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Top court to review abuse reporting case

Copyright © 2014 Albuquerque Journal

When the Legislature amended a law to say “every person” has a duty to report suspected child abuse or neglect, did it mean literally everybody or just the categories of professionals it listed?

The meaning of the language is at the heart of a case that the New Mexico Supreme Court has just decided to hear.

The court granted review at the request of the state Attorney General’s Office after a trial court and the New Mexico Court of Appeals ruled against prosecutors in an Albuquerque criminal case. The 2nd Judicial District Attorney’s Office criminally charged a man who had disclosed alleged abuse of a child in his family during professional counseling sessions with a social worker.

The defendant’s attorneys asked the trial judge, Jacqueline Flores, for an order protecting the social worker from being forced to provide records of the sessions. She did and the state appealed.

The New Mexico Court of Appeals in November affirmed Flores’ decision, but with a dissent that may have encouraged the high court to take on the issue.

The majority said that interpreting the statute’s phrase “every person” in its broadest and most literal sense “would render the inclusion of specific categories of professionals essentially meaningless.” The state’s Abuse and Neglect Act, enacted in 1965 and amended at least twice to make reporting mandatory, says “every person” must report suspected abuse or neglect, but it goes on to define ten categories of individuals who are required to disclose abuse or be subject to sanctions.

Those categories include physicians, residents or interns treating a child, law enforcement officers, judges presiding during a proceeding, registered nurses, visiting nurses, school teachers, school officials, social workers acting in their official capacity and clergy who have information that is not privileged.

The appeals court said the statute does not keep anyone else from reporting their suspicions, but it imposes an affirmative duty only on those listed categories of professionals and others like them – those most likely to encounter abuse and those who can effectively identify it.

Within those categories, there is the potential for criminal prosecution for failing to act. It is a criminal misdemeanor to have knowledge of abuse or neglect and fail to report it.

Psychologists and psychotherapists were not included in the categories of those covered by the mandatory reporting requirement, the court noted.

The Attorney General’s Office, by contrast, argued that the Court of Appeals ruling conflicts with other, prior case law and “ignores the plain language of the statute.”

The statute requires reporting by social workers “acting in their official capacity,” and the appeals court said the language did not apply to the defendant’s counselor, who was working in a private capacity and not in a school or government agency.

In a dissent, Appeals Court Judge J. Miles Hanisee wrote that he construes the term “every person” to mean anyone who is aware of or reasonably suspects that a child is being abused.

Hanisee noted that Florida and Texas have enacted laws that require all individuals, whether professionals or lay people, to report suspected abuse or neglect, and that courts in those states have interpreted the broadly inclusive language in a straightforward manner.

The Attorney General’s Office argues that the Legislature meant for any social worker in an official capacity to be required to report knowledge or suspicions of child abuse and to bar him or her from asserting a privilege against disclosure.