Child Abuse Investigators: "Let 'em in." (Summer 2005)
For years, we’ve been advising school folks to tell investigators from the Department of Human Services (DHS) and the State Police (who now do investigations for the DHS) that, when they show up at school to question a child about a reported abuse case, to require either a court order or parental permission before providing access to the child at school. This piece of advice has garnered us no small amount of abuse from DHS folks, State Police investigators and others who decided that we were just doing this to be mean, or for some other malicious reason. Not so.

When an investigator comes to your school to investigate, it’s oftentimes a matter of convenience for the investigator, since he knows that it’s very likely the child will be there during the workday. That’s okay. Convenience is a good thing. However, investigators have sometimes shown up with an attitude, demanding to see the child and insisting that state law absolutely requires that we produce the child. They’d cite A.C.A. §12-12-510, and usually read it to the principal. However, they’d refer only to subsection (a) of that statute. Subsection (a) purports to provide that an investigator may enter any school or, for that matter, any home, and question the child. Subsection (b), however, tells you that, if the permission to question the child is refused, the investigator may obtain a court order requiring access to the child. In other words, permission to question the child may be refused. There was no absolute requirement that access to the child be granted, in other words.

The reason we always required a court order or parental permission before turning over the child to some non-family stranger for questioning (especially one connected with some part of the government) was to try to insulate the school and its employees from lawsuits from the parents. You can well imagine the fury of parents who have been informed that their child was questioned, at school, without their permission, by someone who was inquiring about some of the most private of private matters. Add a lawyer, and you’ve got the ingredients for Instant Lawsuit.

The Attorney General has opined in previous years that we should not make such a requirement before turning the child over for questioning. However, the AG and we have different priorities: Our priority is to try to keep you out of court.

The legislature has now amended the statute that purports to make us produce a child in an abuse investigation. Section 11 of Act 1706 of 2005 amends §12-12-510(a), with the italicized portion being added. It now states:

(a)(1) The person conducting the investigation shall have the right to enter into or upon a home, school, or any other place for the purpose of conducting and interviewing or completing the investigation required by this subchapter.

(2) No publicly supported school, facility, or institution may deny access to any person conducting a child maltreatment investigation.

(3) Failure to comply with this section may subject the school, facility or institution to contempt sanctions and reimbursement of attorney’s fees.

Problem: It doesn’t say who we’d be in contempt of, and it doesn’t say to whom we would have to pay attorney’s fees. In short, it doesn’t make much sense. It still has the language that permits government investigators to stroll into anyone’s house and start the questioning. I have some serious concerns about the constitutionality of that in particular and the rest of the statute, in general.

However, the new language of the statute, at least, seems to require that we produce the child for questioning when the investigators show up; and statutes are presumed to be constitutional. Therefore, when the investigators show up at your principal’s office, the principal is gonna say, “Wait here. We’ll bring the child to the office.” We have some “cover” there: When the parents start suing everybody in sight, we can say that we had no choice.

By the way, the AG has issued a recent opinion on this issue (No. 2005-077), again opining that we have to turn over the child for questioning (or, in some circumstances, for being taken into custody without notice to the parents). Based on the new law, we aren’t going to argue the point, despite our reservations. I would point out that the AG cites a federal district court case from Missouri, Hawley vs. Nelson, 968 F.Supp. 1372 (E.D. Mo. 1997), which he cites for the purpose of showing how silly we were all along in requiring a court order or parental permission before turning over the child to the minions of the government. However, that case would give us no comfort if we had been sued by parents for having so turned over the child. That court said that the school officials were entitled to the protection of a qualified immunity (Note: Not absolute immunity) by virtue of the fact that they knew that the student involved had a “difficult relationship” with his parents, which included (among other things) withholding him from school when he didn’t finish his chores and, oh, yes, handcuffing him. In addition, they knew that the student had been placed out of the home with other relatives for three years.

In most cases, school officials aren’t going to know diddly about the circumstances at home, and to give over a student so blithely in such a case seems to invite litigation. That might very well affect the grant of immunity by a court. Besides, a qualified immunity is something you have to ask the court to grant, assuring the court that you’ve acted in good faith, after you’ve already been sued.

Regardless, we now are advising you to accede to the demands of abuse investigators when they show up, so you won’t be held in contempt of . . . something. Or somebody.

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