I was reporting possible child abuse, as I’m required to do.  For this, I get sued?????

A director of pupil services in Ohio is facing possible personal liability for reporting that a parent was possibly abusing his child. The 6^th Circuit held that a reasonable juror could conclude that the report was an act of illegal retaliation.  Thus the court refused to grant the director qualified immunity. The case will proceed to a trial, and the outcome there will depend on what the jury believes to be true.

In 2008, the 6^th Circuit held that a false report of child abuse could be considered an act of retaliation against a parent.  Jenkins v. Rock Hill Local School District, 513 F.3d 580.  In the present case, the same court tells us that the truth or falsity of the report is not the crucial issue.  The crucial issue is the motivation of the person who made the report.  Therefore, “a report of child abuse—even if it is not materially false and there is evidence in the record that could support a ‘reasonable basis’ to suspect child abuse—is actionable if the reporter made the report ‘at least in part’ for retaliatory motives.”

This case is in its early stages, and the court did not sort out the many disputed facts.  In fact, because of the procedural posture of the case—a Motion to Dismiss by the director—the court was required to read the complaint in the light most favorable to the parent.  With that in mind, here is what the court cited as evidence that the proverbial “reasonable juror” might cite in finding that the director was improperly motivated:

1. The report of abuse came just three weeks after the State Department of Education notified the director that the parent had filed a complaint against the district;
2. Personal animus. A couple of emails the director sent to staff described the parent as having a “long time assumption that what he wants he gets,” and that he was perhaps trying to “force us to spoon feed him information”;
3. The report of child abuse “embellished or entirely fabricated other allegations, including those that most clearly suggested sexual abuse.”  The court also noted that the director added irrelevant details, describing the parent as “unkempt” “creepy” “verbally aggressive.”

Much of the problem here stemmed from the fact that the director did not personally observe any symptoms of abuse. She reported what she believed the teachers told her. But then the teachers denied telling her many of the things she reported.  This is where the “embellishment” claim comes from.  This, combined with the emails that suggested that this parent needed to be taken down a peg, were enough for the court to allow the case to proceed to a factual determination.

Educators are in a tough position.  You must report suspected child abuse or neglect.  Sometimes, this report will target a parent with whom the educator has had conflict. This opens the door to allegations that the report “at least in part” was improperly motivated.

So take your time.  Make sure you have your facts right.  Check your motives.  Be sure that any report of child abuse is just that—a report of possible child abuse, and not a backhand way of striking back at a parent.

The case is Wenk v. O’Reilly, decided by the 6^th Circuit Court of Appeals on April 15, 2015.  It can be found at 115 LRP 16032.

DAWG BONE: MAKE SURE YOUR REPORTS OF POSSIBLE CHILD ABUSE ARE ABOUT CHILD ABUSE, NOT SOME OTHER AGENDA.