FFG(LEGAL) - STUDENT WELFARE: CHILD ABUSE AND NEGLECT
Policy and Program to Address Sexual Abuse, Trafficking, and Maltreatment
A district shall provide child abuse antivictimization programs in elementary and secondary schools. Education Code 38.004
A district shall adopt and implement a policy addressing sexual abuse, sex trafficking, and other maltreatment of children, to be included in the district improvement plan [see BQ] and any information handbook provided to students and parents. Education Code 38.0041(a)
The policy included in any informational handbook provided to students and parents must address the following:
- Methods for increasing staff, student, and parent awareness of issues regarding sexual abuse, trafficking, and other forms of maltreatment of children, including prevention techniques and knowledge of likely warning signs indicating that a child may be a victim;
- Actions a child who is a victim of sexual abuse, trafficking, or other maltreatment should take to obtain assistance and intervention; and
- Available counseling options for students affected by sexual abuse, trafficking, or other maltreatment.
19 TAC 61.1051(b)(3)
Child Abuse or Neglect
The definition of child abuse or neglect includes the trafficking of a child in accordance with Education Code 38.004.
This term has the meaning assigned by Human Resources Code 42.002.
Trafficking of a Child
This term has the meaning assigned by Penal Code 20A.02(a)(5), (6), (7), or (8).
19 TAC 61.1051(a)
Duty to Report
Report by Any Person
Any person who has reasonable cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as required by law. Family Code 261.101(a)
Report by Any Professional
Any professional who has reasonable cause to believe that a child has been or may be abused or neglected shall make a report as required by law. The report must be made within 48 hours after the professional first has reasonable cause to believe that the child has been or may be abused or neglected or is the victim of an offense of indecency with a child.
A professional may not delegate to or rely on another person to make the report.
A "professional" is a person who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, juvenile probation officers, and juvenile detention or correctional officers.
Family Code 261.101(b)
Abuse of Persons with Disabilities
A person having cause to believe that a person with a disability is in a state of abuse, neglect, or exploitation shall report the information immediately to the Texas Department of Family and Protective Services (DFPS).
A person commits a Class A misdemeanor if the person has cause to believe that a person with a disability has been abused, neglected, or exploited or is in a state of abuse, neglect, or exploitation and knowingly fails to report.
A person filing a report or testifying or otherwise participating in any judicial proceeding arising from a petition, report, or investigation is immune from civil or criminal liability on account of his or her petition, report, testimony, or participation, unless the person acted in bad faith or with a malicious purpose.
Human Resources Code 48.051, .052, .054
Adult Victims of Abuse
A person or professional shall make a report in the manner required above if the person or professional has reasonable cause to believe that an adult was a victim of abuse or neglect as a child and the person or professional determines in good faith that disclosure of the information is necessary to protect the health and safety of another child or an elderly person or person with a disability. Family Code 261.101(b-1)
Restrictions on Reporting
Psychotropic Drugs and Psychological Testing
An employee may not use or threaten to use the refusal of a parent, guardian, or managing or possessory conservator to administer or consent to the administration of a psychotropic drug to a child, or to consent to any other psychiatric or psychological testing or treatment of the child, as the sole basis for making a report of neglect, unless the employee has cause to believe that the refusal:
- Presents a substantial risk of death, disfigurement, or bodily injury to the child; or
- Has resulted in an observable and material impairment to the growth, development, or functioning of the child.
Education Code 26.0091; Family Code 261.111(a) [See FFEB]
Contents of Report
The report should reflect the reporter's belief that a child has been or may be abused or neglected or has died of abuse or neglect. The person making the report shall identify, if known:
- The name and address of the child;
- The name and address of the person responsible for the care, custody, or welfare of the child; and
- Any other pertinent information concerning the alleged or suspected abuse or neglect.
Family Code 261.102, .104
Abuse and Neglect Involving School Personnel and Those Responsible for Care
If the alleged or suspected abuse or neglect involves a person responsible for the care, custody, or welfare of the child, the report must be made to DFPS, unless the report is made to a state agency under item 4, below, or the report involves a juvenile justice program or facility [see JJAEPS, below].
All other reports shall be made to:
- Any local or state law enforcement agency;
- DFPS, Child Protective Services (CPS) Division;
- A local office of CPS, where available; or
- The state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse or neglect occurred.
Family Code 261.103(a); 19 TAC 61.1051(b)(1)–(2)
"Person responsible for a child's care, custody, or welfare" means a person who traditionally is responsible for a child's care, custody, or welfare, including:
- A parent, guardian, managing or possessory conservator, or foster parent of the child;
- A member of the child's family or household as defined by Family Code Chapter 71;
- A person with whom the child's parent cohabits;
- School personnel or a volunteer at the child's school;
- Personnel or a volunteer at a public or private child-care facility that provides services for the child or at a public or private residential institution or facility where the child resides; or
- An employee, volunteer, or other person working under the supervision of a licensed or unlicensed child-care facility, including a family home, residential child-care facility, employer-based day-care facility, or shelter day-care facility, as those terms are defined in Chapter 42, Human Resources Code.
Family Code 261.001(5)
Reporting Abuse, Neglect, or Exploitation in a JJAEP
Any report of alleged abuse, neglect, or exploitation, as those terms are defined in Family Code 261.405, in a juvenile justice program or facility shall be made to the Texas Juvenile Justice Department and a local law enforcement agency for investigation. The term "juvenile justice program" includes a juvenile justice alternative education program. Family Code 261.405(a)(4)(A), (b)
Confidentiality of Report
A report of alleged or suspected abuse or neglect and the identity of the person making the report is confidential and not subject to release under Government Code Chapter 552 (Public Information Act) and may be disclosed only for purposes consistent with the Family Code and applicable federal or state law or under rules adopted by an investigating agency. Family Code 261.201(a)–(a)(1)
Unless waived in writing by the person making the report, the identity of an individual making a report under this chapter is confidential and may be disclosed only to a law enforcement officer for the purposes of a criminal investigation of the report, or as ordered by a court under Family Code 261.201. Family Code 261.101(d)
Immunity from Liability
A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from any civil or criminal liability that might otherwise be incurred or imposed. Family Code 261.106
A district may not suspend or terminate the employment of, or otherwise discriminate against, or take any other adverse employment action against a professional who makes a good faith report of abuse or neglect. Family Code 261.110(b) [See DG]
Failure to Report
A person commits a Class A misdemeanor if he or she is required to make a report under Family Code 261.101(a) [see Duty to Report, above] and knowingly fails to make a report as provided by law.
A person who is a professional commits a Class A misdemeanor if the person is required to make a report under Family Code 261.101(b) [see Duty to Report] and knowingly fails to make a report as provided by law. The professional commits a state jail felony if he or she intended to conceal the abuse or neglect.
Family Code 261.109
A person commits an offense if, with the intent to deceive, the person knowingly makes a report of abuse and neglect that is false. The offense is a state jail felony, except that it is a felony of the third degree if the person has previously been convicted of the offense. Family Code 261.107(a)
A public servant, including as a school administrator, who coerces another into suppressing or failing to report child abuse or neglect to a law enforcement agency commits a Class C misdemeanor offense. Penal Code 39.06
SBEC Disciplinary Action
The State Board for Educator Certification (SBEC) may take any of the actions listed in 19 Administrative Code 249.15(a) (impositions, including revocation of a certificate and administrative penalties) based on satisfactory evidence that the person has failed to report or has hindered the reporting of child abuse pursuant to Family Code 261.001, or has failed to notify the SBEC, the commissioner of education, or the school superintendent or director under the circumstances and in the manner required by Education Code 21.006, 21.0062, 22.093, and 19 Administrative Code 249.14(d)–(f). 19 TAC 249.15(b)(4)
Note: The following legal provisions address child abuse and neglect investigations generally. See GRA for additional legal provisions addressing notification requirements and right of access to students when DFPS investigates reports of abuse and neglect at school.
Reports to District
If DFPS initiates an investigation and determines that the abuse or neglect involves an employee of a public elementary or secondary school, and that the child is a student at the school, the department shall orally notify the superintendent of the district in which the employee is employed. Family Code 261.105(d)
On request, DFPS shall provide a copy of the completed report of its investigation to the board, the superintendent, and the school principal, unless the principal is alleged to have committed the abuse or neglect. The report shall be edited to protect the identity of the person who made the report. Family Code 261.406(b)
Interview of Student
The investigating agency shall be permitted to interview the child at any reasonable time and place, including at the child's school. Family Code 261.302(b) [See GRA]
Interference with Investigation
A person may not interfere with an investigation of a report of child abuse or neglect conducted by DFPS. Family Code 261.303(a)
A photograph, videotape, audiotape, or other audio or visual recording, depiction, or documentation of a child that is made by DFPS in the course of an inspection or investigation is confidential, is not subject to release under the Public Information Act, and may be released only as required by state or federal law or rules adopted by the DFPS. Human Resources Code 42.004
A board shall adopt and annually review policies for reporting child abuse and neglect. The policies shall follow the requirements of Family Code Chapter 261. 19 TAC 61.1051(b)
The policies must require every school employee, agent, or contractor who suspects a child's physical or mental health or welfare has been adversely affected by abuse or neglect to submit a written or oral report to at least one of the authorities listed above [see To Whom Reported, above] within 48 hours or less, as determined by the board, after learning of facts giving rise to the suspicion. 19 TAC 61.1051(b)(1)
The policies must be consistent with the Family Code, Chapter 261, and 40 Administrative Code Chapter 700 (CPS) regarding investigations by DFPS, including regulations governing investigation of abuse by school personnel and volunteers. [See GRA]
The policies must require a report to DFPS if the alleged abuse or neglect involves a person responsible for the care, custody, or welfare of the child and must notify school personnel of the following:
- Penalties under Penal Code 39.06 (misuse of official information), Family Code 261.109 (failure to report), and 19 Administrative Code Chapter 249 (actions against educator's certificate) for failure to submit a required report of child abuse or neglect;
- Applicable prohibitions against interference with an investigation of a report of child abuse or neglect, including:
- Family Code 261.302 and 261.303, prohibiting school officials from denying an investigator's request to interview a student at school; and
- Family Code 261.302, prohibiting school officials from requiring the presence of a parent or school administrator during an interview by an investigator.
- Immunity provisions applicable to a person who reports child abuse or neglect or otherwise assists an investigation in good faith;
- Confidentiality provisions relating to a report of suspected child abuse or neglect;
- Any disciplinary action that may result from noncompliance with a district's reporting policy; and
- The prohibition under Education Code 26.0091 [see Psychotropic Drugs and Psychological Testing, above].
19 TAC 61.1051(b)(2)
The policies may not require that school personnel report suspicions of child abuse or neglect to a school administrator before making a report to one of the agencies listed above.
The policies must:
- Include the current toll-free number for DFPS;
- Provide for cooperation with law enforcement child abuse investigations without the consent of the child's parent, if necessary, including investigations by DFPS; and
- Include child abuse anti-victimization programs in elementary and secondary schools consisting of age-appropriate, research-based prevention designed to promote self-protection and prevent sexual abuse and trafficking.
19 TAC 61.1051(b)(5)–(b)(8)
Annual Distribution and Staff Development
The policies required by these provisions and adopted by the board shall be distributed to all personnel at the beginning of each school year. The policies shall be addressed in staff development programs at regular intervals determined by a board. 19 TAC 61.1051(c) [See also DH and GRA]
[For training requirements under these provisions, see DMA.]
Using a format and language that is clear, simple, and understandable to students, each public school shall post, in English and in Spanish:
- The current toll-free DFPS Abuse Hotline telephone number;
- Instructions to call 911 for emergencies; and
- Directions for accessing the DFPS Texas Abuse Hotline website for more information on reporting abuse, neglect, and exploitation.
A district shall post the information specified above at each school campus in at least one high-traffic, highly and clearly visible public area that is readily accessible to and widely used by students. The information must be on a poster (11x17 inches or larger) in large print and placed at eye-level to the student for easy viewing. Additionally, the current toll-free Texas Department of Family and Protective Services Abuse Hotline telephone number should be in bold print.
Education Code 38.0042; 19 TAC 61.1051(e)–(f)