Q: A high school female recently alleged that a male student sexually assaulted her during a passing period. After investigation, we disciplined the male in accordance with the Student Code of Conduct and made a report to law enforcement. The parent is now claiming that we should have contacted CPS because of the sexual nature of the offense. Did we violate the law by not reporting this to CPS?
A: No. Only when the alleged abuse or neglect was at the hands of someone responsible for the “care, custody, or welfare” of the child, is a report to CPS triggered. You can make all other reports of abuse (including assault) or neglect to either local law enforcement or CPS.
The Texas Family Code section 261.101(b) provides that a “professional” (including a certified educator) must make a report of abuse or neglect within 48 hours after the professional first suspects that a child has been harmed. Importantly, this duty to report cannot be delegated away to any other individual (i.e., a teacher cannot report alleged neglect to the principal in the hopes that the principal will make the report on their behalf). Each “professional” under the law must make a report when they have reason to suspect abuse or neglect of a child.
The report must be made to the appropriate agency, as explained in Texas Family Code section 261.103, which provides that generally reports shall be made to: any local or state law enforcement agency; DFPS (commonly called “CPS”); or a state agency that operates the facility where the abuse occurred. One important exception exists, providing that a report must be made to DFPS/CPS “if the alleged or suspected abuse or neglect involves a person responsible for the care, custody, or welfare of the child.” Persons responsible for the “care, custody or welfare” of a child include the child’s parents, adult family relatives, legal guardians (including foster parents), or an adult with whom the child’s parent cohabitates. The exception also includes anyone working for the school district in whom the child’s care is placed during the day, including administrators, teachers, paraprofessionals, bus drivers, other auxiliary staff, and school volunteers.
In the scenario described above, the alleged abuse occurred at the hands of a male peer, who is not responsible for the female student’s care, custody or welfare. Thus, the educator, could have made the report to either local law enforcement or CPS (who would likely have simply referred it to law enforcement anyway). Under the instant facts, the report to local law enforcement was appropriate and satisfied the reporting obligation. Keep in mind that all abuse/neglect situations are extremely fact intensive; therefore, we always recommend calling your school district’s legal counsel to ensure that district staff is each individually meeting reporting requirements during such an investigation.