Ethical Violations by School Counselors: Loss of Custody, Defamation, and other Penalties
Provided by HG.org
Some parents may find themselves on the receiving end of false allegations of child abuse or neglect. Sometimes these reports originate from school or therapists. If a parent discovers that there may have been collusion to make a false report or that the reporter had a conflict that puts his or her credibility in question, the parent may wonder what recourse may be available.
Approximately 48 states along with the District of Columbia, Puerto Rico, the Virgin islands, American Samoa, Guam and the Northern Mariana Islands have laws in place that require certain professionals to report suspected child abuse or neglect. These professions usually include individuals who work closely with children, such as teachers, principals, other school personnel, doctors, nurses, counselors, therapists and child care providers. The other two states require anyone to report suspected child abuse or neglect without having to be a member of a certain professional group. If these individuals suspect child maltreatment, they are required to report these suspicions to a specific state agency or call a hotline number.
If a mandatory reporter suspects child abuse and does not report it, many states have the power to impose penalties on these individuals who knowingly or willfully fail to make a report. Some states consider failing to report a felony while most states consider it a misdemeanor. Some states can prosecute the failure as a misdemeanor or felony based on the seriousness of the alleged conduct and harm. Possible penalties include imprisonment and significant fines. Due to these possibilities, many professionals choose to report the slightest suspicion of child maltreatment to avoid facing such significant consequences to their personal and professional lives.
Approximately 29 states impose penalties on a person who willfully or intentionally makes a false report of child abuse or neglect. The reporter must know that the information is false. Immunity from civil or criminal action that is usually provided to reporters of abuse or neglect is not provided to those professionals who make a false report in some states. False reporters may be charged the costs of the investigation and may be civilly liable for any damages that resulted because of the false report in some states.
Defamation, Libel or Slander
When someone is the victim of a false allegation, he or she may typically turn to defamation laws as a possible source of recovery. A lawsuit of this nature must usually demonstrate the following elements:
1) A defamatory statement was made against the victim
2) The defendant made an unprivileged publication of the statement to a third party
3) The defamatory statement was made in a negligent manner
4) The victim suffered damages as a result of the defamation
The major concern of bringing forth a defamation or libel suit based on a false allegation to CFS is that this communication is often considered privileged. There are certain statements or reports that are exempted from defamation laws and these usually qualify.
Child Custody Matters
If the report was made to try to persuade a court to grant greater custody rights to the reporting party, this information may be relevant in a child custody case. Many courts consider any history of false reports when making decisions related to the children. Even if this factor is not specifically listed in state custody laws, many states have a catchall provision that includes any information that is relevant to determining what is in the child’s best interest. The court may consider such false reports or collusion as an attempt to alienate the child from their parent and can modify existing custody provisions or make new decisions about custody and related matters based on this type of information if the parent seeks court intervention.
Counseling Ethical Violations
School counselors, psychologists, psychiatrists and other mental health professionals have a set of ethical duties that they owe to all of their patients. One common ethical duty is not to engage in conflicts of interest. If a counselor is providing counseling services to one person, he or she may need to recuse himself or herself from counseling a party he or she knows. Likewise, if he or she has a personal relationship with someone, this may bar him or her from counseling that person or others close to him or her. Counselors should be able to provide objectivity and if they cannot, they should not engage in a counseling relationship. Violating ethical duties can result in a party making a report to the state licensing board about the violation.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.