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What Happens if a Mandated Reporter Fails to Report?

Many mandated reporters are worried they will get in trouble if they don’t make a report to child protective services (CPS) when they have a concern about a child, impacting their autonomy as a professional. To learn more about the conflict between mandated reporting and autonomy, check out my blog post here. 


As a result, they make a report to CPS to avert the risk of “failing to report”. Many of these reports, however, are unnecessary, and ultimately problematic and destabilizing to the families they report. When a mandated reporter has concerns about the treatment of a child, instead of fearing retribution for “failing to report” they should consider if they are required to report those concerns to CPS


A mandated reporter making a call to Child Protective Services.

ONLY SOME, NOT ALL, CONCERNS OF THE CARE OF CHILDREN

ARE REQUIRED TO BE REPORTED TO CPS


A mandated reporter is only required to make a report to CPS when:


  1. Their concerns meet a definition of child maltreatment in their state; AND,

  2. They have the legally required level of suspicion, usually “reasonable suspicion” or “reasonable cause to suspect”. 


To help you evaluate these questions, use our Mandated Reporter Guide, available to download when you sign-up on our Home Page


When a mandated reporter’s concerns meet the legal threshold to require a report to CPS in their state they can be held legally liable if they do not make that report. We call this “failure to report”. Check out my blog post here where I dive into the specifics of mandated reporting even when a professional is not “on-duty.”


Mandated reporters can be held criminally liable for failing to make a report, and can be successfully sued for such failure, as well. However, it is very rare for a failure to report case to be identified, and even more rare that a mandated reporter is punished for their failure to report.


In order for a mandated reporter to be held liable for failing to make a report all the following conditions have to be met:


  1. Someone else needs to identify the child maltreatment;

  2. Someone else needs to determine that the mandated reporter had concerns that they didn’t report; AND

  3. A court needs to determine that the mandated reporter knew, or should have known, that they were required to make the report, and they did not.


This is a pretty complicated set of circumstances, and thus, there are very few cases where a mandated reporter is accused of having failed to make a report. And even in the rare cases where a mandated reporter is arrested and/or sued for failing to make a report, they are even less likely to be ultimately be held responsible for failing to report. 


You’ve probably seen these cases on the news. The rare cases that result in liability for failure to report are usually egregious cases where there was significant evidence of child sexual abuse and/or extreme child physical abuse and the mandated reporter failed to make the report, usually to protect a colleague or employer who was the wrongdoer. You’ve probably seen other cases where mandated reporters are arrested and charged with the crime of failure to report, but more often than not, those charges are eventually dropped or dismissed


For decades, mandated reporters have been scared into making millions of unnecessary reports to CPS.  Trainers have consistently told mandated reporters “have a concern? Make the report to protect yourself; A report can’t hurt.” The media has covered cases in ways that seem to convict mandated reporters of crimes they eventually are determined to not have committed. These trainings and related media coverage results in mandated reporters who act on fear, not legal or ethical obligation.  


When mandated reporters make reports to CPS that are not legally required, the family they report to CPS is likely to distrust that reporter, and anyone else in that role. Unnecessary reports make parents and children wary of seeking help from teachers, doctors, nurses, social workers, therapists, etc. Families that don’t feel comfortable seeking help are not getting the assistance they need, putting children at more risk of negative outcomes.


Instead of making unnecessary reports to CPS:

  • Evaluate whether you are required to make a report to CPS, using our Mandated Reporting Guide;

  • Document your decision;

  • Regardless of your decision, help a family find the resources they need to support their children. 


To avoid unnecessary reports to CPS mandated reporters should understand their role, and work to support families, not report families, whenever possible. To learn more, check out our blog post: “The Best of Intentions”. You should also aim to learn more about a project to replace mandated reporting with “mandated supporting”. 


For more information and resources, check out the blog on our website.

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