When Law and Ethics Collide: Social Control in Child Protective Services

Abstract

Social welfare workers in the protective services field—among them social workers, psychologists, and psychiatrists—are expected to follow the laws of the state in which they practice, but are also bound by their professional code of ethics. Often this does not present a problem, but at times ethical and legal expectations differ. This is particularly problematic where the professionals may be seen as agents of control, reporting possible child abuse, conducting child abuse investigations, inspecting homes, monitoring families, removing children from their homes and the like, often working with or reporting to law enforcement agents where expectations are different and codes of ethics absent. This paper explores the relationship between law and professional ethics, and, in particular, situations in which actions and decisions can be legal yet unethical or ethical but yet illegal. It then analyzes some critical child protective service activities where Child Protective Services (CPS) workers exert significant control over parents and children, and where the legal and ethical requirements may differ. Finally, the paper discusses the problems that CPS professionals face when law and ethics collide, and suggests various steps to resolve some of these conflicts.

Keywords:

• Ethics and Law
• Child Protective Services
• Law and Social Work
• Social Work Ethics
• Psychology Ethics
• Psychiatry Ethics
• Law Ethics and Human Services
• Child Abuse

Notes

1. See the National Association of Social Workers, Code of Ethics of the National Association of Social Workers (revised 1999); American Psychological Association, Ethical Principles of Psychologists and Code of Conduct (2002); and American Psychiatric Association, Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry (2006).

2. For more detail, see Dickson (1995, pp. 81–83).

3. Sell v. U.S., 539 U.S. 166 (2003). Compare American Psychiatric Association et al., ‘Amicus Curiae Brief in Support of the Respondent, Sell v U.S.’ 2002 U.S. Briefs 5664 with American Psychological Association, ‘Amicus Curiae Brief Sell v. U.S.’ 2002 U.S. Briefs 5664. The American Psychiatric Association Brief states: ‘This case presents no question as to capital punishment, which might involve special considerations.’ That question was presented in Singleton v. Norris (2003), where the 8th Circuit Court of Appeals (the same court which upheld forcible medication in Sell) upheld forcible medication of a prisoner to treat his psychotic symptoms although in so doing Singleton became competent and thus legally could be executed. (The US Supreme Court refused to hear Singleton's appeal and Singleton was executed on 6 January 2004 by the State of Arkansas. See About.com: <http://crime.about.com/od/death/p/x2_singleton.htm> (accessed 20 June 2009).)

4. American Psychological Association, Ethical Principles of Psychologists and Code of Conduct (2002).

5. National Association of Social Workers, Code of Ethics of the National Association of Social Workers (revised 1999).

6. American Psychiatric Association, The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry (2008 edn).

7. See generally Child Welfare League of America, Standards of Excellence for Services for Abused and Neglected Children and their Families. See also National Association of Social Workers, NASW Standards for Social Work Practice in Child Welfare.

8. Miranda v. Arizona, 384 U.S. 436 (1966). The US Supreme Court wrote:

To summarize, we hold that, when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. (Miranda v. Arizona 1966, pp. 438–39)

9. However, some states may provide some protections by statute, such as a right to counsel if parents cannot afford one. See, for example, N.J.S.A. §9.6-8.43.

10. Cal. Penal Code §11165.3.

11. ‘“Abused or neglected child” means a child less than 18 years of age whose parent or guardian, as herein defined inflicts …’ (N.J.S.A. §9.6-8.21).

12. Cal. Penal Code §11165.7 (a)(1)-(a)(37) including: ‘A physician, surgeon, psychiatrist, psychologist, dentist, resident, intern, podiatrist, chiropractor, licensed nurse, dental hygienist, optometrist, marriage, family and child counselor, clinical social worker, or any other person who is currently licensed under Division 2’ (§11165.7(a)(1)-(a)-21), but also ranging from teachers to firefighters to animal control officers. See also NY CLS Soc. Ser. §413.

13. See, for example, New Jersey Statutes: ‘Any person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse shall report the same immediately …’ (N.J.S.A. §9.6-8.10).

14. The NASW Code of Ethics provides:

Social workers’ primary responsibility is to promote the well-being of clients. In general, clients’ interests are primary. However, social workers’ responsibility to the larger society or specific legal obligations may on limited occasions supersede the loyalty owed clients, and clients should be so advised. (Examples include when a social worker is required by law to report that a client has abused a child or has threatened to harm self or others.) (NASW Ethical Standard 1.01 Commitment to Clients)

The Ethical Principles of Members of the American Psychological Association state:

Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship. (American Psychological Association, Ethical Principles, Standard 4.01 Maintaining Confidentiality)

The American Psychiatric Association's Principles of Medical Ethics makes no specific mention of child abuse, but more broadly provides: ‘When, in the clinical judgment of the treating psychiatrist, the risk of danger is deemed to be significant, the psychiatrist may reveal confidential information disclosed by the patient’ (American Psychiatric Association, Code of Medical Ethics, §4-8 (2008)). However, the American Psychiatric Association's Position Statement #199101 states: ‘Psychiatrists need to be informed of the mandatory reporting requirements of all applicable laws. The reporting of maltreatment to the appropriate agency is the responsibility of any psychiatrist, treating either or both children and adults’ (American Psychiatric Association, Child Abuse and Neglect by Adults Position Statement #199101).

15. The court noted that defendant District Attorney Foulston ‘testified that she had always interpreted the reporting statute to cover a broad range of activities. In her view … the fondling of a fifteen-year-old girl's breasts would be reportable under all circumstances …’ (Aid For Women v. Foulston 2006, pp. 1099–100).

16. The court wrote that subdivision (a) of section 288 provides:

‘[any] person who shall willfully and lewdly commit any lewd or lascivious act … upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony’ … The Attorney General concluded that because of this inability to legally consent, the mere fact of intercourse alone triggered a reporting obligation even if the trained professional had no other grounds on which to base a reasonable suspicion of actual sexual abuse. If a minor sought prenatal care, abortion or treatment for a sexually transmitted disease, the fact of prior intercourse would be obvious. Under these circumstances, the medical and nonmedical practitioner would be obligated to report the minor as a victim of abuse, because the act of intercourse alone ‘raises a reasonable suspicion that some other person has engaged in lewd or lascivious acts with the child.’ (Planned Parenthood Affiliates of California v. Van De Kamp 1986, p. 367)

17. In a similar situation several years later in another California county, the District Attorney sued a health clinic for civil penalties for failure to report child abuse, and to enjoin the clinic from violating the child abuse reporting statute. The trial court issued a broad injunction, enjoining the clinic from ‘violating section 11166 of the Penal Code by failing in the future to report as child abuse, instances where minors under the age of fourteen (14) are diagnosed as being pregnant, as having a sexually transmitted disease, or as suffering from complications of abortion.’ The majority of the California appellate court reversed, agreeing with the Van De Kamp decision and issuing an injunction, but limiting it to sexual activity between minors under the age of 14. The court held that sexual activity between a minor under 14 and person of ‘disparate age’ was child abuse and required a report. The dissenting judge in Eichenberger v. Stockton Pregnancy Control Medical Clinic argued that both Van De Kamp and the majority in Eichenberger were wrong, and that sexual activity by a minor under the age of 14 should be reported:

Where a health practitioner treats a child under 14, the observed fact that the child either is or has been pregnant or has a sexually transmitted disease alone constitutes reasonable suspicion the child has been the victim of violation of Penal Code section 288 and thus of child abuse. (Eichenberger v. Stockton Pregnancy Control Medical Clinic 1988, p. 774)

18. According to Jessica Bodger:

Increasingly, statutory rape and child abuse reporting requirements are being used to threaten reproductive health clinics with legal prosecution. Life Dynamics president Mark Crutcher, author of the Child Predators report, claims that the attorneys general of at least ten states have requested information from his organization about prosecuting clinics for child sexual abuse. (Bodger 2006, p. 585)

19. See Wisconsin: Wis. Stat. § 48.02 (1)(am), South Carolina: State v. McKnight, 352 S.C. 635 (2003).

20. Information supplied to the patients had no mention of the potential of arrest: The “To Our Patients” letter, warned patients of the dangers of prenatal drug use and further stated:

If you are using drugs, please stop! If you are unable to stop, please let your doctor know. We want to help mothers get off drugs for the benefit of both you and your baby. We will provide you counseling about the harms of drug abuse and will make arrangements for you to be seen at the Substance Abuse Clinic. We realize that drug abuse is a very difficult problem and we will do all that we can to help you.

If, however, we continue to detect evidence of drug abuse or a failure to follow recommended treatment, we will take action to protect your unborn child. The Charlestown Police, the solicitor's office, and the Protective Service Division of [the Department of Social Services] are also committed to the protection of unborn and newborn children from the harms of illegal drug abuse.’ (Ferguson v. City of Charleston 2002, p. 380)

21. See footnote 8. See also Wilkerson v. State, 173 S.W.3d 521 (2005), where the Texas Criminal Court of Appeals found that incriminating statements made to a CPS worker during an interview in jail were admissible since there was no showing that the worker was acting for the police:

There is nothing in the record to indicate that the investigating police knew about Ms. Lane-Martines's interview, that they spoke to her before the interview, that they asked her to question appellant at all or in any particular manner, or that they made any attempt to use her as a conduit for interrogation purposes. Nor is there anything in this record that indicates that it was Ms. Lane-Martines's intention to investigate on behalf of, or in tandem with, the Crowley police. (Wilkerson v. State 2005, p. 532)

22. See footnote 28.

23. However, the court noted:

“The home search cases underscore the strength of Jackie's privacy interest. As the Seventh Circuit aptly explained in a decision pre-dating its adoption of the special needs test, ‘it does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principles of human decency.” (Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980) (per curiam); note 11’ Roe v. Texas Dept. of Protective and Regulatory Services 2002, p. 406)

24. By 1997, that proportion had dropped to about 11 percent (Ehrle et al. 2001, p. 1).

25. Pearson notes:

The voluntary label is often misleading when applied to such agreements. The agency usually insists that the parents make an immediate decision, and may use tactics or threats that can be characterized as ‘blatantly coercive.’ In addition, the agency may fail to give the often frightened and unsophisticated parents the information they need to understand the serious consequences of such an emergency decision. Unfortunately, such agreements are sometimes treated as routine, voluntary waivers of parental rights. (Pearson 1998, p. 835)

26. In the Matter of David R., 420 N.Y.S.2d 675 (1979).

27. In a 1997 decision, King v. Olmstead County, the court ruled that threats by CPS workers to take custody of two other children if the parents did not sign a voluntarily agreement to relinquish legal custody of their third child, while ‘seemingly inappropriate’, were not a constitutional violation (King v. Olmstead County 1997, p. 1068).

28. The US Supreme Court stated that there is qualified immunity when ‘government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known’ (Harlow v. Fitzferald 1982, p. 818). See also Anderson v. Creighton, 483 U.S. 635 (1987). There are exceptions, however. In Calabretta v. Floyd, the US Court of Appeals found no qualified immunity:

But there is a very substantial interest, which forcing the mother to pull the child's pants down invaded, in the mother's dignity and authority in relation to her own children in her own home. The strip search as well as the entry stripped the mother of this authority and dignity. The reasonable expectation of privacy of individuals in their homes includes the interests of both parents and children in not having government officials coerce entry in violation of the Fourth Amendment and humiliate the parents in front of the children. An essential aspect of the privacy of the home is the parent's and the child's interest in the privacy of their relationship with each other … The government's interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children's interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents. (Calabretta v. Floyd 1999, p. 819)

29. For example, in Roe v. Texas Dept. of Protective and Regulatory Services, the court observed:

Strickland argues that a visual body cavity search often can disprove sexual abuse allegations. Perhaps. But their necessity in some cases does not say anything about social workers’ need to perform warrantless (court's emphasis) searches in non-exigent circumstances. The social worker can take many preliminary steps short of visual body cavity searches, such as interviewing the child and the parents. In non-exigent circumstances, the worker then has time to obtain a warrant either personally to conduct a visual body cavity search or to have a physician perform it. (Roe v. Texas Dept. of Protective and Regulatory Services 2002, p. 406)

30. State of New Jersey, Department of Human Services (2004), A New Beginning: The Future of Child Welfare in New Jersey.

Additional information

Notes on contributors

Donald T. Dickson

Donald T. Dickson is Professor Emeritus in the School of Social Work, Rutgers University, USA