,
on how State statutes define abuse and neglect, the seriousness
of the behavior or incident, its impact on the child, and the
counselor's perception of the client's overall behavior with
the child and of the client's willingness to correct inappropriate
behavior.
The difficulty for counselors is that substance abusers are
often the products of poor parenting themselves and many have
had little or no exposure to appropriate parenting behavior (
Whitfield, 1981). Without a reasonable
model of nurturing behavior, they may simply deal with their
children in the same inappropriate ways they were treated. They
may have no intention of harming their children and no notion
that they are putting their children at risk.
Because of these complicating factors, the decision whether
to report parents who treat their children inappropriately can
be rather difficult. Clearly, inappropriate child-rearing practices
cannot be ignored; they are important danger signals. Yet not
every inappropriate action a parent takes can--or should--be
reported. On the other hand, counselors must keep in mind that
they are required to report when they have a firm belief or a
reasonable suspicion (the statutory definition will vary) that
a child is abused or neglected (as that term is defined). Their
responsibility is limited to making a report; it does not include
conducting an investigation to determine whether the abuse or
neglect actually occurred. That is the job of the CPS agency.
There may also be timeframes within which reporting must occur,
and sanctions for failure to report.
If counselors are unsure of how to proceed or what is required
in a murky or complex case, they should consult with a supervisor,
a colleague in the treatment program, or others (see Figure
6-1).
Of course, such consultation must be made without violating Federal
confidentiality regulations.
(See Appendix B for a further discussion
of this issue.)
As this chapter advises earlier in "Developing Reporting Policies
and Procedures," programs should adopt written policies governing
child abuse reporting and should require counselors to consult
with supervisors before making a child abuse or neglect report.
Ongoing training and a thorough knowledge of community resources
will help counselors determine what actions are most likely to
benefit the child and whether reporting is required.
The differences in the ways States define child abuse and
neglect are particularly striking in the area of parental substance
abuse. In some States, parental substance abuse, by itself,
may constitute child abuse or neglect. In others, something
more must be shown. For example, in South Carolina, giving birth
to a drug-exposed infant is a criminal offense; a conviction
may send the mother to prison (State v. Whitner,
328 S.C. 1, 492; S.E. 2d 777 [1997], cert. denied, 118
S. Ct. 1857 [1998]). In other States, like New York, "[a] report
which shows only a positive toxicology for a controlled substance
[in the newborn] generally does not in and of itself prove that
a child has been [neglected]" (Nassau County Department of
Social Services v. Denise J., 87 N.Y. 2d 73, 661 N.E.
2d 138, 637 NYS 2d 666 [1995]).
New York offers a particularly interesting approach to the
question of parental substance abuse, as it distinguishes among
three kinds: (1) those parents who misuse substances but not
to the extent that they become intoxicated, unconscious, or their
judgment is impaired; (2) those parents who misuse substances
but are in treatment; and (3) those parents not in treatment
who misuse substances to the extent that they become intoxicated,
unconscious, or their judgment is impaired.
In New York, a CPS agency that brings a neglect proceeding
against a parent who uses substances must show, at a minimum,
that the parent "repeatedly misuses a drug or drugs or alcoholic
beverages, to the extent that it has or would ordinarily have
the effect of producing a substantial state of stupor, unconsciousness,
intoxication, hallucination, disorientation or incompetence,
or a substantial impairment of judgment or a substantial manifestation
of irrationality...." Substance abuse below that level is not
prima facie evidence of neglect. When a parent is in treatment,
the State may not use "such drug or alcoholic beverage misuse
[as] prima facie evidence of neglect" even if it results
in "a substantial state of stupor" (§1046(b)(iii) of the
Family Court Act).
Similarly, for a court to rule that a child is neglected because
of the substance abuse of a parent who is not in treatment, the
court need find only that the parent's substance abuse results
in loss of self-control of his actions. On the other hand, if
the parent is voluntarily and regularly participating in treatment,
the court cannot make a ruling of neglect unless it finds (1)
that the substance abuse results in the loss of self-control
and (2) that there is sufficient evidence that the "child's physical,
mental or emotional condition has been impaired or is in imminent
danger of becoming impaired" (§1012(f) of the Family Court
Act).
The wide variation in the way States define child abuse and
neglect makes it imperative that providers be familiar with their
States' statutes.
Many States have employed both criminal and civil sanctions
in an attempt to penalize pregnant women who use substances for
the harm they may be causing the fetus. Since until recently
no existing criminal statute directly addressed prenatal injury
to the fetus by a substance-using mother, criminal prosecutors
have used "State statutes related to child abuse and neglect,
involuntary manslaughter, prohibitions on delivery or distribution
of controlled substances to minor, and pure drug use" (Garrity-Rokous,
1994, p. 219). By 1991, at least 19 States and the District
of Columbia charged women with felonies for substance use during
pregnancy.
Many courts have also disregarded sentencing guidelines and
imprisoned pregnant drug users for terms long enough to ensure
their infants were born drug free (Garrity-Rokous,
1994). The South Carolina State Supreme Court was the first
to rule that a viable fetus could be considered a "person" under
child abuse laws. (In other States, however, courts have held
that child endangerment laws do not apply to fetuses.) In South
Carolina, district attorneys were directed to treat situations
in which a pregnant woman is using drugs as subject to duty-to-report
provisions, placing medical personnel and counselors in legal
jeopardy if they failed to inform authorities of such a pregnancy.
In a related trend, judges commonly remand substance-using pregnant
women who are arrested for prostitution, drug peddling, or other
crimes to residential treatment centers, which are ordinarily
reserved for persons with severe substance dependence.
Mothers who give birth to babies who are born harmed by or
addicted to illegal substances may also face legal consequences.
Child abuse and neglect laws have been passed in some States
specifying that the birth of an infant who is addicted to an
illegal substance constitutes a mandated reporting situation.
A South Carolina woman was sentenced to a 5-year prison term
for child neglect when her child was born with cocaine in his
system. In a well-known 1989 Florida case, another woman was
arrested and mandated into residential treatment for child abuse
because of evidence of cocaine in the umbilical cord at birth.
Because a fetus is not considered a "person" in Florida, the
State prosecutor had to show that the woman "delivered drugs"
to the baby in the brief period before the umbilical cord was
cut (Garrity-Rokous, 1994). Eventually,
the Florida Supreme Court overturned this conviction. Even so,
there has been a movement in some States to define any maternal
substance use during pregnancy as child abuse or neglect.
Significant cultural and economic issues are associated with
the way in which State reporting requirements are implemented.
One landmark study showed that a woman who delivers a substance-dependent
child is more likely to be reported if she is a woman of color
(Chasnoff et al., 1990). It is worth noting
that the same standards are not applied to women who use alcohol
or smoke, even though the consequences may be equally--or even
more--harmful for the baby. The long-term impact of fetal alcohol
syndrome is far more clearly documented than that of fetal exposure
to cocaine, for example. And according to at least one study,
maternal alcohol abuse may be the most frequent environmental
cause of mental retardation in the Western world (Ray
and Ksir, 1996).
If counselors are aware of these trends in their jurisdiction,
they will be better able to discuss the possible legal consequences
with pregnant women. At the same time, understanding the current
mood in the country will allow the counselor to understand better
the added stress felt by drug-abusing mothers. This pressure
is a good topic to discuss with pregnant clients in substance
abuse treatment. Counselors should be aware that the client's
concern for her unborn child, and the self-esteem issues evoked
by the situation, might help keep her in treatment--or lead to
relapse.
Once a professional, relative, or neighbor has made a report
about a child, the State or local CPS agency is supposed to take
action and investigate the complaint. If the complaint is unfounded
or unsubstantiated, it is dismissed, and there are no further
consequences. If, on the other hand, an initial investigation
substantiates the complaint, the CPS agency has a number of options:
It may reach an agreement with the family (without
filing any court action) regarding what changes are needed and
what services will help the family achieve those changes. It
will then develop a service plan outlining the remedial steps
the family has agreed to take and establishing a timetable for
the family to complete those steps.
A CPS agency can bring a neglect or abuse petition against
the parent or guardian in a family or trial-level court. After
a trial or fact-finding hearing, the court may take one of the
following actions:
Dismiss the petition (setting the parent free from further
obligation)
Issue an order requiring the parent to comply with all or
part of the CPS agency's service plan, an order the court may
review periodically to assess the parent's compliance (If the
parent fails to comply with the court's order, the court may,
after a hearing, either give the parent another chance or, if
the case has been pending for some time, the parent has made
little progress, or her behavior is particularly egregious, remove
the child and begin proceedings to terminate parental rights.)
Issue an order for the child's removal
If the situation is life threatening, a CPS agency can remove
the child (and any siblings) immediately and schedule a prompt
court hearing at which the parent or guardian may contest the
removal. If the court finds the removal unnecessary, the child
may be returned, but the parent may still be required to comply
with a service plan.
A CPS agency can refer the case to criminal justice officials.
The majority of child abuse or neglect reports will not result
in full-fledged court cases. Of those that do result in court
action, most are brought in a family court, where hearings are
closed to the public and files are sealed. Only rarely will
a report result in criminal charges against the parent.
Whatever is reported to the CPS agency or whatever action
that agency takes, if the parent contests the charges or objects
to the CPS agency's proposals, she is entitled to a hearing and
to be represented by an attorney. In this country, parents may
not have their children permanently removed or their parental
rights terminated or be punished or be required to go into substance
abuse treatment without a court proceeding. (Of course, parents
may find themselves coerced into agreeing to enter treatment
to retain their children.) In cases where a child has been removed
from a home against the parent's wishes, a hearing must be held
within a specified time, or the child must be returned. The
focus in any initial hearing will be placement of the child during
a CPS agency investigation or during any trial.
Unless the charges of child abuse or neglect are dismissed
(or the parent is charged with a crime and incarcerated), at
some point the CPS agency will meet with the client to assess
his needs and develop a service plan.
The plan should detail
The steps the client must take and the
terms and conditions he must meet to retain or regain custody
of the children
A timetable for accomplishment of each step, term, and condition
A list of resources the CPS agency will make available to
the family
It is the CPS agency's obligation to make every effort to
assist the client in retaining or regaining custody of his children.
The counselor's role can be critical for a client involved
in a child abuse or neglect investigation or proceeding. Getting
the client to sign a consent form allowing communication and
joint service planning can be an important first step (see Appendix B). The counselor can help
a client understand what is happening, help her stay focused
on what needs to be accomplished, and provide support and encouragement.
However, to offer the client sound assistance the counselor
needs some basic information:
Is this the first time the client has had
a case with a CPS agency?
What are the charges against the client (e.g., abuse, neglect)?
What precisely is the client charged with doing or not doing?
Has a child ever been removed from the client's home?
Does the client have a lawyer representing him? (The counselor
should ask the client to sign a consent form permitting the counselor
to communicate with the lawyer.)
At what stage is the client's case? Has the client agreed
to a service plan? Is he subject to a court order?
What actions must the client take to comply with the service
plan or court order? Is there a timetable?
What are the likely outcomes of the proceeding and is termination
of parental rights a possibility?
What is the client's view of the CPS agency and of the entire
situation?
Although some might think the last question strange, soliciting
the client's view of the CPS agency will help to maintain the
counselor-client relationship as the investigation unfolds.
Clients have often had negative experiences with CPS agencies
or other social service agencies that have intervened in their
lives, especially if cross-cultural issues are involved. If
a counselor acts on the assumption that the client thinks a CPS
agency is acting in her best interest, the counselor may well
alienate the client and close the door on what could be an opportunity
for developing a therapeutic alliance. In other words, if the
counselor characterizes the CPS agency's intentions as beneficent
and its intervention as beneficial, the client may well view
the counselor as naive at best, and possibly part of the "enemy
camp." It is best to begin a dialog with the client about the
role of the CPS organization. Perhaps the safest approach is
for the counselor to take the position that whether or not the
CPS agency's intentions are benign or its intervention is welcome,
it is a force with which the client must deal.
It is important, however, for the counselor to help the client
move past denial, hurt, and anger into a working relationship
with the CPS agency. She should not align or overidentify with
the client against the CPS agency. The counselor should make
it clear that his major role in this situation will be to work
with the client to ensure that the client understands and complies
with the CPS agency's or the court's requirements regarding substance
abuse treatment. To this end, the counselor should obtain a
copy of the service plan and review it with the client. The
terms and requirements of the service plan can often be integrated
effectively into counseling objectives.
In fact, the CPS system may have information for the treatment
provider on the client's substance abuse history and other relevant
clinical information. Collateral information from CPS agencies
on substance abuse evaluations can be invaluable in raising the
quality of the evaluation, providing accurate information, and
making better treatment decisions. (For guidelines on maintaining
client confidentiality and the legal requirements involved, please
see Appendix B.) Frequently clients
do not understand the severity of their situation and may minimize
or withhold information. This may be due to drug-related cognitive
impairments, low IQ, naivete regarding the legal system, or the
same denial and rationalization that sustained their addictions.
Service plans may include a comprehensive treatment plan involving
several agencies. Some communities have established multiagency
teams to coordinate support for families in crisis. In West
Hawaii, for example, a multidisciplinary team is formed to assist
the CPS agency worker in high-risk or complex cases, such as
severe abuse that results in hospitalization. Members of the
team represent the disciplines of medicine, nursing, psychology,
and social work. Because more than half of reported child abuse
and neglect cases involve substance abuse, a substance abuse
treatment professional has recently been added to the team.
The team helps the CPS agency worker assess the extent to which
further harm is likely to befall the child, gauge the family's
motivation and capacity for change, and weigh the advisability
of various options for protecting the child. Team members review
available documentation (such as case histories, school reports,
and medical records) in addition to contributing their own knowledge
of the family in question, providing a wide range of additional
support on an as-needed basis. Pediatricians assess the medical
needs and perform comprehensive abuse, neglect, and sexual abuse
exams. Consultants also provide expert witness testimony for
the family court.
The team approach can be extremely helpful to a client or
family involved in the child protective process. The team can
coordinate services so that requirements, appointments, and obligations
do not overwhelm the client and can reduce the number of conflicting
demands the client must meet. A team approach can be very helpful
in obtaining a more complete picture of the client and the severity
of the problem. A client often presents differently to various
practitioners and may share different information depending on
the practitioner's area of expertise and nature of the relationship
with the client. The difficulty for a treatment provider is
that before information may be shared with other agencies, the
client must sign a consent form permitting the program to communicate
freely with specified agencies. (In parallel fashion, the client
must have signed a consent form allowing the other agency to
communicate with the substance abuse treatment provider. Some
counselors address this by having the client sign the two consent
forms necessary for two-way communication and sending a copy
of the appropriate version to the other agency.) The other agencies
must also understand that they are prohibited by Federal regulations
from redisclosing any information they receive from the counselor
(see Appendix B).
Alcohol and drug counselors working with parents during CPS
agency investigations or court proceedings may find that the
CPS agency and others view them as a good source of information.
It is important to keep two things in mind. First, substance
abuse treatment programs and the child welfare system (including
both the courts and the CPS agency) have different concerns,
goals, and measures of success. Once the counselor has made
the initial report, her concern must turn to the client's progress
toward recovery. While the child protective system is also concerned
with the client's recovery, its focus is on the child's safety
and stability. These differences in primary focus mean that
while the alcohol and drug counselor can help the client achieve
recovery (and thereby successfully end the involvement of the
CPS agency), she cannot change either the client or the situation.
Sometimes, the treatment system's interest in the client's recovery
conflicts with the CPS agency's interest in protection of and
permanency planning for the child. For example, the counselor's
goal of having the client reduce his substance abuse (and allowing
sufficient time for that to happen) may conflict with the CPS
agency's goal of finding a permanent placement for a child who
has been in foster care for many months.
Counselors must keep in mind that they may communicate with
or respond to requests for information only when the proposed
communication conforms to one of the Federal regulations' narrow
exceptions permitting a disclosure. If a counselor fails to
abide by Federal confidentiality rules, an unpleasant and expensive
lawsuit may be brought against the program and possibly the counselor.
Moreover, if word spreads that the program fails to protect
information about its clients, it may have a difficult time in
retaining its clients' confidence and in attracting new clients
into its treatment services (as well as the possibility of professional
sanctions and relicensing difficulties).
The following discussion about communicating with parts of
the child welfare and legal systems relies heavily on four exceptions
to the Federal regulations that permit disclosures:
Proper written consent from the client
(§2.31)
Proper written criminal justice system consent from the client
(§2.35)
Court orders (§§2.64-2.66)
Qualified service organization agreements (§§2.11,
2.129(c)4))
Appendix B contains a full discussion
of the regulations, including these exceptions.
All professionals who work in the field of substance abuse
treatment are aware that their clients have serious problems
that may involve procuring and using illicit drugs. Abuse of
such illicit substances interferes with their lawful behavior
and, when they are parents, interferes with responsible parenting
(Magura and Laudet, 1996). Treatment providers,
therefore, will often need to interact with the legal and child
protective systems. The way in which counselors interact with
these agencies will vary from case to case. The counselor may
have to contact a CPS agency to report a client suspected of
child abuse, or the legal system may contact the counselor for
information about a client's participation in a treatment program.
Whatever the nature of the interaction with CPS agencies or
the legal system, counselors need to be aware of their legal
responsibilities.
The following subsections discuss how the counselor should
deal with various agencies. In all of these circumstances, the
Consensus Panel recommends that counselors (1) ask for their
supervisor's guidance on what boundaries to keep, (2) consult
their client, (3) use common sense, and (4) consult State law
(or a lawyer familiar with State law).
Even if a CPS agency has sent the program a Request for Information
Release that the client has already signed, if the form does
not comply with §2.31 of the Federal confidentiality regulations,
the counselor may not release any information. (For a sample
form that complies with the Federal regulations, see Appendix
B.) Even if the form complies with the Federal requirements,
the counselor should remember that a signed consent form does
not require her to disclose any information. The counselor should
still evaluate the appropriateness of the request in the context
of its impact on the client's treatment.
First, after getting the client's written consent to do so,
the counselor should consult with the client's lawyer. (Some
clients may not be aware that they have the right to an attorney
when custody of their children is being questioned.) The counselor
should ask the lawyer whether she has objections to the program's
making a disclosure and whether she thinks it is in the client's
interest for the program to disclose the requested information.
The lawyer may be pleased to know that the Federal confidentiality
regulations provide a way to limit the kind of information disclosed.
If the lawyer has no objections, the counselor can simply have
the client sign a valid consent form, making sure to limit the
scope of the disclosure as appropriate (and as the regulations
require). If the lawyer does have an objection, then it is best
to let her take the lead.
If the client has signed a proper consent form authorizing
the counselor to communicate with the caseworker at the CPS agency,
how much information should the counselor disclose and how active
a role should he take? In some cases, disclosing information
to the CPS agency or court will benefit the client. It may also
help the client if the counselor participates in developing a
service plan for the family. However, it is up to the client
and the lawyer, not the counselor, to determine whether communication
or cooperation with a CPS agency will benefit the client. Therefore,
it is essential that the counselor communicate with the client's
attorney before taking it upon himself to communicate
with a CPS agency.
Counselors should avoid using a standard report form in communicating
with a CPS agency, unless the form calls for a limited amount
of relevant, objective data. Each case is different, and a one-size-fits-all
approach may hurt the client. It is best to think through each
case on its own terms--with the help of the client's lawyer and
with appropriate supervision. Sometimes, however, CPS agencies
only need to know whether the client is participating in treatment,
what the program's expectations are, if the client's participation
has been satisfactory, the extent of drug involvement, and whether
the client has complied with specific directives the treatment
provider may have made.
If a lawyer calls to find out about a client's treatment history
or current treatment, unless the client has consented in writing
to the counselor's communicating with the lawyer, the counselor
must tell the lawyer, "I'm sorry. I can't respond to that question
right now. Can I have your telephone number and call you back
at another time?" This is because the Federal confidentiality
regulations prohibit any other response without the client's
written consent. The regulations view any response indicating
that the person in question is the counselor's client as a disclosure
that the person is in fact in substance abuse treatment. This
applies even if the lawyer already knows that the client is in
treatment.
A firm but polite tone is best. If confronted by what could
be characterized as "stonewalling," a lawyer may be tempted to
subpoena the requested information and more. The counselor will
not want to provoke the lawyer into taking action that will harm
the client. Even if the counselor has the client's written consent
to speak with the lawyer, she may find it helpful to consult
with the client before having a conversation about him. The
lawyer can be told, "I'm sure you understand that I am professionally
obligated to speak with this person before I speak with you."
It will be hard for any lawyer to disagree with this statement.
The counselor should then speak with the client to ask whether
the client knows what information the caller is seeking and whether
the client wants her to disclose that or any other information.
She should leave the conversation with a clear understanding
of the client's instructions--whether she should disclose the
information and, if so, how much and what kind. It may be that
the lawyer is representing the client and the client wants the
counselor to share all the information she has. On the other
hand, the lawyer may represent the CPS agency, the prosecuting
attorney, or some other party with whom the client is not anxious
to share information. There is nothing wrong with refusing to
answer a lawyer's questions.
If the lawyer represents the client and the client asks the
counselor to share all information, the counselor can speak freely
with the lawyer once the client signs a proper consent form.
However, if the counselor is answering the questions from a
lawyer who does not represent the client (but the client
has consented in writing to the disclosure of some information),
the counselor should listen carefully to each question, choose
her words with care, limit each answer to the question asked,
and take care not to volunteer information not called for. If
the lawyer asking for information represents the prosecuting
attorney, the counselor should consult both the client and his
lawyer, as well as the program's legal counsel before responding
to any questions.
Subpoenas come in two forms. One is an order requiring a
person to testify, either at a deposition out of court or at
a trial. The other--known as a subpoena duces tecum--requires
a person to appear with the records listed in the subpoena.
(Depending on the State, a subpoena can be signed by a judge
or filled out by a lawyer and stamped by a court clerk.) Unfortunately,
it can neither be ignored nor automatically obeyed.
When a subpoena is received, the counselor should call the
client about whom he is asked to testify or whose records are
sought and ask what the subpoena is about. It may be that the
subpoena has been issued by or on behalf of the client's lawyer,
with her consent. However, it is equally possible that the subpoena
has been issued by or on behalf of the CPS agency's lawyer (or
the lawyer for another adverse party). If that is the case,
the counselor's best option is to consult with the client's lawyer
(if the client has signed a consent form) to find out whether
the lawyer will object (i.e., ask the court to "quash" the subpoena)
or whether the counselor should simply obtain the client's written
consent to testify or turn over her records. An objection can
be based on a number of grounds and can be raised by any party,
as well as by the person whose treatment information is sought.
Often, the counselor may assert the client's privilege for her.
If the program has an attorney to represent it or an attorney
who is willing to provide advice on issues like these, the counselor
could seek his advice. As is detailed in Appendix
B, the best way to handle this arrangement is for the program
and the lawyer to sign a "Qualified Service Organization Agreement"
(§§2.11, 2.12(c)(4)), which permits the program to
communicate information to a person or agency that provides services
to the program.
Project Connect Coordinating Committee
In Rhode Island, the Project Connect Coordinating Committee meets
monthly to explore and establish linkages between treatment agencies.
Its members include representatives of the Department of Children,
Youth, and Families (DCYF); the Department of Health, Division
of Substance Abuse; substance abuse treatment providers; health
care providers; staff from perinatal addiction programs funded
by the Center for Substance Abuse Prevention; and staff for Project
Connect. Among the project's accomplishments are the following:
Holding a treatment provider fair to give DCYF a better grasp
of treatment issues and options
Preparing a resource directory to help DCYF workers make
appropriate referrals
Developing referral, intake, and reporting procedures to
integrate and facilitate the work of substance abuse treatment
providers and DCYF workers serving the same family
Sponsoring a conference to work toward a common language
Exchanging information through formal presentations on topics
of mutual concern
Advocating for the development and implementation of a managed
care system
Sometimes, the court hearing a client's case will ask a treatment
program to write a report about his progress in treatment. Or
a client's lawyer may ask an agency to submit a letter to the
court to support a disposition she is advocating. In any letter
it submits, the agency should limit itself to reporting factual
information, such as client attendance and urine toxicology screen
results; it should not speculate on the future of the client
or the client's family. Nor should it offer an opinion as to
where the child should be placed. Of course, any information
the agency releases in the form of a letter-report must be limited
to the kind and amount of information the client agreed to have
released when he signed the consent form. Moreover, the agency
should consult with the client's attorney to ensure the letter
covers the areas of concern and will do no damage.
What should a counselor do if the client is continuing to
abuse the child, the counselor knows this, and the counselor
is asked to submit a report?
First, if a counselor believes that her client is continuing
to abuse a child and that the child's life or health is in danger,
the counselor can make another "initial" report to the CPS agency
(even when no report has been requested).
Second, if the client's lawyer has asked the counselor to
write a report for the court and the counselor believes that
the client is continuing to have difficulty meeting his parenting
responsibilities (but that active abuse that would require another
report is not present), the counselor can explain why she doesn't
want to write a report, so long as the client has signed a consent
form permitting the counselor to talk to the lawyer.
Third, if the court has asked the program for a report, the
counselor can state in the beginning of the report that it will
be limited to factual matters related to the client's progress
and compliance with substance abuse treatment. The only circumstance
in which a counselor could voluntarily inform a court of his
opinion that there was ongoing abuse would be when the client's
signed consent form would permit this kind of communication.
Finally, if the court insists on a report (or testimony) on
the subject of the client's parenting and the client has not
consented to such communications, the program must explain that
in order for the counselor to report (or testify) on this issue,
the court must issue an order under subpart E of the Federal
regulations. Note that if the report or testimony will include
"confidential communications" it can only be done if the disclosure
Is necessary to protect against a threat
to life or of serious bodily injury
Is necessary to investigate or prosecute an extremely serious
crime (including child abuse)
Is in connection with a proceeding at which the client has
already presented evidence concerning confidential communications
(for example, "I told my counselor...") (§2.63) (see Appendix B)
If a client faces criminal child abuse or neglect charges,
a police officer, detective, or probation officer may pay the
counselor a visit. If any of these officials asks a counselor
to disclose information about a client or her treatment records,
the counselor should handle the matter in the same way he would
handle it with a lawyer. The counselor should tell the officer,
as he might a lawyer, "I can't tell you if I have a client with
that name. I'll have to check my records." Of course, if the
client was mandated into treatment in lieu of prosecution or
incarceration and has signed a criminal justice system consent
form authorizing communication with the mandating agency, program
staff may be obligated to speak with someone from that agency.
(See discussion in Appendix B.)
If the officer's inquiry has come unexpectedly, the counselor
should determine from the client whether she knows the subject
of the officer's inquiry; whether she wants the counselor to
disclose information and, if so, how much and what kind; and
whether there are any particular areas the client would prefer
she not discuss with the officer. Again, the counselor
must obtain written consent from the client before he speaks
with the officer. If the client has a criminal case pending
against her, it is best to check with her lawyer, too.
While a treatment program and a CPS agency may have conflicts
regarding certain clients' cases, the program needs to maintain
a good working relationship with the CPS agency and other agencies
involved in the child protection system. It is possible, outside
the context of any individual case, for treatment programs, CPS
agencies, and others to work together to develop common approaches
to improve family functioning, reduce substance use, and keep
children safe. Many States have coordinating committees to exchange
information among diverse agencies about goals and strategies
to promote understanding of each agency's perspectives, needs,
and legal constraints (see box above).
Education and outreach by substance abuse treatment agencies
is particularly important, because CPS agency workers and other
individuals in the child protective system often
View treatment agencies as lenient on substance
abusers
Have difficulty understanding or respecting the treatment
process, particularly relapse
Do not understand or accept the constraints imposed on treatment
agencies by Federal confidentiality requirements
Providing a forum for these misunderstandings to be resolved
and for acceptance and respect to develop will benefit all concerned.
The following are examples of the ways that treatment providers
in some States and communities have engaged in education and
outreach:
Florida drug treatment providers educate
State legislators, judges, and sheriffs through conferences and
seminars. Events are locally organized and help create understanding
and acceptance of the treatment process and the confidentiality
requirements that affect the provider.
In Vermont, the State funds seminars on family violence and
substance abuse treatment options for judges and other members
of the legal system. These seminars are also open to the public.
Some communities hold regular brown bag lunches for probation
officers and others in the legal system. These meetings are
an opportunity for education on such issues as confidentiality
or how to work through problems, such as discrepancies between
what the court is mandating (e.g., enrollment in a residential
treatment program) and what is available (e.g., only nonresidential
programs).
Every summer Texas holds an annual Institute on Alcohol and
Drug Abuse 2-week event that usually has 1,500 attendees per
week. Numerous private and nonprofit providers have booths to
exhibit their services. Bookstores exhibit and sell literature
on such subjects as substance abuse, health, mental health issues,
marriages, relationships, cultures, and motivational stories.
A "Best Practices Conference" is held in the winter with about
1,200 people in attendance. Trainings are provided throughout
the year in various regions of the State to make attendance convenient
and more cost-effective for the providers.
The Community Youth Network in Grayslake, Illinois, provides
training sessions to area law enforcement personnel and school
personnel. They address both victim and perpetrator issues,
which is unusual because many programs do not address perpetrator
treatment.
Community Advisory Boards are an effective method of interagency
collaboration and networking. The integrated family treatment
program in San Antonio, Texas, has an active Community Advisory
Board with representatives from the CPS system, Criminal Justice
System, District Attorney's office, Family Violence Unit, Health
Department, battered women's shelters, and other support agencies.
Monthly meetings are held to exchange ideas and programmatic
information, develop advocacy for substance-using women within
their respective agencies, and gain an understanding of how each
local system works.
In Connecticut, the Alcohol and Drug Policy Council created
a Women and Children's Client-Based Model. The various State
agencies have been meeting to discuss implementing the model.
There are monthly meetings of Child Protective Services Substance
Abuse Regional Resource Consultants (psychiatric social workers
with substance abuse certification who are internal consultants
to the CPS agency) with the substance abuse case managers for
women and children to go over cases and resources. Both systems
fund services for the population. The CPS system funds Project
SAFE (Substance Abuse Family Evaluation), which is a statewide
system to screen and provide priority access for evaluation and
outpatient substance abuse treatment for clients in the CPS system.
Another project, Supportive Housing for Recovering Families,
provides housing assistance for clients who have successfully
completed residential treatment and are planning to reunify with
their families. The Alcohol and Drug Policy Council also recommends
cross-training between substance abuse treatment programs and
CPS agencies. Some of the major issues are how to make treatment
systems more family focused and how to break down the traditional
barriers in funding and measures.
In Louisiana, recovered survivors have become effective lobbyists
within the State legislature. Their personal experiences are
brought into legislative subcommittees to gain more stringent,
effective laws on behalf of abused children. The Louisiana State
legislature has an appointed official in the victim representative
capacity whose primary qualification is being a recovered survivor
of childhood victimization.
Montgomery County, Maryland, has a task force to integrate
adult treatment services within the social services of CPS agencies,
welfare and housing, and the juvenile justice system, recognizing
the shared interests and client base.
The Child Welfare League of America has published a book
called Responding to Alcohol and Other Drug Problems in Child
Welfare that includes many references and resources (Young
et al., 1998).
More needs to be done, however. Many State legislatures still
view substance abusers as criminals, not people who have a disease.
With busy schedules and limited financial resources, law enforcement
officials often prefer incarcerating individuals, where treatment
is limited. (For more information on substance abuse treatment
and criminal offenders, refer to TIP 30, Continuity of Offender
Treatment for Substance Use Disorders From Institution to Community [CSAT, 1998b].)
Education is a two-way street. Treatment programs may benefit
from training provided by other agencies, including CPS agencies
and law enforcement organizations. Civic organizations, such
as the Rotary Club, often have a speaker's bureau that may recommend
a local expert in a particular field who would speak pro bono.
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