AGLO 1976 No. 77 - Dec 21 1976
CHILDREN ‑- SCOPE OF CHILD ABUSE REPORTING LAW
(1) The definition of "child abuse and neglect" contained in RCW 26.44.020 includes cases where the injury suffered is a mental as well as a physical injury and would also encompass cases of harm brought about by failure to provide adequate food, clothing or shelter.
(2) The fact that Christian Science is specifically mentioned in RCW 26.44.020(3) does not mean that a parent or guardian practicing other religious beliefs, who thereby does not provide specified medical treatment for a child, is for that reason alone to be considered a negligent parent or guardian.
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December 21, 1976
Honorable Milton Burdman
Secretary, Department of Social
and Health Services
Olympia, Washington 98504 Cite as: AGLO 1976 No. 77
By letter previously acknowledged you have requested the opinion of this office on the following four questions regarding provisions of the child abuse reporting law.
(1) Is the definition of "child abuse and neglect" contained in RCW 26.44.020 broad enough to include cases where the injury suffered is a mental injury?
(2) Is the foregoing definition of "child abuse or neglect" broad enough to include cases of harm brought about by failure to provide adequate food, clothing or shelter?
(3) Does the fact that Christian Science treatment is specifically mentioned in RCW 26.44.020(3) mean that a parent or guardian legitimately practicing other religious beliefs, who thereby does not provide specified medical treatment for a child, for that reason alone could be considered a negligent parent or guardian?
(4) Is the state requirement of reporting on the basis of "reasonable cause to believe that a child has suffered child abuse or neglect" equivalent to the federal requirement for reporting "suspected" cases of child abuse as contained in Public Law 93-247?
We answer questions (1) and (2) in the affirmative, question (3) in the negative and question (4) in the manner set forth in our analysis.
Your questions all center upon an interpretation of certain provisions of chapter 26.44 RCW, commonly referred to as the child abuse reporting law, as amended by the 1975 legislature. The principal purpose of this law, which originated through the enactment of chapter 13, Laws of 1965, is to provide for the protection of minors who have fallen victim to injury, sexual abuse or negligent treatment or maltreatment by their parent(s) or other person(s) legally responsible for the child. See, AGLO 1976 No. 37 [[to Mike Parker, State Representative, on June 10, 1976, an Informal Opinion, AIR-76537]], copy enclosed. To facilitate this purpose, [[Orig. Op. Page 2]] RCW 26.44.050 provides for the investigation of child abuse reports by law enforcement agencies or the department of social and health services. The investigating agency is then required by the statute to provide a report to the child protective services section of the department of social and health services and, when necessary, to refer the report to the court. A report thus submitted may possibly form the basis for the provision of child welfare services to the child's parents, guardians or custodians pursuant to chapter 74.13 RCW or the initiation of dependency proceedings pursuant to chapter 13.04 RCW. Accord, AGLO 1976 No. 37,supra. Dependency proceedings may result in a removal of a parent's or legal guardian's custody and control of the child.
For the purposes of chapter 26.44 RCW, the term "child abuse or neglect" is defined as follows in RCW 26.44.020(12):
"'Child abuse or neglect' shall mean the injury, sexual abuse, or negligent treatment or maltreatment of a child by a person who is legally responsible for the child's welfare under circumstances which indicate that the child's health, welfare and safety is harmed thereby. An abused child is a child who has been subjected to child abuse or neglect as defined herein. 'Negligent treatment or maltreatment' shall mean an act or omission which evinces a serious disregard of consequences of such magnitude as to constitute a clear and present danger to the child's health, welfare and safety: Provided, That this subsection shall not be construed to authorize interference with child-raising practices, including reasonable parental discipline, which are not proved to be injurious to the child's health, welfare and safety."
Your question is whether this definition encompasses mental as well as physical injury. We believe that it does.
While the terms "physical injury" and "physical neglect" were both used by the legislature in its "statement of purpose" as contained in § 1 of the original, 1965, child abuse law (chapter 13, Laws of 1965), the word "physical" was deleted by the 1975 amendatory act, chapter 217, Laws of 1975, 1st Ex. Sess. Thus that section of the law, now codified as RCW 26.44.010, presently reads as follows:
[[Orig. Op. Page 3]]
"The Washington state legislature finds and declares: The bond between a child and his or her parent, custodian, or guardian is of paramount importance, and any intervention into the life of a child is also an intervention into the life of the parent, custodian, or guardian; however, instances of nonaccidental injury, neglect, death, sexual abuse and cruelty to children by their parents, custodians or guardians have occurred, and in the instance where a child or mentally retarded person is deprived of his or her right to conditions of minimal nurture, health, and safety, the state is justified in emergency intervention based upon verified information; and therefore the Washington state legislature hereby provides for the reporting of such cases to the appropriate public authorities. . . ."
On the other hand RCW 26.44.030(3), relating to the obligation to report certain incidents to ". . . the proper county prosecuting attorney for appropriate action . . .," continues to speak of physical injury or illness, as follows:
"(3) The department of any law enforcement agency receiving a report of an incident of child abuse or neglect pursuant to this chapter, involving a child who has died or has hadphysical injury or injuries inflicted upon him other than by accidental means or who has been subjected to sexual abuse shall report such incident to the proper county prosecutor for appropriate action." (Emphasis supplied.)
Thus, in our opinion, the legislature has clearly manifested an understanding of the significance of the modifying word "physical" when applied to the noun "injury." By not using that term in the definition of "child abuse or neglect," as set forth in RCW 26.44.020(12),supra, the legislature has thus indicated an intent not to limit that phrase to purely physical, as distinguished from mental, injuries to a child ". . . by a person who is legally responsible for the child's welfare. . ."1/
Next you have asked whether the same definition of child abuse or neglect would include cases of harm brought about by a failure to provide adequate food, clothing or shelter. We also answer this question in the affirmative.
[[Orig. Op. Page 4]]
It is a fundamental principle of law in this state that a child's welfare is the court's primary consideration. In re Sego, 82 Wn.2d 736, 513 P.2d 831 (1973), and In re Becker, 87 Wn.2d 470, 553 P.2d 1339 (1976).
There is no doubt that harm to a child caused by failure to provide adequate food, clothing and shelter could constitute a clear and present danger to the child's health or welfare. In this regard, we also note that it has been held that malnutrition and a failure to adequately provide for children is a sufficient basis for entering findings of dependency in juvenile court proceedings. State ex rel. Bulmon v. Superior Court, 21 Wn.2d 536, 151 P.2d 987 (1944), andIn re Price, 13 Wn.App. 437, 535 P.2d 475 (1975).
Your third question involves so much of RCW 26.44.020(3) as provides that:
". . . a child who is being furnished Christian Science treatment by a duly accredited Christian Science practitioner shall not be considered, for that reason alone, a neglected child for the purposes of this chapter."
The issue raised by this question, as we understand it, is whether some sort of a negative implication is to be derived from this provision. In other words, does the fact that the legislature has expressly said that a child being furnished Christian Science treatment shall not, for that reason alone, be deemed to be a "neglected child" mean that the opposite is necessarily true in all other cases in which a child, because of the regligious beliefs of his parents or guardians, is not provided with specified medical treatment.
We think not and thus answer your third question in the negative. In addition to Christian Scientists, there are numerous other persons whose bona fide religious beliefs are opposed, at least under some circumstances, to the use of medical or surgical treatment for injuries or disease. We do not believe that the legislature, by singling out that one religious body and saying that a child is not to be deemed "neglected" solely because he is treated by a Christian Science practitioner, intended to imply that any other child from whom specified medical treatment is withheld for religious reasons is, for that reason alone, to be regarded as a "neglected child."
[[Orig. Op. Page 5]]
Whether any child who is denied medical treatment for a disease or injury is thereby to be viewed as having been "neglected" will depend upon all of the facts of the particular case. One of those facts (for better or worse) may be the religious beliefs of his parents or guardian. All that the legislature has said is that in the case of practicing Christian Scientists that fact alone is not to be taken as proof that the child, by being treated by a Christian Science practitioner instead, has been neglected. Conversely, in other cases the fact that the child, instead of receiving medical treatment, was treated by a religious practitioner may, by itself, establish neglect ‑ but not necessarily.2/
Your final question, repeated for ease of reference, is as follows:
"Is the state requirement of reporting on the basis of 'reasonable cause to believe that a child has suffered child abuse or neglect' equivalent, to the federal requirement for reporting 'suspected' cases of child abuse as contained in Public Law 93-247?"
This unfortunately, is not a question which we may fully answer in an attorney general's opinion. While we may most certainly advise you as to the proper interpretation (as we view it) of our own state statutes it has long been the policy of this office to refrain from issuing opinions on the meaning or interpretation of federal laws. The basic reason for this policy is that where federal legislation is involved, and where that legislation is administered by a federal agency, no opinion fromthis office could have any possible force or effect on the actual enforcement of the legislation by the federal agency having jurisdiction.
Bearing that in mind we turn to RCW 26.44.030 which, after requiring various designated practitioners of the healing arts, or certain others, to report apparent cases [[Orig. Op. Page 6]] of child abuse or neglect ". . . to the proper law enforcement agency or to the department of social and health services . . .", goes on, in subsection (2), to say that:
"Any other person whohas reasonable cause to believe that a child has suffered child abuse or neglect may report such incident to the proper law enforcement agency or to the department of social and health services as provided in RCW 26.44.040 as now or hereafter amended. (Emphasis supplied.)
The terms "reasonable cause" and "probable cause" are ordinarily viewed as being synonomous. See, e.g.,Ladd v. Miles, 171 Wash. 44, 17 P.2d 875 (1932). As defined in Black's Law Dictionary, 4th ed., reasonable and probable cause means ". . . a suspicion founded upon circumstances sufficiently strong to warrant reasonable man in belief that charge is true. . ." citingMurphy v. Murray, 74 Cal.App. 726, 241 P.2d 938 (1952). Thus, translating this definition into terms applicable to RCW 26.44.030(2),supra, it is our opinion that the reporting requirements of that statute are applicable in any case where a person (other than one of those mentioned in RCW 26.44.030(1), supra) becomes possessed of information justifying a reasonable man to suspect that a given child has suffered child abuse or neglect. For the above explained reasons, however, whether this means precisely the same thing as the phrase ". . . suspected instances of child abuse and neglect. . ." as used in § 4(b)(2)(B) of Public Law 93-247 is a question which can only be answered by the federal authorities responsible for administering that statute.
It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
WALTER E. WHITE
Assistant Attorney General
*** FOOTNOTES ***
1/Contrast, also, RCW 26.44.030(2), quoted at p. 6, below.
2/In thus answering your third question we express no opinion with regard to the constitutionality of RCW 26.44.020(3), supra, insofar as it singles out one particular religion only for special treatment. Accord, the long-standing policy of this office, since statehood, to assume the constitutionality of all statutes duly enacted by our state legislature, as explained in numerous prior opinions. See, however, Amendment I to the U.S. Constitution and Article I, § 11 of our own state constitution, both of which prohibit the passage of laws in aid of any particular religion.