For future counselors, it is important to remember the student should be at the forefront of your mind. In order to make decisions which are student-centered and developmentally appropriate. When in doubt, seek counsel from peers and also from district leadership in some cases. In the case of mandated reporting, though there may be nerves associated with making a report, the student is the priority, and his or her safety should come before anything else. State and federal laws mandate this, and it should be completed with good intentions. If not, there are great consequences for both the counselor and the student at risk.

In the event that a safety plan is warranted because the threat of immediate danger is low, the DFPS will create one to keep a child in the home, but if one is not deemed appropriate, they then put children in foster homes or with other family. In addition, this agency ensures compliance with the law in reporting and will work in cooperation with local law enforcement to investigate reporting issues.

DFPS also follows the laws (legislation in the Texas Family Code)and provides training information to mandated reporters, outlining how and when to report.

In essence, the DFPS is following the Texas Family Code, chapter 261 (2023), which is written into effect by the Texas Legislature. This code is what drives the reporting procedures and guidelines, and it is what DFPS uses to enforce compliance and consequences if a counselor fails to report. So, a counselor makes a good-faith report, then DFPS sends CPS to investigate the claim, and if found to be a situation of abuse or neglect, the child may be removed. If it is false, then there are no consequences if made in good faith. If a counselor fails to report within the set guidelines, there could be penalties in the way of fines and/or criminal charges made.

Federally, the governing agency in charge of mandated reporting is the Children's Bureau, which is part of the Administration of Children and Families (ACF). It administers the implementation of CAPTA, which was enacted to govern child abuse and neglect prevention efforts, identification, and reporting standards. Basically, what CAPTA does is set minimum standards for the states to enact in order to accomplish these goals. Then, it filters funding to the states when they are in compliance with the standards. States have to prove to the agency they are in compliance with the federal laws regarding mandated reporting to have accountability within the whole system.

So, essentially, the federal legislature comes up with the laws, like CAPTA, and then has the Children's Bureau come up with how to implement CAPTA, and then it sends the states the minimums needed to comply, and it does cover some funding in order to meet those standards. States then have to prove they are in compliance to the Children's Bureau.

https://statutes.capitol.texas.gov/docs/cn/htm/cn.1.htm#:~:text=15%2C%201876.)-,Sec.,in%20consideration%20of%20public%20services.

The Fourteenth Amendment of the U.S. Constitution would be one constitutional law which applies in the case of mandated reporting. The connection is not a direct and straightforward connection, but due process is important to parents or guardians who may be reported as being abusive or neglectful. This amendment allows for protection of the constitutional rights of parents and the freedom in raising their children with no interference, unless necessary. Any investigations need to proceed in a fair and non-discriminatory manner (U.S. Const. amend. XIV). It also gives equality to those generally discriminated against earlier in the country's history. This makes equality a constitutional right, so investigations into abuse or neglect need to be followed justly.

It is written, "nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" (U.S. Const. amend. XIV, § 1)

• This law was written during a time when not all people were given birthright citizenship. Therefore, the citizenship clause gave freed slaves citizenship.

• It ensured African Americans were given the same legal protections as whites, and

• legal proceedings and investigations had to be fair (due process).

The Texas State Constitution has a Bill of Rights, and within this is the indirect relation to mandated reporting. Article I, section 3 and 3a state, "All freemen, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services" and "Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.This amendment is self-operative" respectively (Tex. Const. art. I, §§ 3, 3a).

This particular law ensures that all people, regardless of anything, are treated equally. This means that under this law, children have certain rights, and they should not be discriminated against by non-reporting of suspicions of abuse, but it also aligns with ensuring parents or guardians who are accused of neglect and/or abuse receive these same rights as well. They deserve to be treated with fairness under the law throughout the duration of the CPS investigation.

• This law came about around the same time as the federal law, in the time period of the 13th, 14th, and 15th amendments.

• It was to ensure equal rights for everyone, especially for those who had previously been discriminated against or enslaved.

• Now it also ensures the protection of gender equality, those with disabilities, and continues to protect against racial discrimination even today.

  
  

Texas Family Code § 261.101-261.104

https://statutes.capitol.texas.gov/docs/fa/htm/fa.261.htm

Within this chapter, there are many state statutes regarding mandated reporting, but this specific sub-chapter begins with a description of who needs to be classified as a mandated reporter and what would warrant a report of child abuse or neglect.

I will pick out just one part of this statute in order to quote from and speak about since there is a lot in the chapter. The statute is written, " (a) A person having 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 provided by this subchapter.(b) If a professional has reasonable cause to believe that a child has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the professional has reasonable cause to believe that the child has been abused as defined by Section 261.001, the professional shall make a report not later than the 48th hour after the hour the professional first has reasonable cause to believe that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code. A professional may not delegate to or rely on another person to make the report. In this subsection, "professional" means an individual 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, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers" (Tex. Fam. Code § 261.101a-b, 2024).

What this law states is:

• If a person sees that there is reasonable evidence to suspect child abuse or neglect, that they need to make a report to DFPS within 48 hours of discovery or suspicion.

• Then it defines who is considered a profession, which includes anyone who has direct contact with children.

• The report has to be made by the professional and not someone else as a delegated task.

An administrative law which affects the counselor in situations of mandated reporting is the Texas Education Code § 38.004 (2023).

It states, " (a) The agency shall develop a policy governing the reports of child abuse or neglect, including reports related to the trafficking of a child under Section 20A.02(a)(5), (6), (7), or (8), Penal Code, as required by Chapter 261, Family Code, for school districts, open-enrollment charter schools, and their employees. The policy must provide for cooperation with law enforcement child abuse investigations without the consent of the child's parents if necessary, including investigations by the Department of Family and Protective Services. The policy must require each school district and open-enrollment charter school employee to report child abuse or neglect, including the trafficking of a child under Section 20A.02(a)(5) or (7), Penal Code, in the manner required by Chapter 261, Family Code. Each school district and open-enrollment charter school shall adopt the policy.(a-1) The agency shall:(1) maintain on the agency Internet website a list of links to websites that provide information regarding the prevention of child abuse; and(2) develop and periodically update a training program on prevention of child abuse that a school district may use for staff development.(b) Each school district shall provide child abuse anti-victimization programs in elementary and secondary schools" (TEC § 38.004, 2023).

In this administrative law, the TEA administers and enforces its application.

• The section above indicates that a school district should come up with a policy including how to respond to suspicions of child abuse, neglect, or trafficking.

• It also states that agencies must cooperate with law enforcement efforts.

• Any district in Texas and charters schools must adopt a policy and also have it posted on the website.

  
  

The State of Ohio v. Darius Clark (Ohio v. Clark, 576 U.S. 237 (2015))

Supreme Court Decision let mandated reporter statements be non-testimonial and admissible in court.

Summary: This is a case of a daycare working making a good faith report of suspected abuse after a 3 year old boy came to daycare with a bruised eye and some scratches on his face. He initially told her he fell, and then later disclosed it was his mother's boyfriend who was taking care of him and his sibling while his mother was out of town.

The teacher made a report, and then Clark was arrested. At trial, the little boy was not called to testify as the state typically does not have anyone below the age of 10 testify, but they did allow the out-of-court statements of the child in court. Clark was found guilty and sentenced to 28 years. But then the state supreme court reversed the decision based on a violation of the Confrontation Clause which states that a person can face their accuser.

The implications of the trial were:

• The definition of "testimonial" is more specific.

• It set the precedent of mandated reporting statements being admissible in court.

• It also shows support for children who are younger and the admissibility of their statements in court.

• It also shows value to protect the constitutional rights of defendants under the 6th Amendment, but also showed how to protect young individuals

https://www.acf.hhs.gov/sites/default/files/documents/cb/capta.pdf

CAPTA is the federal regulation that sets the minimum requirements for states in regard to mandated reporting. It makes sure that the states have standardized reporting methods, good faith protections, and confidentiality standards for reporters. In addition, it does allow for flexibility for states to set other categories of mandated reporters, requirements for suspicions, and consequences of non-reporting. It is a good example of a "filter-down" approach.

• In approaching the task of enacting CAPTA within the states, states do receive monies if they adhere to the requirements of CAPTA.

• Though CAPTA was originally enacted in 1974, it has not necessarily prevented child abuse and neglect.

• There is still much work to be done; however, it is a step in the right direction because mandated reporting is at the forefront of prevention efforts.

Covington ISD's local policy regarding mandated reporting is in accordance with the law. It also has the legal framework for each section posted along with the actual board policy. This ensures that the district is posting the correct information and the corresponding laws are visible with the requirements for the district and mandated reporters who work within the district. The law requires this information to be posted on a website for public viewing.

Under the reporting section of the policy, it states, "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 has a legal responsibility, under state law, to immediately report the suspected abuse or neglect to an appropriate authority.

As defined in state law, child abuse and neglect include both sex and labor trafficking of a child.

The following individuals have an additional legal obligation to submit a written or oral report within 48 hours of learning of the facts giving rise to the suspicion of abuse or neglect" (Covington ISD, 2021, FFG). This section is directly correlated with the actual statute which states, "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" (Tex. Fam. Code § 261.101(a)).

• The law and the district policy are almost identical. This then makes it difficult for someone reading the policy to not understand what is required of them by the state. If one reads the board policy, they have just read the statute verbiage and requirements.

• The reporting of abuse or neglect must be reported by the person who suspects, and it cannot be delegated to another person.

• It must happen within 48 hours of suspicion or a victim's admission.

• The law then specifically addresses who should make reports in the state of Texas (Covington ISD, 2021, FFG).

https://statutes.capitol.texas.gov/docs/fa/htm/fa.261.htm#:~:text=261.101.,as%20provided%20by%20this%20subchapter.

https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

The three risk management strategies for mandated reporting are below. There is a risk management strategy for individuals who are in a position to report abuse or neglect. Then there is one at the district level in order to protect the district and also the children of the district. The last risk management strategy is to apply specifically to the counselor on campus as the leader of the Comprehensive School Counseling Program.

• First, the mandated reporters on campus need to understand their roles as mandated reporters. This means they need to be aware of what the law states and the consequences for not abiding by them. This overlaps with training as a risk management strategy, but each and every person who works on a school campus, from higher administration to janitors plays an important role in managing the risk of abuse and/or neglect going undetected and continuing. There are statutes such as the Texas Education Code (2023) and Texas Family Code (2023) which provide for roles and responsibilities of mandated reporters.

The Texas Education Code (2023) states, "The agency [district] shall:(1) maintain on the agency Internet website a list of links to websites that provide information regarding the prevention of child abuse; and(2) develop and periodically update a training program on prevention of child abuse that a school district may use for staff development.(b) Each school district shall provide child abuse anti-victimization programs in elementary and secondary schools" (2 TEC § 38.004).

The Texas Family Code (2023) also stresses who reports, how they report, how quickly they report, and the content of the report they make (Tex. Fam. Code § 261.101). 

In addition, the Texas Administrative Code (2023), an administrative law, also states what the requirements are for reporting in Texas as well as applicable definitions of important wording and which schools are required to follow the law. In addition, it outlines cooperation with law enforcement as required and elements of training programs which must be present to fulfill this obligation under the law (19 Tex. Admin. Code § 61.1051).

• The second risk-management strategy I would have is that the district ensures an appropriately detailed and thorough of training employees to enhance understanding of responsibilities and how to make a report and any other details that may come up. The allows the student body to be safe inside and outside of school hours. When all employees know how to recognize abuse and neglect, the campus and district is much better off. Students function better at school, and academics can take precedent. CAPTA (1974) leaves the training requirements up to each state, but there must be some training in the district regarding who reports, how they report, and how long they have to report (Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5101 et seq. (2019)).

• The third and final risk management strategy for mandated reporting is acknowledging the counselor's role in mandated reporting and student safety. The counselor should have an ethical decision-making checklist in order to understand what actions to take, who to consult, and assess any biases they may hold. The ASCA (2022) recommends, " Apply an ethical decision-making model and seek consultation and supervision from colleagues and other professionals who are knowledgeable of the profession’s practices when ethical questions arise" (B.3.j).

The three risk management strategies are vitally important to any mandated reporter because it takes away any individual liability, plus district liability is also lessened. In addition, a student or child's situation is being assessed by professionals in order to ensure safety. This should be the priority for any counselor in the business of assisting kids develop holistically.

The ASCA Ethical Standards for School Counselors (2022) states, "Report to administration and/or appropriate authorities (e.g., law enforcement) when a student discloses a perpetrated or a perceived threat to another person’s physical or mental well-being. This threat may include but is not limited to verbal abuse, physical abuse, sexual abuse, dating violence, bullying or harassment. The school counselor follows applicable federal and state laws and school and district policy" (A. 9).

This connects directly to my topic because it lists out the types of abuse that may be present, and it also states the counselor has to follow all applicable laws and the district policy. Therefore, I have to ensure I report the abuse or neglect, and then follow any applicable school policies which do not go against the ethical codes I'm bound to. Not all district policies about notification of others would meet the ethical guidelines.

Providing accountability and transparency in the counseling relationship with the student allows for me to be able to break confidentiality without breaking trust. If I follow the an ethical decision-making model in order to make these situations more clear for the student and myself, no one will experience what my mother experienced and students will still feel they have a safe place to go at school. CAPTA, Texas Family Code § 261.101, and the Texas Education Code § 38.004 all affect my position as a mandated reporting, including my local school board policies which follow the law as well (Covington ISD, 2021, FFG).

Knowing the ethical standards that my profession requires is essential. How well I know these is indicative of the school culture and welfare my counseling program will create. I meet with students all day long, and I should be well versed in my duties according to the law, ethical guidelines for my professional role, and district policies in which I should abide. Knowing these will allow me to accomplish my educational and professional goals appropriately.

1. Know the laws to which he or she is accountable.

2. Understand how the district policies work within the letter of the law.

3. Act with the student's best interest and welfare in the forefront, above all else.

4. Consult with others in sticky situations where competing issues are present and ethical guidelines are not straightforward.

5. Prioritize meeting with students for check-ins and developing relationships which foster trust.

6. Provide consultation when district policies are being revised because as the counselor, insights only a counselor can give could be valuable.