On demand 1h 48s Basic

Oregon Child and Elder Abuse Reporting

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Oregon Child and Elder Abuse Reporting

Lawyers in Oregon, like many other mandatory reporters, may not be experts in identifying child abuse and elder abuse. The mandatory reporting statutes in Oregon are intended to identify possible victims of child abuse and elder abuse so that the allegations can be assessed by qualified child welfare and adult welfare professionals. Lawyers will often encounter victims of child abuse and elder abuse but must critically analyze their ethical obligations, their attorney-client relationship, and their statutory obligation to report abuse. Additionally, lawyers in Oregon are required by the Oregon State Bar to receive regular training in child abuse reporting as a part of their continuing legal education requirements.

This course will cover who must make mandatory reports of child abuse and elder abuse, how to make mandatory reports, how to identify potential child abuse and elder abuse, and any exceptions to the mandatory reporting requirements for lawyers. Additionally, this court will cover the balance between mandatory reporting of child abuse and elder abuse and a lawyer’s obligation to protect the attorney-client relationship as outlined in the Oregon Rules of Professional Conduct.

Transcript

Hi, my name is Matt Muenzen and this is the CLE on Oregon child and elder abuse reporting. I am a lawyer in Portland, Oregon. I work for Gevurtz Menashe I has my history has been. I was a former police officer and worked for the Tennessee Department of Children Services as an attorney for a long time, and then started working in family law in Tennessee and moved out to Oregon and now do family law and juvenile law out here. So I have experience with mandatory reporting both in Tennessee and Oregon. You might hear me refer to Tennessee a little bit more, because I did some policy work regarding the reporting statute in Tennessee. And so the learning objectives for this CLE is going to be we're going to recognize the importance of mandatory reporting in Oregon. We're going to define the mandatory reporting law for children and the elderly. We're going to identify mandatory reporters in Oregon law and what must be reported. We're going to discuss exceptions to reporting requirements and also, finally, how to review properly and review properly reported child abuse and elder abuse to the state. So we'll do a little introduction and then talks about some federal law. Then the statutes and how it plays with lawyers and the Oregon Rules of Professional Conduct. Then we'll talk about abuse and reporting, some confidentiality exceptions and immunity. And then I will pose some hypotheticals. So like I said, my name is Matt Muenzen and I am a lawyer. I've been practicing law since 2008, in Tennessee and in Oregon. Uh, I have experience with both statutes, uh, legislation and policy regarding mandatory reporting, uh, mostly in Tennessee, a little bit in Oregon. And so it's very important for lawyers to well, first of all, it's a mandatory, uh, mandatory CLE that to take in your, your reporting cycle. But it's also important because lawyers in Oregon are mandatory reporters, which is different in Tennessee where everybody was a mandatory reporter no matter what your job. But in Oregon, there's a statute that will go over that has a list of. Professions that require mandatory reporting, and attorneys are in that list. So on the federal level, the Child Abuse Prevention and Treatment Act, which is 42 U.S.C. 5101. States must have procedures for reporting known or suspected instances of child abuse or neglect. There must be provisions for the immunity of persons who report known and suspected child abuse or neglect, and there has to be methods to preserve confidentiality of child abuse and neglect. Records. So obviously, child abuse in Oregon is investigated by the Oregon Department of Human Services, the Child Protective Services Division. Uh, once a case is transferred within DHS, it goes over to permanency case managers. But primarily we're going to be talking about is CPS or, um, also for adult protective services for elderly persons. So historically, my my experience has been with children and child abuse reporting. Um, but there is also adult protective services and elderly abuse reporting. And so I will be covering both of those. So Oregon Statute 419 B ten. I is the or one is the child abuse reporting statute and it says any public or private official having reasonable cause to believe that any child with whom the official comes into contact has suffered abuse, or that any person with whom the official comes in contact has abused a child shall immediately report or cause a report to be made in the manner required in ORS 419 Be 15. And then nothing contained in those statutes affect the. The statutes in this statute refer to affects the duty to report imposed by the section, except that a psychiatrist, psychologist, member of the clergy, attorney or guardian ad litem appointed under 419 B 231 is not required to report such information communicated by a person if the communication is privileged, so those statutes under title 40 are related to attorney client privilege, and the 419 B is the juvenile code. An attorney is not required to make a report under the section by reason of information communicated to the attorney. In the course of representing a client, if disclosure of the information would be detrimental to the client. So the statutes that are related to child abuse reporting are 419 B005 through 050. And we're going to talk a little bit more about this. But this is this is how attorneys are protected regarding the rules of professional conduct and their ethical requirements about protecting their client and enforcing the attorney client privilege, but also the balance of protecting children from child abuse or further abuse or neglect, or potentially hurting themselves or others. The elder abuse reporting statute is ORS 1240631. Any public or private official having reasonable cause to believe that any person 65 years of age or older, with whom the official comes in contact has suffered abuse, or that any person with whom the official comes in contact has abused a person 65 years of age or older shall report or cause a report to be made in the manner required in ORS one, two, 4 or 6 five. So very, very similar language between the Child Abuse reporting statute and the elder abuse reporting statute. Obviously the age requirement in elder abuse is different. Um. Ors 1240 62. Nothing contained in the ORS title 40, which is the attorney client privilege, affects the duty to report imposed by the section, except that a psychiatrist, psychologist, member of the clergy or attorney is not required to report such information communicated by a person if the communication is privileged under those statutes. Ors 1240 60. Subsection three states an attorney is not required to make a report under the section by reason of information communicated to the attorney in the course of representing a client, if disclosure of the information would be detrimental to the client. So again, the the balance between reporting of elder abuse and protecting the elderly from abuse or neglect is balanced for lawyers given a a specific statute that makes them have a duty to report, but gives them somewhat of an out if the disclosure would be detrimental to an attorney's client. Just quickly to note, there are two other mandatory reporting statutes for 37. 65 is regarding abuse for adults with mental illness or developmental disabilities, and 441 640 has to do with abuse reporting for residents of Long Terme care facilities. So as specifically mandatory reporters. Attorneys by statute for child abuse are under 419 B0056M. Where attorney is specifically listed as one of the professions in which. There are mandatory reporters for abuse or neglect. As far as elder abuse is concerned, statute is 1240509R, which also lists attorney as a required mandatory reporter. So as far as an attorney and what needs to be reported, you have to report abuse. If you come into contact with an abuser or a victim, and you have reasonable cause to believe that a protected person has been abused. So that's how the statute's broken down contact with an abuser or a victim, and reasonable cause to believe that a protected person has been abused, unless there is an exception. Those two exceptions listed here. Ah one. The information is already known by DHS or law enforcement. So if I'm in, if I'm at a meeting and I'm representing a child and I'm at a meeting at DHS and, uh, child makes a disclosure, obviously DHS is known is hearing the disclosure, and there's no need to make a report if I'm in court, if I'm out talking to a child at a home visit, if I represent a parent and I find information, as long as I know that DHS already knows about the case, or law enforcement already knows about it, I don't have to make a separate and new referral. Attorney client privilege exists and disclosure would be detrimental to the client. So that's what that's what we've been talking about at the beginning of this Co was the rules of professional conduct. And attorney client privilege as we know belongs to the client in this case a child or a parent or essentially anybody involved with a potential abuse or neglect case. And that disclosure would be detrimental to a client. So you'll have to do an evaluation. If you represent a child, you'd have to see if, um, if making a referral would hurt the child or help the child. If you represent a parent or a family member or a coach or a teacher or a pastor or somebody else, that's a mandatory reporter, you would have to decide and do an evaluation if the disclosure would hurt your client or would help your client. It's important to note that this reporting requirement is 24 over seven 365. It's you have to make a report. If you come across information that a child or an elderly person has been abused or neglected. That's that's a change in 1991, it used to only be when in the performance of your official duties. So if you were a nurse and you were on a shift and you thought a child was abused, you were mandatory reporter requirement. But if you left your shift, you went out, you were on your way home and you saw, uh, your neighbor strike his child in the driveway. You wouldn't be a mandatory reporter because you weren't in the performance of your official duties. But since 91, that's changed. And now all mandatory reporters must make a report any time they have reasonable cause to believe that child abuse or elder abuse has occurred. Going through your employment policy is not always enough. And that's according to 419 B0104. Uh, a lot of organizations, hospitals, schools, uh, mental health providers, they have internal policies on making reports to DHS for child abuse and elder abuse. Uh, making your report through. If you're a teacher and you suspect abuse and you report it to HR or whoever you're supposed to report it to per your policy, that doesn't mean that you still don't have to make a referral. So as far as attorneys are concerned, um, if you work for an organization or a law firm or an agency that has a specific policy on making DHS reports, you obviously have to follow your policy, but you also have to follow the law and make a report for reasonable cause of child abuse or elder abuse or neglect, as long as it is not detrimental to your client. So what's reasonable? Cause. Any reasonable suspicion of abuse should be reported. It's more than a hunch, and it requires an ability to point out articulable facts based on the totality of the circumstances. Which sounds very much like probable cause in the criminal world. Your obligation to report does not depend on whether the abuse in fact occurred. So you don't have to do your own investigation. You don't have to interview or interrogate witnesses. You just have to have information that abuse or neglect potentially occurred, and you have to make the mandatory report. So what is contact? Touching meeting, association or relationship does not have to be associated with the abuse. Receiving information in a public meeting with somebody is not sufficient. And there's case law about that that I'll go over later in the presentation. All types of contact, written and verbal, and it can be after the abuse or after the disclosure. So if you find out, um. You have a meeting and you hear a child disclose abuse from seven years ago. There is still a mandatory requirement to report that, and it's up for DHS and law enforcement to screen in the case or screen out the case and whether to investigate it or not investigate it. So let's talk a little bit about how lawyers are specifically affected with ethical rules and the mandatory reporting statute. So. Rule of Professional Conduct 2.1 representing a client A lawyer shall not exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may not refer. May refer not only to law, but to other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation. So there's some discretion there. By having the ability to exercise independent professional judgment and render candid advice. Think under rule 1.6. A. A lawyer is prohibited from revealing information relating to the representation of a client. 1.6 B5 permits, but does not require a lawyer to disclose information relating to the representation. Of a client when required by law. So a lawyer can report child abuse, as required by law, without violating the lawyer's ethical duty of confidentiality to a client. So when we're as attorneys and we are contemplating whether we have an ethical duty to report or not, the statute says we have to report. The rule of professional conduct says if the statute requires it, then you can do it. However, if there's an exception like the exceptions we talked about, the most important one being that it's detrimental to your client. A lawyer is not required to report. Reporting is still allowed. If there's informed consent, implied authorization, client intends to commit a crime or to prevent injury or death. And that's that's beyond the mandatory reporting statute. That's in all cases regarding attorneys. And when the confidentiality somewhat goes away. So as referred to earlier, the. Statute is 40.225. The lawyer client privilege. Section two says a client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client. So this is the lawyer lawyer client privilege, uh, that we we all use this even outside of the context of mandatory reporting. Uh, obviously, if there's a third party present and this is not a CLE on lawyer client privilege, but if there is a third party present, then the lawyer client privilege potentially could go away. So that's something to consider when doing your evaluation of whether or not you have to make a mandatory report for child or elder abuse, if there is reasonable cause. So there's two statutes for immunity. The first is for child abuse. The second is for elder abuse. The child abuse immunity statute, says anyone participating in good faith in the making of a report of child abuse, and who has reasonable grounds for the making thereof, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed with respect to the making or content of such report. Any such participants shall have the same immunity with respect to participating in any judicial proceeding resulting from such report. So good faith requirement. So you need to have reasonable cause. You have to be a mandatory reporter. If you make your report in good faith, without any malicious intent or any negligent intent in the making of a child abuse report, and you have the reasonable grounds or reasonable cause for making that report, you are immune from any liability, both civil or criminal, and you have immunity even if you are in a court proceeding regarding that report. The legislative intent of these mandatory reporters and the statutes is to encourage people in Oregon and whatever state they might be in, to make child abuse reports if they feel like a child has been abused. Or an elder has been abused under the elder immunity statute. The legislature is encouraging people, citizens of the state, to make reports without the fear of retribution or any sort of negative consequences from making the reports or from just getting involved. A lot of the times we see anonymous reports because people just simply don't want to be involved, but they want to make sure that children and the elderly are protected from abuse. So the elder abuse statute somewhat mimics the child abuse statute. Anyone participating in good faith in the making of a report of elder abuse, and who has reasonable grounds for making the report, shall have immunity from any criminal or civil liability that might otherwise be incurred or imposed with respect to the making or content of such report. Any such participant shall have the same immunity with respect to participating in any judicial proceeding resulting from such report. The statutes are identical. The only difference is the language of liability, and criminal and civil are switched around for some unknown reason. So how does one report abuse this? This for everybody. But, uh, especially attorneys as mandatory reporters, you have to immediately make a report without delay. Once you are aware, you have reasonable cause to believe that a child or an elderly person has been abused or neglected. The statutes allow for a report to DHS or to law enforcement directly. Uh, or report is required. Right now. Uh, you need to give as much information as possible, explain what the abuse is that you're reporting, and there's a hotline. That you can call or contact your local DHS branch. In Tennessee, there was a system that you were able to make referrals through the website. Uh, you could go online and make a referral instead of calling and waiting on the phone. Uh, I to my knowledge, Oregon has plans to do that, but it's not in effect as of now. It's hard for DHS to investigate allegations against children or the elderly if they don't have any information about the children or the elderly, so they need as much information as possible. They need names, ages, addresses, schools, nursing home facilities, um alleged perpetrators, contact information for alleged perpetrators, any potential corroborating parties or collateral interviews that can be addressed. The allegation of abuse must be explained. There needs to be. A specific allegation of abuse. Um, it'll be screened out if it doesn't fit the criteria. And I'll talk a little bit about what is abuse in Oregon. So basically what I talked about before, the names and addresses both the victim and the alleged perpetrator, nature and extent of the abuse, an explanation given for the abuse and the cause of the abuse and identity of the perpetrator. One thing that I've experienced in both from the being a lawyer for a child welfare agency and defending parents from actions from a child welfare agency, and representing children in the middle of these child welfare proceedings, is that just because there's a specific type of injury that's not necessarily child abuse or neglect? But if the history that's given to typically a medical provider does not match with the injury that the child or elder person is presenting with, then that is. Investigate it for potential abuse. So it's important to give the the background of the alleged abuse, the extent of the alleged abuse and any explanations that are given for the abuse. So for child abuse under the statute 419 B005. Physical abuse, sexual abuse, sexual exploitation, mental injury, rape, neglect, drug exposure, threat of harm, child selling, methamphetamines in a structure and drug exposure. So those are the general categories of what abuse for children is considered. Um, neglect is abuse in as far as the statute is concerned in Oregon. Um, typically most of the DHS cases obviously fall fall under one of those categories, even though it might be a more specific allegation. The default in general allegation is threat of harm. That is typically used when something doesn't fall under a specific category. But there is a concern that a child is abused or neglected, but it's not one of the specifically listed categories. Under 418 257 one. Parties under the age of 21 who are in foster care or any sort of care and receiving services. Uh. Are potential victims of child abuse, even though they might be adults in age if they're 18, 19, 20 or 21. If they're under 21 and in care or receiving services, there's still referrals will be screened in by DHS. So there's a reasonable discipline exception for children in Oregon. Uh, 419 B0051B defines abuse as not including reasonable discipline unless the discipline results in one of the conditions described in paragraph A of this subsection. And the physical abuse definition is physical injury. So if there is an injury to a child and there's a claim that it was reasonable discipline, that will obviously depend on the specific circumstances of the case and the alleged abuse. Um, historically, when I've seen discipline issues in the context of child welfare, we talk about the specific type of injury received. So we're talking about redness or are we talking about a handprint or are we talking about a bruise? Are we talking about a broken bone? Are we talking about a laceration? And then we also talk about where on the body are we talking about a head, a face, an arm, buttocks, legs, chest, back. So case by case basis, it's somewhat subjective. What one person considers abuse might not be what another person considers abuse. Some parents are in favor of corporal punishment. Some parents are not in favor of corporal punishment. So if you spank a child, one set of parents might think that's abuse. Another set might not. But if it's beyond redness and it's beyond an area like the buttocks where children are typically spanked, if you have a bruise on an arm, if you have a handprint on a back, if you have a laceration on a face, then most likely that's not going to be considered reasonable discipline. There's a duplicate report exception for the child, and we kind of talked about that earlier with DHS and law enforcement as an exception, in addition to, um, the attorney client privilege. But if a report has already been made or there's a proceeding already pending and reasonable belief, the information is already known. So if you're representing a child in a DHS petition in juvenile court and they talk about, um, a new disclosure made by a child for some sort of abuse or neglect is obviously reasonable belief. The information is already known since DHS is talking about it, or the attorney General's office is reporting on it. So there there's there's no need to make a new, new exception, no reason to make a new report, because there's an exception for the duplicate report. So some signs of child abuse include. Any unexplained injuries or one that doesn't fit the explanation given for it. That's kind of what I was talking about earlier when giving information to referrals in the referral. If you're a mandatory reporter. Um. Yeah, I mean, so I mean parents obviously young kids hurt themselves. Young kids have accidents, young kids fall off of changing tables, and young kids get their arms and legs stuck in cribs, and elderly people fall out of wheelchairs and slip with canes and, um, stand up and and fall down. I mean, those are explained injuries. And as long as there is a history or a story that matches that unexplained injury, then typically it won't be considered abuse. The the problem is, is when, especially with younger children, like crawling children who aren't able to walk and the type of bone fracture that they receive is typically the type of, uh, fracture that is seen through a squeezing or a twisting motion. Um, it would be kind of hard to defend the allegation of physical abuse if your child who does not walk receives a, uh, fracture of a type that's done through a different type of motion. So the history needs to match the injury. Injuries in various stages of healing. So. Typically when if there's a physical abuse case, especially DHS will have medical exams performed and they'll do a full skeletal scans to see if there's any other injuries if the child presents with an injury. Um, I've had cases where broken healing ribs have been found and broken arms have been found. Some of them were explained, some of them were unexplained. Some were, um, were known about. Some were unknown about. The next one. Multiple bruises or bruises on soft tissue or any bruise on a baby. Um, obviously the argument that, you know, the baby rolled over and hurt themselves and bruised would be a hard sell unless you could show that the baby had some sort of blood disorder or he bruised easily. There used to be, um. And again I said, I've been doing child welfare law, family law for about 15 years. And it used to be that doctors and medical professionals would be able to kind of time stamp a bruise. So an acute injury would be a dark purple or a blue or black bruise. And then throughout the various stages of healing, it would turn green and then yellow and then be almost nonexistent and then nonexistent. And medical professionals used to kind of be able to say, okay, this bruise is at least six days old, or this bruise is between 12 and 14 days old. There's kind of been a practice of getting away from that because people's bodies are different. But if there are different bruises or bruises on places where there shouldn't be bruises, um, specifically, you know, the back of knees or, um. You know, the top of the head. Places where bruises shouldn't be or bruises that don't match any sort of, uh, injury will be considered. Alleged child abuse. If the child's wary of parents or adults generally, that's kind of a factor. I would say that that would have to go towards a totality of the circumstances, because a lot of children are wary of parents or adults, even without being abused. Same with fatigue, listlessness, constant hunger, unusual sexual knowledge, or inappropriately adult or infantile. All of this to say, these are factors and warning signs of child abuse. So if in doubt, my my suggestion would be to make the report. You have good faith effort. You have reasonable cause. They meet some of the factors. Um it again in my history I've. I know that bedwetting or regression to bedwetting by an older child is sometimes a sign of sexual abuse, but there also could be a physical issue. There could be an anxiety issue, there could be a number of other issues. So if yeah, if a child in a with divorced parents and the child comes back from parenting time with the other parent and what's the bed? I would say that's not necessarily in and of itself, a warning sign of child abuse and should not be reported to DHS. Um, on the other hand, if there's if there's a physical injury to a child or the child makes a disclosure and there is a bedwetting, then my, my, my opinion would be that you now have your reasonable cause and to make a good faith effort to, um, make a mandatory report. So what happens if you don't report or what happens when you make a false report? Um, this is how my role in juvenile law and family law intersects. Uh, are a lot of family law cases, dissolutions of marriages and modifications. And then there's also a DHS case. Um, either a therapist makes a referral, a doctor makes a referral, a relative makes a referral, their parents make referrals against each other. I've had judges yelling at parents for weaponizing DHS and making, uh, anytime the child comes back with a diaper rash, there's a new DHS referral. Um. Where it would be if there was more than one time or a couple times, and there was actually a true neglect case, that would be an issue. But one time diaper rash is not child abuse or neglect and does not need to be reported. But what happens if it is under 419? Be 0105. Failure to report as required by the statute is a class A violation. 153. 0182a. So the elder abuse. The penalty for. The strike that for the class A violation, a maximum fine is $2,000. 419 B016. It's a class A violation to knowingly make a false child abuse report in order to influence a custody. Parenting time, visitation or child support decision. So under the child abuse statutes, it's a class A violation maximum fine of $2,000. And it cannot be used to weaponize DHS in the middle of a family law matter. Confidentiality reports. I referred to this earlier. 419 B035 allows reporters to remain anonymous. Um, there's many reasons to remain anonymous. My guess is DHS would prefer if there was contact information for the reporter so that they could follow up with the reporter, or ask more questions, or try to find out more information. Under one, two four, 0752 and 124090. Information about reporters of elder abuse is also confidential. So reports made in good faith. Gander 419. B zero 25. Any one participating in good faith in the making of a report of child abuse, and who has reasonable grounds for the making thereof, shall have immunity from liability, civil or criminal, that might otherwise be incurred or imposed with respect to the making or content of such report. And then also the judicial proceeding. This was the statute that I referred to earlier. But the reason it's in here, again, there can be no negligence claim for making a report if there is good faith and reasonable grounds to report, even if it's later determined to be unfounded. So if you are a mandatory reporter, a lawyer, a nurse, a teacher. You make a report, you have good faith and reasonable grounds or reasonable cause to make the report. You have liability. There is a case, I don't remember if I quoted it in this presentation, but there is a Court of Appeals case where somebody was sued for making a report and it was dismissed or. Yeah, dismissed on the Court of appeals because there cannot be a negligence claim if there is good faith or reasonable grounds. You'd have to show some sort of maliciousness, some sort of, um, non firsthand knowledge. You it doesn't matter whether or not the assessment is founded or unfounded. It is just I'd use the words unfounded and assessment. Dhs has assessments. They're no longer necessarily investigate called investigations. They're called assessments. There are three classifications for DHS assessments founded, which means they believe it happened. They have reasonable cause to believe it happened unfounded. There's no proof they don't believe it happened, or there's no proof or unable to determine. That means they it might have happened, it might not have happened. But they're unable to determine if there aren't able to talk to the child, they're unable to talk to an alleged perpetrator. They don't have enough information to be able to even determine whether it should be founded or unfounded. So turning over to elder abuse for a minute or S1240501 lists the types of elder abuse a couple of different types here than in child abuse. A lot of similarities, but also some differences just because of the age difference. So physical abuse obviously same as child abuse, neglect, same abandonment, including desertion or willful forsaking of an elderly person, or the withdrawal or neglect of duties or obligations owed an elderly person by a caretaker or other person. So the abandonment would be the same with the child, including a desertion, but the willful forsaking of an elderly person. Or if you have a duty or an obligation to to care for an elderly person, then it's elder abuse if you neglect those duties and obligations. Willful infliction of physical pain or injury upon an elderly person that's the same as a child. Certain crimes under the criminal statute. Verbal abuse. A little bit different than a child for child, you'd have to show some psychological damage. Under an elder abuse, verbal abuse. I mean, it's assumed that the the elderly person is has the capacity to understand the abuse and understand that it is negative. Financial exploitation. Obviously, this is different than from a child. Um, this is of somebody trying to steal money from an old person or taking advantage of an elderly person's finances. Sexual abuse. That's the same as a child. Involuntarily involuntary seclusion of an elderly person for the convenience of a caregiver, or to discipline the person. So we don't typically see this with children unless they're in a facility. But this is essentially putting an elderly person in solitary as if it was a prison or a jail. Um, because the caregiver has to go run out to the car and they don't want the elderly person to leave the house or go into another room, so they seclude them in a closet or lock them in a room, or do something where it's involuntary and it's it's for the benefit of the caregiver and not for the elderly person. Or to discipline the person, which would be like a solitary in a prison or a jail where, um, if if the if the elderly person spits on a caregiver or spits out chewed up food and the the caregiver locks the person in the closet as punishment for spitting out the chewed up food, then that's considered elder abuse. The wrongful use of a physical or chemical restraint of an elderly person, excluding treatment activities or in connection with a court order. So that's somewhat different from a child as well, unless they're in a facility or a residential placement. But using a physical or chemical restraint on an elderly person in a wrongful manner that's not considered treatment or not ordered by a court. So there is still spiritual treatment exception for elderly uh or US 124095. It's got to be voluntary. It's got to be through prayer from a recognized church. From a duly accredited practitioner not considered abuse by reason of neglect. So if the statute specifically states that it's got to be a recognized church, if somebody is going to pray cancer away instead of taking chemo, then there is an exception for elderly. No such exception for children. And in fact, even as recent as yesterday or the day before, I saw a case where a mother was convicted in Oregon for using, I believe, essential oils and some other holistic medicine. For a child with cancer instead of chemo treatment, and she was charged and convicted. So similar to child abuse. Some warning signs for elder abuse. Obviously the unexplained injury or one that doesn't fit the explanation given for it. A little bit different with children, different bone structures, different bruising capabilities, different medical conditions, different medications. Um. Elderly people perhaps take Coumadin, which is a blood thinner, which might make them bleed or bruise easily. Uh, never seen a child on Coumadin, although it probably could happen for the right cardiac reason. But I went to law school and not medical school. But again, just like with child abuse, the injury has to meet the history. If a caregiver says the person fell out of the wheelchair on accident, going over a bump in the in the rug, or, uh, in the street or a sidewalk, and the person has a skull fracture and should not have hit their head based on the mechanism of the injury, then that's going to be a strong sign of potential elder abuse. Um, but an elderly person is not prevented to speak for themselves or without the presence of other. If if an alleged perpetrator is not allowing an elderly person to say what happened or how they were injured or anything like that, that's obviously a warning sign. Part of the investigation is speaking to the victim themselves, as long as as well as the alleged perpetrators. And so forbidding any communication is a warning sign of abuse. Being extremely withdrawn or non-communicative or non-responsive. Again, the same with child abuse. Um, warning signs in and of itself being withdrawn, being non-communicative or non-responsive, not necessarily in and of itself a sign of elderly abuse, but taken into consideration with some other warning signs or some other factors, or other unexplained injuries or injuries with histories that don't jive together with the injury. A warning sign. Same with unpaid bills. Overdue rent. Utility shut off notices. So who decides if it's abuse? As I said earlier, a reporter for child abuse and elder abuse does not need to investigate allegations. That a reporter mandatory reporter this case for the purposes of this cle a an attorney. Does not need to investigate the allegations. The allegations are best left investigated by DHS and law enforcement as lawyers. Speaking from a. Now, this applies to all mandatory reporters, nurses, teachers and lawyers as well as the other professions. But can taking into consideration from a lawyer's perspective, um, and I would imagine that a district attorney or a attorney general representing DHS would not want reporters investigating allegations, taking statements, speaking to children, interviewing collateral sources, um, doing medical exams, doing forensic interviews. Because from a prosecutorial standpoint, you want the child to have the same version of the story the entire time from the defense attorney. You want to be able to say that the child made a disclosure, then change the facts and disclosure and other time, and then change the facts again. And another disclosure. So from a lawyerly standpoint, from a liability standpoint, there's no need to investigate the allegations DHS will screen in the case or screen out the case and they will investigate it or not. You don't need to actually determine whether abuse occurred or not. And we talked about this earlier as well. It can be alleged abuse. It could be whether you heard that abuse happened or you saw abuse happened or you think that abuse happened. It doesn't have to be an actual determination of whether or not abuse to a child or an elderly person occurred. That's up to the investigating people. They have to decide. Is there a reasonable suspicion of abuse? Now just because and and I'm going to go back and talk a little bit more about the rules of professional conduct. But just because a reporter can make a. Or just because a mandated reporter has to make a report. If they don't, if they're not mandated under those specific circumstances, they can always make a voluntary report if there are no confidentiality issues. So a nurse who's a mandated reporter, if it's not something that needs to be reported, then they could always choose to make the report out of an abundance of caution. But if it's not something that's a mandatory report, they don't have to involuntarily make the report. I would argue with lawyers there will be confidentiality issues unless there's some sort of set of facts or circumstances that differentiate it. So I would say as lawyers, your ability to make a voluntary report would probably fall under some of the exceptions that I talked about earlier regarding informed consent. I've represented children in the past who wanted me to make a DHS referral because they felt like they weren't, um, being heard with their allegations. So and I made the determination that it was not detrimental to them. In fact, it could help them. And so I made the report, even though I didn't have the first hand reasonable. Grounds to make the report. I did make the report under a voluntary status. If in doubt and there are no ethical issues, I would make the report. As lawyers, I would seriously do your evaluation. Even if you need to contact a PLF or talk to another ethics attorney or an attorney that specializes in juvenile law. Uh, I would just do some due diligence in making sure there are no ethical issues when you're making your report. Some hypotheticals. There's a lawyer representing a person charged with child abuse who admits past abusive acts. So the lawyer representing a person charged with child abuse, assuming it's going to be an adult. Although some children are charged with child abuse, who admits previous criminal acts of abusive acts? Should there be a report? As a lawyer. It's under the statute. The mandatory statute. It fits one of the allegations, the physical abuse of the sexual abuse or whatever other abusive act it is. However, under the rules of professional conduct, this would be detrimental almost certainly to the client. If you're representing a person charged with child abuse who admits past abuse of acts, then. I would submit that it would be detrimental to your client and your attorney. Client privilege takes over and you should not be making the referral. Now, if there's if you're representing a person charged with child abuse who makes, um. Starts talking about some potential future acts, then I think you have to do another evaluation and see if you need. If you're Attorney-client privilege is involuntarily waived because of your client's desire to potentially hurt somebody, and you need to make that determination whether you need to make the report. The second hypothetical regarding a lawyer representing a person charged with child abuse who expresses an intention to retaliate against a child for speaking with law enforcement or DHS. So the lawyer represents a person charged with child abuse. So talking most likely a criminal defense lawyer. Who expresses an intention to retaliate against a child for speaking with law enforcement or DHS. So we got to think is this is this a mandatory report? Is this child abuse is what I would have to know what the intent to retaliate means. Uh, are you going to psychologically harm the child? Are you going to be verbally abusive to the child? Are you going to lock the child in a room? Um, are you going to physically abuse the child? Um, I would say you would need to do an evaluation of what the intention to retaliate is against the child for speaking with law enforcement or DHS. I would probably say that. You would not have to make the referral if there was no, um. Potential abuse that's listed in the statute. Um, if it's just to be a bad parent or a bad family member who's going to inappropriately retaliate against a child for talking to DHS or the police, then there's a fine line between bad parenting and child abuse. And as a defense attorney, I would say that sometimes there's overzealous interpretations of the statutes and case law and determining what's child abuse. As a former police officer and the Department of Children's Services lawyer in Tennessee, I would say that there's sometimes some ambiguous acts that be can be considered child abuse, but you would have to do your evaluation about whether what the retaliation actually looks like. The final hypothetical is a lawyer representing a court appointed guardian of elderly of an elderly person suspects the guardian is neglecting elderly the elderly person based on interaction with the protected person. So here I'm pretty confident there's a mandatory report. Uh, the lawyer. There's the attorney client. So is representing a court appointed guardian. So not representing the victim, not representing another lawyer. Representing a person who suspects that the person is neglecting the elderly person. And you have your interaction with the protected person. You have your contact the lawyer representing the court appointed guardian of the suspects, the guardian. Based on interaction with a protected person, it's potentially going to be harmful to the Guardian. Um. But. Let's just read through this again. Lawyer representing court appointed guardian of elderly person. So representing the guardian suspects the guardian of neglecting the elderly person. So this could be similar to um. The first two hypotheticals in that if you're representing a person who is suspected of committing abuse against another person, but you do have that contact with the protected person, who is your duty to your duty is to the guardian. Your duty is not to the protected person. So if it's going to be detrimental to your client and there's no mandatory report, uh, there could potentially be a voluntary report on this. Um, but your, the court appointed guardian is the client, and their interests need to be recognized. I just wanted to quickly go back before we wrap up the CLE on the Oregon Rules of Professional Conduct, because this is what ties in the most with these mandatory reports. I just want to reiterate that a lawyer is not required to disclose any information. Confidential information regarding the representation of a client when required by law. But the rule. So the mandatory statute requires attorneys to make disclosures, but under the attorney client privilege and under the previously quoted statutes and the rules of professional conduct, if it's going to violate the ethical duty of confidentiality, then there a lawyer is not required to report. So that was the CLE on child abuse and. My contact information. Any questions or issues Matthew R. Muenzen? My email address, my phone number and the website. Thank you for listening.

Presenter(s)

MMJ
Matthew Muenzen, JD
Associate
Gevurtz Menashe

Course materials

Supplemental Materials

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Alabama
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    Alaska
    • 1.0 voluntary
    March 4, 2026 at 11:59PM HST Available
    Arizona
    • 1.0 general
    March 4, 2026 at 11:59PM HST Available
    Arkansas
    • 1.0 general
    March 4, 2026 at 11:59PM HST Approved
    California
    • 1.0 general
    March 4, 2026 at 11:59PM HST Approved
    Colorado
      Pending
      Connecticut
      • 1.0 general
      March 4, 2026 at 11:59PM HST Available
      Delaware
        Pending
        District of Columbia
          Not Offered
          Florida
            Pending
            Georgia
              Pending
              Guam
              • 1.0 general
              March 4, 2026 at 11:59PM HST Available
              Hawaii
                Pending
                Idaho
                  Pending
                  Illinois
                    Pending
                    Indiana
                      Pending
                      Iowa
                        Pending
                        Kansas
                          Pending
                          Kentucky
                            Pending
                            Louisiana
                              Pending
                              Maine
                                Pending
                                Maryland
                                  Not Offered
                                  Massachusetts
                                    Not Offered
                                    Michigan
                                      Not Offered
                                      Minnesota
                                        Pending
                                        Mississippi
                                          Pending
                                          Missouri
                                          • 1.0 general
                                          March 4, 2026 at 11:59PM HST Available
                                          Montana
                                            Pending
                                            Nebraska
                                              Pending
                                              Nevada
                                                Pending
                                                New Hampshire
                                                • 1.0 general
                                                March 4, 2026 at 11:59PM HST Available
                                                New Jersey
                                                  Pending
                                                  New Mexico
                                                    Pending
                                                    New York
                                                    • 1.0 areas of professional practice
                                                    March 4, 2026 at 11:59PM HST Available
                                                    North Carolina
                                                      Pending
                                                      North Dakota
                                                      • 1.0 general
                                                      March 4, 2026 at 11:59PM HST Available
                                                      Ohio
                                                        Pending
                                                        Oklahoma
                                                          Pending
                                                          Oregon
                                                          • 1.0 abuse reporting
                                                          March 4, 2027 at 11:59PM HST Approved
                                                          Pennsylvania
                                                            Pending
                                                            Puerto Rico
                                                              Pending
                                                              Rhode Island
                                                                Pending
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                                                                  Pending
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                                                                    Not Offered
                                                                    Tennessee
                                                                      Pending
                                                                      Texas
                                                                        Pending
                                                                        Utah
                                                                          Pending
                                                                          Vermont
                                                                          • 1.0 general
                                                                          March 4, 2026 at 11:59PM HST Approved
                                                                          Virginia
                                                                            Not Eligible
                                                                            Virgin Islands
                                                                            • 1.0 general
                                                                            March 4, 2026 at 11:59PM HST Approved
                                                                            Washington
                                                                              Pending
                                                                              West Virginia
                                                                                Not Eligible
                                                                                Wisconsin
                                                                                  Not Eligible
                                                                                  Wyoming
                                                                                    Pending
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                                                                                      March 4, 2026 at 11:59PM HST

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                                                                                      March 4, 2026 at 11:59PM HST

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                                                                                      March 4, 2026 at 11:59PM HST

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                                                                                      March 4, 2026 at 11:59PM HST

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                                                                                        March 4, 2026 at 11:59PM HST

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                                                                                                                                            • 1.0 abuse reporting
                                                                                                                                            Available until

                                                                                                                                            March 4, 2027 at 11:59PM HST

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