Physicians do not learn much about child protective services and the legal system during their training, yet in pediatric practice there is an increasing need for understanding of these two areas, especially in the area of child maltreatment. Medical professionals often have questions regarding the process of mandated reporting of child abuse to state agencies, as well as the civil and criminal court actions that may result from those reports, which may require physicians to provide factual and expert testimony.
The Federal Child Abuse Prevention and Treatment Act (CAPTA) (Public Law 93-247), and subsequent amendments, provides definitions to inform national, state, and community efforts to prevent, identify, and treat child abuse and neglect and provides federal assistance to states to support these efforts.1 Federal legislation defines child abuse and neglect as, at a minimum:2
“Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation”; or
“An act or failure to act which presents an imminent risk of serious harm.”
Each state provides its own definitions of maltreatment within civil and criminal statutes.2 It is important for inpatient pediatricians to be familiar with their state laws and definitions of the various types of maltreatment.
All 50 states allow anyone—but have statues that require certain professionals—to report incidents of suspected child abuse and neglect to the state child protective services (CPS) agency. Common mandated reporters are physicians, nurses, teachers, psychologists, social workers, and law enforcement personnel. Only a reasonable suspicion or belief of abuse is required to make a report to state authorities; a person does not need evidence that abuse or neglect exists to make a report.
All states have immunity provisions for mandated reporters, so that the reporter is protected from any civil or criminal liability if a report is later deemed erroneous or unsubstantiated.3 In contrast, failure of a mandated reporter to report suspected child abuse may result in a fine, malpractice suit, or criminal sanctions. Therefore a report should be filed any time there is “reasonable cause” to believe that abuse or neglect exits.
As an inpatient pediatrician, it is essential to confirm that a report has been made in all cases in which doing so is necessary. If another person or institution has filed a report about the same episode of abuse, no other professionals are required to duplicate that report.3 However, if a new indicator of abuse is observed, a new report must be filed. For example, a report is filed for a nonambulatory child with an unexplained femur fracture. He is subsequently transferred to another hospital for further treatment, where he is found to have suspicious rib fractures as well. The accepting physician must make a supplementary report about the rib fractures. As practices may vary from state to state, pediatric providers should become knowledgeable about the reporting requirements within their institution.
CHILD PROTECTIVE SERVICES
CPS is a state-administered governmental agency responsible for investigating reports of child maltreatment, determining whether child abuse or neglect has occurred, and intervening to ensure a safe environment for the child. In most cases, CPS agencies assist families in finding appropriate support services to protect and improve the well-being of their children. When it is deemed necessary, these agencies also secure alternative placements for children or pursue the termination of parental rights. Although CPS agencies vary by state and county, professional standards of practice have been widely accepted and implemented.
When a report is made to CPS, it is important to provide as much information as possible regarding the child and the incident or circumstances that led to the suspicion of maltreatment. State laws protect the identity of reporters if they choose to remain anonymous. However, especially in the inpatient setting, it is recommended that parents or guardians be notified when a medical professional is going to make a report to preserve (to the extent possible) an open, honest relationship with the child’s caretakers. The most effective means of notifying parents or guardians is to express concern that someone may be harming their child, rather than directly accuse them of maltreatment. When providing this information, the physician can ask whether the parents know of anyone who might be hurting their child. Although the physician–parent relationship may become strained, parents generally respond better to honesty and directness than to secretiveness. This should facilitate a more comfortable working relationship while the child remains in the hospital, and may encourage appropriate follow-up care.
Once a report is made, the CPS staff determines whether the report meets criteria to be accepted as an investigation or assessment and is thus “screened in.” Reports that do not meet the criteria may be “screened out” and referred to other services.4 Rules vary by state regarding whether the CPS agency must thoroughly investigate every report.1 This remains a controversial issue as states attempt to balance their mandates for child protection with limited financial resources.
The CPS investigation begins by gathering all the relevant information about the case. Many state laws and regulations outline the investigative procedure in great detail. Most require contact with the child and family within 24 hours of the most serious reports of abuse and within 2 to 5 days for other reports.1,4 Interviews are conducted with the child, the parents, other family members, and other individuals who might have knowledge about the specific allegations or about the family’s treatment of the child in general.
Many jurisdictions have children’s advocacy centers in place to assist and guide the child interview process. Children’s advocacy centers provide a multidisciplinary team approach to investigations of child abuse, including forensic interviews, therapeutic interventions, victim support and advocacy, and case management. Such facilities provide a safe, child-friendly environment to conduct forensic interviews of a neutral, fact-finding nature. Often these agencies work in collaboration with law enforcement and CPS to minimize the number of times the child victim is interviewed.
If the alleged maltreatment constitutes criminal behavior, law enforcement personnel should be brought into the investigation to ensure that the criminal aspect of suspected maltreatment is thoroughly investigated and that the evidence necessary for criminal prosecution is adequately safeguarded.1 The reporter may contact the police directly, or this may be done through an established mechanism within CPS. Many jurisdictions have guidelines to ensure cooperation between law enforcement and CPS.
One of the most important aspects of the child protection system is the ability to take a child into protective custody on an emergency basis if he or she is in imminent danger. State laws vary whether CPS or law enforcement maintain the authority for this emergency intervention. Once this is done, the CPS agency must obtain a retroactive court order granting it temporary legal custody of the child within 24 to 72 hours from the time the child was placed in protective custody.5
Emergency removal orders are usually entered ex parte (with the court only hearing from CPS and without notice to the parent or guardian). Immediately after the 24- to 72-hour period, the matter must be brought before the court at the initial hearing, where the parents are present and have an opportunity to be heard. The main purpose of this initial hearing is to determine whether there is enough evidence to conclude the child is at risk of harm and should remain in substitute care or be returned to the parents pending further proceedings. In addition, the court may issue other types of protective orders against individuals alleged to be responsible for the child’s maltreatment, such as orders for those individuals to vacate the home and have no contact with the child or other family members.5
DISPOSITION AFTER THE INVESTIGATION
State laws and regulations require that the CPS agency conclude the investigative process by arriving at a disposition or a formal finding of whether child abuse or neglect has occurred within a given time frame.1 A number of terms, including indicated, supported, confirmed, or substantiated, are used when CPS believes that the child was a victim of maltreatment; words such as unfounded or unsubstantiated indicate that there was insufficient evidence to conclude that child maltreatment occurred. It is important to keep in mind that these CPS conclusions are not the result of a hearing.
Although an unsubstantiated report seldom involves additional action on the part of CPS, a finding that abuse or neglect has been substantiated frequently requires further action by the child welfare agency and the family, unless the perpetrator no longer has access to the child and the child is not at any additional risk. Public Law 96-272 requires that CPS make “reasonable efforts” to keep the child within his or her family home rather than placing the child in foster care.1 Thus the next step often involves the formulation of a case plan by CPS, with the main goals of ensuring the child’s safety and stabilizing the family system. The case plan reflects the expectations and responsibilities of family members as well as the role and contributions of the CPS agency, which often involves the provision of assistance through other community agencies. CPS staff then follows the progress of the family in accomplishing the changes set forth in the case plan. If the family does not follow the plan and the child continues to be at risk, CPS can take further steps.
A minority of substantiated cases of child maltreatment result in some type of court proceeding. This occurs when the child is thought to be in imminent danger of repeated maltreatment or when it is perceived that social services will not be sufficient to effect the desired family changes. A small percentage of the cases filed in court result in the child’s removal from the home and placement with a third party. Public Law 96-272 requires the juvenile court to (1) conclude affirmatively that the CPS agency has made reasonable efforts to avoid removing a child from his or her family home before authorizing an out-of-home placement for the child, and (2) review the actions of CPS periodically to ensure that reasonable efforts are being made to return the child to his or her birth family.1
Parents may willingly have their children placed in “kinship care” to avoid a child protective court hearing after a CPS investigation has confirmed maltreatment and deemed the child’s removal from the home is necessary. This is more likely when there is a safe placement for the child in the home of a relative, godmother, good friend, or other suitable person close to the family.5
Cases investigated by CPS become “closed” for a variety of reasons, ranging from the conclusion that the child is safe insofar as can be determined to the termination of parental rights and placement of the child in a permanent substitute family.1 Infrequently, under certain circumstances, cases may be closed for less legitimate reasons.
CIVIL CHILD PROTECTION COURT
Medical testimony may be used in a variety of legal proceedings in civil and criminal courts, including a civil child protection court action, criminal prosecution of alleged perpetrators of child maltreatment, and civil actions for damages from injuries. Most child abuse and neglect cases are heard in state courts. Civil child protection cases usually involve the juvenile or family court, with the CPS agency initiating the action. In juvenile court child protection proceedings, ideally, the focus is on the child—whether he or she has been subjected to abuse or neglect, and if so, what intervention is needed not only to protect the child but also, unless contraindicated, to strengthen the child’s family.5 It is not always necessary to prove that a specific parent or guardian injured a child.
Child protective judicial proceedings begin with the filing of a complaint or petition. The initial hearing, typically referred to as a “preliminary protective,” “shelter care,” “temporary custody,” or “detention” hearing, determines the immediate need for alternative custodial arrangements or protective orders while the investigation is underway.5 At this initial stage, parents may concede the allegations in the petition are true and accept the court’s jurisdiction, or contest the allegations resulting in the case being continued to another date. Afterward, there may be formal or informal attempts at negotiating a case settlement. If a settlement is not negotiated a formal hearing, or adjudicatory hearing, will ensue.
In juvenile court child protection proceedings, the child is appointed a Guardian ad Litem (GAL) at or before the initial hearing. A GAL is an attorney or a volunteer who is an independent advocate for the child’s best interest. Volunteers also may be called court-appointed special advocates (CASA). The volunteers often are professionals trained in other disciplines, such as nursing, psychology, or education. The child’s advocate assists the child and protects his or her interests throughout the proceedings or as long as the court has jurisdiction over the child.5 Special representation for the child is rarely arranged in criminal proceedings.
At the adjudicatory hearing, also known as the “fact-finding” or “jurisdictional” hearing, the judge determines whether the facts in the petition are true. State laws require the adjudicatory hearing begin or conclude within a set time from the date of petition or original placement of the child. Unlike criminal proceedings, during the adjudicatory hearing parents cannot refuse to be called to testify based on the Fifth Amendment. However, once on the stand they may refuse to testify, which may be weighed against them by the court.6 If child maltreatment is not proven, the case is dismissed. If child maltreatment is concluded the case proceeds to a disposition hearing.
At the disposition hearing (sentencing), the court decides whether the child needs help from the court and, if so, what services will be ordered to resolve the problems that led to CPS intervention.6 For example, the court may order mental health and rehabilitative services, out-of-home placement, or establish visitation schedules and corresponding level of supervision for parents. It also can order CPS to conduct follow-up visits with the family to ensure the child’s protection.
If the child remains in out-of-home care, or at home under the CPS agency’s protective supervision, periodic review hearings are required at set intervals. Federal law requires that a separate “dispositional hearing,” to establish a firm permanent placement plan for a child, occur no later than 18 months after the child’s entry in placement.5
Criminal court cases are begun with the filing of an indictment or other charge. In civil actions, the standard of proof is less than that required in criminal court. The moving party usually has the burden of persuading the factfinder by a “preponderance of the evidence” or by “clear and convincing evidence,” meaning the state must prove that it is more likely than not that the allegations are true.7 In contrast, criminal cases require a higher degree of certainty—“beyond a reasonable doubt”—to prove guilt. Therefore, even if there is insufficient evidence to convict a perpetrator in a criminal trial, it may be sufficient to give the juvenile court protective jurisdiction over the child.5
Criminal cases involve the prosecution of individuals by the state or federal government to establish their guilt or innocence of particular charges and to determine appropriate sentences for those found guilty.7 All sexual abuse and unlawful sexual conduct as well as severe physical abuse are criminal acts. In the event the government believes that it cannot prove the suspect guilty beyond a reasonable doubt, the government may instead seek a court order adjudicating the child a dependent of the court as previously described.
Once the civil or criminal legal process has begun, there is frequently a period of “discovery” whereby both sides exchange information regarding the case. Physicians may be involved in the discovery process by means of a subpoena. A subpoena ad testificandum is a court order requiring an individual to appear at a designated time and place to provide sworn testimony.7 A subpoena duces tecum requires the production of records or documents relevant to the matter being litigated.8
A deposition is part of the discovery process whereby the parties learn about and evaluate the other’s case through the testimony of witnesses before the trial.7 In a civil case, it is possible that the opposing attorney will depose the treating physician. It is an informal setting, without a presiding judge or jury. It is important for the physician to be well prepared and to confer with the patient’s attorney before the deposition. The testimony is given under oath and is recorded by a stenographer. After the deposition, the witness is advised about the procedures for either reading and signing the deposition or “waiving” the review and signature. If the witness chooses to “read” the deposition, a transcript is printed and signed by the witness, with amendments limited to corrections and clarifications.7
It is very important for physicians to be complete, accurate, and legible when documenting events in a patient’s medical records. In the event those records will be used as evidence in court, it is even more vital that they be comprehensive. Correct, thorough, decipherable medical records can help the treating physician recall his or her findings when preparing for a hearing or a trial, which may occur several months after the physician’s initial involvement with the patient, and they can help the lawyer have a better understanding of the medical findings. If the medical records become evidence, they will help the fact-finder (i.e. judge or jury) understand the case and render the proper resolution.
All hospital staff must clearly document a child’s statements describing the history of the illness or injury and the presenting symptoms, as they may be admissible in legal proceedings. While a child’s words typically fall under the “hearsay” rule, there are certain exceptions to the hearsay rule that pertain to medical care, including the “excited utterance exception” and the “medical diagnosis or treatment exception.” Without careful documentation of exactly what questions were asked and exactly what the child said, the professional will likely not remember months or years later when called as a witness.8
PROVIDING EXPERT AND NON-EXPERT TESTIMONY
The rules of evidence provide the statutory and case-law framework by which information is deemed by a judge to be relevant, material, and therefore ordinarily admissible for consideration by the fact-finder (i.e. judge or jury) at a hearing or trial.7 Although the rules of evidence may vary between federal and state proceedings and from state to state, most jurisdictions have evidentiary rules consistent with the federal rules of evidence as provided in Title 28 of the U.S. Code.
Evidence can be testimonial or “real” in the form of documents, pictures, or things (e.g. weapons). There are two types of witnesses. A fact witness provides factual testimony based on personal knowledge and is not allowed to express an opinion based on that knowledge.7 An expert witness can formulate a professional opinion on the matter at hand, assist the fact-finder in understanding the evidence, or answer a hypothetical question. The judge decides whether a witness has sufficient knowledge, education, training, skill, and experience to qualify as an expert witness.
Testifying in a court hearing can be stressful, even for the most experienced professionals. It is crucial to be well prepared to ease anxiety, decrease the risk of surprises, and ensure that the court is provided with the most helpful information possible.7 This involves reviewing all the medical records related to the case and any subsequent letters or documents generated.
It is crucial for the physician to confer with the attorney who subpoenaed him or her before the court date. This allows the physician to share knowledge or concerns that may be of interest to the lawyer, as well as any fears or past experiences.7 The attorney should provide the physician with the theories of the case and a list of questions he or she intends to ask. The attorney may also discuss the opposing counsel’s theories and anticipated questions. The physician should inquire whether documents will be admitted partially or entirely into evidence and whether he or she will be asked to use them as part of the testimony.7 It is critical that the attorney be aware of the physician’s opinion and understand the reasoning behind that opinion. The physician must be firm about the limits or scope of both his or her factual testimony and opinions. If the attorney presses for answers or opinions that the physician is uncomfortable giving, this must be expressed.7
On the day of the trial, the physician should dress professionally, arrive early, and notify the attorney of his or her presence. This allows time to clarify any new issues that may have arisen since the last contact. Of note, witnesses often are sequestered, meaning that they are allowed in the courtroom only during their own testimony. In some cases, the court may permit the physician to be in the courtroom during the opposing side’s expert testimony.
While on the witness stand, it is imperative that the physician listen to and understand each question. If the question is not fully heard or comprehended, the physician must ask the attorney to repeat the question. Questions should be answered with truthfulness, precision, and clarity. It may be necessary to define unfamiliar terms and explain difficult concepts. Always attempt to answer questions in language that is understandable to laypeople. In the event the physician does not know the answer to a question or cannot remember, he or she must say so.7
The initial part of expert testimony involves qualifying the physician as an expert. The attorney begins by asking a series of identifying and qualifying questions regarding the physician’s professional education and experience.7 In some instances, the physician’s curriculum vitae will be admitted as an exhibit. The opposing counsel then has an opportunity to ask further questions to refute this qualification.
Once the physician is qualified as an expert, testimony can take one of three forms: an opinion, an answer to a hypothetical question, or a lecture that provides background information for the judge or jury.8 Most often the expert is asked to render an opinion based on the facts of the case. Sometimes the expert’s testimony is in the form of an answer to a hypothetical question that includes significant facts relevant to the case at hand. On occasion, an expert may testify in the form of a lecture that provides the fact-finder (i.e. judge or jury) with background information on technical, clinical, or scientific issues.8
Whatever the form of question and answer, it is important that the answer be well thought out, accurate, and clearly articulated. The physician should explain all conclusions and analyses in terms that are understood by the fact-finder and ensure that he or she does not exceed the bounds of his or her expertise or exaggerate in any manner. In formulating an opinion, an expert may rely on all relevant clinical, scientific, historical, and factual information. Experts are not allowed to express an opinion on legal issues such as the guilt or innocence of a defendant.
During cross-examination, the opposing counsel will attempt to show the fact-finder that the expert’s testimony is flawed in some way. This may involve trying to discredit the expert’s knowledge of the relevant evidence or posing other theories to explain the child’s condition. An expert who has thoroughly reviewed all medical documents and relies on up-to-date knowledge in the field will be well equipped for cross-examination. The expert should also be prepared to explain the nature of possible differential diagnoses, their manifestations, and why they are not a plausible explanation for the matter on which the expert has given his or her opinion.7
Once again, it is imperative that the physician be attentive and understands each question asked by the opposing counsel. Although attorneys are not allowed to ask “leading” questions during direct examination, such questions are allowed and are often used during cross-examination. Usually these take the form of yes or no questions, which the opposing counsel uses to control the witness and the testimony. If a question cannot be answered truthfully yes or no, the expert should say so and qualify the answer. The expert is also entitled to request to clarify a previous answer if it appears that he or she misspoke or misunderstood the question.7
If the expert was not allowed to fully answer a question or the expert’s testimony was undercut during cross-examination, the direct examiner will attempt to clarify the expert’s testimony during the redirect examination. This portion is usually limited to areas of inquiry pursued in or raised by cross-examination.7
If there is “reasonable cause” to suspect that a child has been maltreated, the physician must file a report with the state CPS agency and/or a law enforcement agency. In questionable cases, one can always call CPS to inquire whether a certain incident or circumstance should be reported.
Physicians should know their state laws, hospital practice procedures, and venues for support services with regard to child maltreatment.
Ensure complete, accurate, legible documentation in patients’ medical records, especially when dealing with cases of suspected child maltreatment. Those records may be subpoenaed by a court of law.
Physicians should be well prepared before testifying in court, whether as a factual witness or an expert witness. This includes reviewing all medical records and conferring with the attorney who subpoenaed the physician.
MW. The assessment of child abuse: a primary function of child protective services. In: Heifer
RD, eds. The Battered Child. 5th ed. Chicago, IL: University of Chicago Press; 1997:120–149.
Definitions of Child Abuse and Neglect in Federal Law. US Department of Health and Human Services. Child Welfare Information Gateway. Available at: childwelfare.gov/can/defining/federal.cfm
. Accessed March 2013.
R. Child abuse and the law I: general issues for the radiologist. In: Kleinman
PK, ed. Diagnostic Imaging of Child Abuse. 2nd ed. St Louis, MO: Mosby; 1998:371–374.
HA. The courts and child maltreatment. In: Helfer
RD, eds. The Battered Child. 5th ed. Chicago, IL: University of Chicago Press; 1997:482–499.
M. Child abuse and the law II: the radiologist in court. In: Kleinman
PK, ed. Diagnostic Imaging of Child Abuse. 2nd ed. St Louis, MO: Mosby; 1998:375–382.
JEB. Legal aspects of child abuse. In: Reece
CW, eds. Child Abuse Medical Diagnosis and Management. 3rd ed. American Academy of Pediatrics; 2009:813–851.