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I am an attorney who recently has had the opportunity to represent a number of persons who were investigated by employees of Child Protective Services Division of the Children Youth and Families Department (CYFD) on allegations by persons unknown of child abuse.
Every report was unsubstantiated and none of them should have been investigated. I would like to offer some observations to your readers who may be thinking about reporting someone, on the child abuse hotline or otherwise, to CYFD, and some suggestions to CYFD for improving their system.
Here’s some law for you: for persons who report suspicions of abuse to CYFD or the Police the statutes provide that CYFD must not release their identity. It also provides for immunity from liability, civil or criminal, , absent a showing that the reporter acted in “bad faith or with malicious purpose.”
In a story on the new hotline recently instituted by CYFD, the Albuquerque Journal on April 8 quoted the Secretary of CYFD saying that the previous hotline received about 75,000 calls a year, of which only 4,000 were substantiated.
The story does not say this, but I have never heard of anyone being successfully prosecuted or sued for bad faith or malicious purpose, even though the secretary is well aware, according to the story, that many of these calls were “malicious” or made as “vendettas” by “ex-spouses and neighbors.”
So making the call is a freebie for the caller. This arrangement was deliberate and even understandable: to encourage reporting of abuse by reducing the possibility of retaliation by the alleged perpetrator. Another section of the statutes actually mandates reporting of suspected abuse by certain classes of people, doctors and teachers, for example.
Neither the statutes nor any other source provides guidance to potential reporters on what types of observations would justify making a report. And it’s easy to convince yourself that it’s better to be safe than sorry when considering making a report, you might save a kid, after all, and who can it hurt?
I’m here to tell you who it can hurt and how. Your report goes from the call center to a screening center based in Albuquerque, where malicious and bogus allegations are supposed to be screened out. As with everything else in CYFD, the center is understaffed and under time pressure to meet internal deadlines.
In addition, every time some abuse incident hits the news media, there is political pressure on the screeners to loosen the screening standards. CYFD and their screeners are running scared, consequently little screening actually occurs — with absurd results, as we shall see.
The report is assigned to an investigator. In my experience, CYFD investigators are too few, and they are overloaded, prone to burnout, either poorly trained or their training didn’t stick, and have an unfortunate tendency to take shortcuts with the rights of the alleged perpetrators.
For example, although they are required by law to inform persons of the allegations against them at initial contact, they have never done this for any of my clients. Asked for the allegations by a knowledgeable subject, they will attempt to bargain the allegations for the surrender of another right, for example the right not to submit to an interview with investigators or the right not to allow the investigator into the house.
I tell my clients not to discuss anything with CYFD outside my presence, which is their right; one investigator responded to this by threatening to substantiate the report because if my client wanted a lawyer present she must be guilty of the allegations.
In Los Alamos the Police Department insists on accompanying CYFD to the door, so the investigators like to bluff by threatening subjects with immediate removal of the child, which they cannot do except in exceptional circumstances that are not present in these cases.
It is often the case that the allegations are against the parents of children with developmental disabilities, for example, or with diagnoses somewhere on the autism spectrum. Sometimes these children may be home schooled because of the inability of the schools to deal effectively with their problems (in spite of a federal mandate, but that’s another story).
These situations often create suspicions in a person who sees a parent, for example, dealing with an autistic child in a manner recommended by autism specialists that looks to the casual observer very much like abuse.
Many of these parents are totally absorbed in their children’s care and treatment and have no time in their lives for many of the activities most of us take for granted.
A report to CYFD can mean they will be spending weeks and months dealing with overzealous investigators checking absurd allegations made out of total ignorance by a well-meaning neighbor, schoolteacher, or caregiver.
This is a disruption to that family that can trigger family chaos, and can send their always precarious finances into a tailspin with attorneys fees and additional doctor’s fees. The real tragedy is that the experience can be as traumatic to children as actual abuse would be, when a CYFD worker shows up at the door with a cop in tow, demanding to remove the child’s clothes to inspect for signs of physical abuse.
I don’t expect that the ex-spouses and neighbors with vendettas that were described by the CYFD secretary will be much affected by what I say here.
But for the well-meaning among you who read this, please consider making an effort to learn more about the people you are observing and their particular situation.
Fewer incorrect reports will reduce the load on the staff at CYFD and may actually increase the quality of investigations and so reduce the incidence of deaths and injuries that dismays us all.
For CYFD I have four pleas: Publish guidelines for these reports. Develop better, realistic screening that includes asking about and looking critically into the relationship of the reporter to the alleged perpetrator.
Insist that your investigators scrupulously follow the law on the rights of their subjects. I have known a number of people who would have cooperated willingly with an investigator had they been approached in a reasonable manner and according to the very clear rules set forth in the statutes and CYFD regulations, and this would have saved CYFD a lot of time and resources.
Finally, put some of your valuable resources into prosecuting some of those malicious and bad faith reporters that you have been ignoring.
The statute plainly gives you that option, and the investment will pay off in efficiency in the long run if the reporter understands you will not tolerate being used to accomplish their vendetta.