Request By:
Mr. David L. Keller
Executive Director
Kentucky School Boards Association
Route #3, Box 96A
Englewood Office Park
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
As Executive Director of the Kentucky School Board Association, you have posed three questions:
"1. Are Kentucky school boards, administrators, and teachers required by Kentucky law to allow social workers or other legal authorities to come onto school grounds to interview students suspected of being abused children?
"2. If Kentucky law requires school boards, administrators, and teachers to allow social workers or other legal authorities to come onto school grounds to interview suspected cases of child abuse, what duties do the board and school employees have to the child's parent as to notification before or after the interview? Can a social worker or other legal authority lawfully require that the interview take place at school without consent or knowledge?
"3. If a social worker or other legal authority can lawfully require that the interview take place without parental consent or knowledge, do the immunities in KRS 199.335(6) protect school districts and their employees from any civil or criminal claim arising from the interview? If the interviews are optional on the part of the school, do the immunities extend to a school district or employee who allows an interview to take place on school grounds without parental knowledge or consent?"
Important to our consideration of your questions is KRS 199.335(3) which states:
"(3) A report shall be made immediately by telephone or otherwise to the department or its delegated representative. If the person making the report has reason to believe that immediate protection for the child is advisable, that person shall also make an oral report to an appropriate law enforcement agency. If the report is made to any agency other than the department, such agency shall promptly refer the report to the department. The report shall be followed by a written report within forty-eight (48) hours if so requested by the department. The department or its delegated representative shall upon the receipt of the initial report immediately send a report of suspected physical or sexual abuse to the appropriate law enforcement agency for any appropriate action. Such report shall contain the names and addresses of the child and his parents or other persons responsible for his care, if known, the child's age, the nature and extent of the child's abuse or neglect (including any evidence of previous abuse or neglect) to this child or his siblings; the name and address of the person responsible for the abuse or neglect; and any other information that the person making the report believes may be helpful in the furtherance of the purpose of this section.
The department 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 department to fulfill its responsibilities under this section." (Emphasis ours).
Even assuming the school has not made the initial report, it is clear from the underlined passage of KRS 199.335(3) that the Department has a right to request and must receive such cooperation from school personnel as is necessary to comply with KRS 199.335. It is our opinion that this would include an interview on school grounds.
As to parental notification, we stated in OAG 80-50 that the Department's workers may examine children at school in regard to child abuse or neglect reports without first obtaining the consent of the parents of the child in question.
We believe that for the school to notify the parent prior to the interview may not aid the Department in its investigation, but may have the opposite effect. For example, if the school notifies the parent of the impending interview, it may give an abusive parent either the opportunity to so intimidate the child that he or she will be afraid to tell the truth, or to rehearse the child in a plausible story to explain away evidence of abuse, or to remove the child completely so the Department has no opportunity to speak to the child.
If the school informs the parent after the interview, it may still impede the investigation. The parent may then remove the child from the Department's jurisdiction or abuse the child in an effort to deter the child from speaking to the interviewer.
Once a report has been made, the Department has authority over the investigation of suspected child abuse, and it is not within the purview of the school to interpose its judgment as to informing the parent. As OAG 77-365 stated, "We believe that this statute places abused children under the jurisdiction of the Bureau for Social Services. It also provides all the safeguards as to privacy, confidential informants and due process."
It is our suggestion that before the school informs the parent that an interview has taken place, the school consult the Department for Social Services and obtain permission to inform the parent. If the Department directs that the school should not inform the parent, then pursuant to the mandate to cooperate, as stated in KRS 199.335(3), the school must comply with that directive.
It should also be pointed out that KRS 199.335(8) mandates a prompt investigation:
"(8) Upon receipt of a report of an abused or neglected child pursuant to this section, the department as the designated agency or its delegated representative shall initiate a prompt investigation, take necessary action and shall offer protective service toward safeguarding the welfare of the child, preventing further abuse or neglect of the child or any other child under the same care, preserve and strengthen family life, where possible, by enhancing parental capacity for adequate child care." (Emphasis added).
Often, "prompt" may mean at school so as to allow the Department to obtain evidence of alleged abuse or neglect while such evidence is still readily available. Or, school may be where the child is located when information indicating an emergency has been reported. It is clear from KRS 199.335 that the Department is to vigorously investigate suspected cases of child abuse. It is also clear that school boards, administrators, and personnel are to facilitate these investigations for the protection of the child.
It is the Department's responsibility to safeguard all information obtained as a result of the investigation, and it is not for the school to divulge. KRS 199.335(9) states:
"(9) All information obtained by the department 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 department 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; and
"(d) Cases where a court orders release of such information." (Emphasis ours).
Finally, if the school is not the reporter, the immunities of KRS 199.335(6) would not seem to expressly apply. KRS 199.335(6) states:
"(6) Anyone acting upon reasonable cause in the making of a report pursuant to this section, KRS 530.060, 530.070, subsections (4) and (5) of KRS 208.020 and subsections (4) and (5) of KRS 208.990 shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed. Any such participant shall have the same immunity with respect to participation in any such judicial proceeding resulting from such report."
However, though we cannot predict how a court would rule, we believe that a school which is the scene of the interview by the social worker should be considered immune from any civil or criminal liability for permitting the interview to take place, as such cooperation with the Department is mandated by KRS 199.335(3).
In conclusion, it is our opinion that KRS 199.335 requires Kentucky school boards, administrators, and teachers to allow the Department for Social Services or its delegated representative to come onto the school grounds to interview students suspected of being abused or neglected children.
The school should consult with the Department and obtain permission prior to informing the parent of the interview. If the Department directs that the school should not inform the parent, then pursuant to its mandate to cooperate, as stated in KRS 199.335(3), the school must comply with that directive.
Finally, if the school is not the reporter of the suspected abuse, the immunities granted by KRS 199.335(6) do not expressly apply; however, immunity should be found to apply to a school where the interview with the child takes place, as such cooperation is mandated by statute.
We trust this adequately responds to your request.