Request By:
Denise Vibbert, Coordinator
Alliance II
Child Abuse/Neglect Project
325 East Main Street
Morehead, KY 40351
Opinion
Opinion By: Steven L. Beshear, Attorney General; Elizabeth A. Myerscough, Assistant Attorney General, Special Prosecutions Division, 909 Leawood Drive, Frankfort, Kentucky 40601, (502) 564-2348
I am in receipt of your letter requesting an Attorney General's Opinion in which you pose two questions concerning the application of the child abuse reporting statute to actions taken by community child abuse consultation teams.
First you ask:
Whether confidentiality mandated by KRS 199.335(3) and (9) is breached by the Bureau for Social Services sharing information with Community Consultation teams on a case of suspected or confirmed child abuse.
No. By contract with the Cabinet for Human Resources, community consultation teams have agreed to ascertain facilities within the community available to serve abused children and their parents and to so advise the local Bureaus for Social Services. More specifically, the community consultation teams are currently in the process of, or envision in the near future, advising local Bureau for Social Services offices of the most appropriate treatment or response to be taken in particular cases of child abuse and reviewing and evaluating the treatment programs recommended. Cases are identified and referred to the consultation teams by the local Bureau for Social Services office. By contract, community consultation teams can be regarded as an agent for or arm of the Bureau for Social Services concerning recommended treatment in child abuse cases.
KRS 199.335(3) states:
"The Bureau may request and shall receive from any agency of the state or any other agency institution or facility providing services to the child or his family, such cooperation, assistance and information as will enable the Bureau to fulfill its responsibilities under this section." (Emphasis added).
It is evident from the reading of this section of the statute that the Bureau for Social Services may request assistance in identifying and treating child abuse cases from any agency or organization providing child or family services whether or not such agency is state affiliated. Local consultation teams fall within the purview of this section.
KRS 199.335(9) states:
"All information obtained by the bureau staff or its delegated representative, as a result of investigation made pursuant to this section shall not be divulged to anyone except: (a) persons suspected of neglect or abuse, provided that in such cases names of informants may be withheld, unless ordered by the court; (b) persons within the bureau with a legitimate interest or responsibility related to the case; (c) other medical, psychological, or social service agencies or law enforcement agencies that have a legitimate interest in the case; (d) cases where a court orders release of such information."
Since the local consultation team through its contract with CHR can be considered an agent thereof, it is appropriate under the subsection (9)(b) for the Bureau to share information concerning a particular case of child abuse with the consultation team. Even if the consultation team were not considered an extension of the Bureau, the consultation team is a multidisciplinary agency composed of professionals from the fields of medicine, psychology, social service and law enforcement. Due to the composition and purpose of the consultation team, the Bureau sharing of information with the team falls within the scope of subsection (9)(c).
Furthermore, subsection 8 prescribes certain duties the Bureau for Social Services must perform regarding reports of abused or neglected children. Although these duties are couched in general terms, the statute anticipates individualized programs. It is naive to presume the Bureau can provide all these services; thus, the statute allows the Bureau to seek assistance from other agencies. In order to coordinate services, information concerning the report, investigation and findings of child abuse and neglect must of necessity be shared.
Secondly, you ask:
Are team members personally liable for recommendations concerning treatment programs or placement of children? For example, a team in its members best judgment recommends that a child be returned to the natural family. If the child is then abused or otherwise endangered, are team members liable?
The answer is a qualified no. By contract, local consultation teams make recommendations as to treatment and placement of an abused or neglected child only after the social worker for the Bureau for Social Services has requested assistance. At this point, it appears the consultation team is exercising a discretionary function. Kentucky case law indicates a public officer or employee is immune from personal tort liability for the consequences of discretionary acts. Thompson v. Huecker, Ky.App., 559 S.W.2d 488 (1977). Furthermore, the consultation team does not possess the final decision-making authority. In the last analysis, the Juvenile Courts determine what action is to be taken regarding placement of the child.
If you have any further questions, do not hesitate to call or contact me at the address below.