Back to News list

Chessie Thacher Secures Pro Bono Victory from the California Supreme Court

The Daily Journal

A state Supreme Court ruling handed down Monday will force law enforcement to work more closely with child welfare agencies and share information about all alleged child abuse incidents, instead of filtering out reports that responding officers did not deem to be credible.

The San Bernardino County Sheriff's Department erred when it failed to share information about a reported child abuse incident with the county's child welfare agency, overturning rulings from the appellate and superior courts, the state high court concluded.

In the incident in question, law enforcement responded to a 911 call reporting suspected child abuse.

An officer determined that the child's parents were involved in a child custody battle and that child abuse hadn't occurred. After determining that a crime wasn't committed, neither the officer nor the larger police department reported the incident to other agencies intended to protect children.

Approximately three weeks later, the child suffered “extensive head injuries” while visiting his father once again, according to court filings.

The mother sued the sheriff's department and the individual officer for failing to report the incident to the child welfare agency.

The state Supreme Court ruled that the sheriff's department's failure to report the incident constituted a violation of the Child Abuse and Neglect Reporting Act, or CANRA.

The justices, however, concurred with their lower court counterparts that the individual officer didn't have an individual duty to report.

Justice Ming W. Chin, quoting from CANRA, noted that it calls on law enforcement agencies to cross-report “every known or suspected instance of child abuse or neglect reported to it which is alleged to have occurred as a result of the action of a person responsible for the child's welfare.”

But Chin and the concurring justices didn't find that there is an individual duty to report for the deputy herself, reasoning that the officer's role was to be an investigator and not a mandated reporter when responding to a 911 call.

The state Supreme Court remanded the case after dismissing the summary judgment ruling for the sheriff's department and granting it for the individual deputy.

Justice Goodwin H. Liu dissented in part, arguing that the distinction between an officer's role as an investigator and a mandated reporter is arbitrary, meaning the individual officer should also face liability.

He said legislators intended to write redundant protections into the law to ensure that all possible instances of child abuse are reported to a child welfare agency.

“If the Legislature had intended one role to take precedence over the other when an officer is following up on a reported incident of suspected child abuse, presumably it would have said so,” he wrote.

Christopher J. Keane, of The Keane Law Firm PC, who represented the plaintiff, said he agreed with Liu and would have preferred a ruling that also found the officer liable for failing to report, but he believed the outcome to be a success overall.

“I think it's a great thing not only for the little guy I represent, but all the kids everywhere whose child abuse reports have been received by police departments and filed in the cabinet instead of received by [a child welfare agency].”

Keane said more information sharing is needed to give children the best chance of having their issues identified and addressed.

“Mandate reporting is like an intelligence collection agency,” he said. “People who work at [child welfare] are living in an information vacuum and the more information they get the better opportunity they'll have to make critical choices.”

Norman J. Watkins, a partner at Lynberg & Watkins, who represented the County of San Bernardino and other defendants, said he was in court and unavailable to comment.

Chessie Thacher, an associate with Keker & Van Nest LLP who wrote pro bono amicus briefs for a variety of children's rights groups in collaboration with the National Center for Youth Law, agreed that the opinion was mostly positive, although she also preferred Liu's reading of the law.

“We like to think of CANRA as shining a bright light in a shadowy world,” she said. “Today's opinion makes that light shine a little brighter.”

Jennifer Bacon Henning, litigation counsel for the California State Association of Counties, who wrote amicus briefs for her agency and the League of California Cities, said her constituents were hoping for a ruling that gave officers and police departments more discretion in determining what cases should be reported, in order to avoid overwhelming agencies with false reports.

Henning said she was glad the ruling preserved the individual officer's discretion, but would have liked the same ruling for the overall department. She said the law will definitely change how some law enforcement departments operate.

“There will be clear policies in place that require all reports, no matter how specious, to be cross reported,” she said. “Any agencies not doing that now will clearly have to do that.”