Request By:
Honorable David L. Armstrong
Commonwealth's Attorney
30th Judicial District
Jefferson Hall of Justice
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
You have asked the Office of the Attorney General to consider a matter involving KRS 199.335, which section of law is popularly referred to as the "Battered Child Act." Your question arises in the of the mandatory obligation stated in KRS 199.335 that school personnel are required to report knowledge of or reasonable cause to believe that a child has been abused or neglected to the Kentucky Department for Human Resources, Bureau for Social Services, or its designated representative. Your opinion request concerning this matter was prompted by a complaint to your office from members of the uniformed security office of the Jefferson County Board of Education that the Board of Education was not complying with the reporting requirements in matters of abuse occurring in the schools or on school property.
You further stated that a meeting has been held relative to this matter with representatives of the Board of Education, Jefferson County Juvenile Court and the Metropolitan Social Services Department (the Bureau for Social Services designate) and that all of these parties agree that KRS 199.335 requires school personnel to report instances where they believe that a child is being abused or neglected by parents, guardians or any other individuals outside of the school setting. In view of this fact, you have framed your question to us as follows:
"Does KRS 199.335 require reporting of all instances of abuse taking place in the schools or on their property or during transit to and from the schools? Such instances of abuse might include, but are not limited to, an employee abusing a child, a child abusing another child, an individual not associated with the school system abusing a child."
KRS 199.335 was amended by the 1976 Regular Session of the General Assembly to read in pertinent part as follows:
"(1) The purpose of this section, sections 530.060, 530.070, subsections (4) and (5) of KRS 208.020 and subsections (4) and (5) of KRS 208.990 is to provide for the identifying of any abused or neglected child; to require reports of any suspected abuse or neglected child; to assure that the protective services of the state will be made available to an abused or neglected child in order to protect such a child and his siblings; to further prevent abuse or neglect by any person; to preserve and strengthen family life, where possible, by enhancing parental capacity for adequate child care; and to provide for immediate and prompt investigation of such reports.
(2) Any physician, osteopathic physician, nurse, teacher, school personnel, social worker, coroner, medical examiner, child care personnel, resident, intern, chiropractor, dentist, optometrist, health professional, peace officer, mental health professional or other person who knows or has reasonable cause to believe that a child is an abused or neglected child, shall report or cause a report to be made in accordance with the provisions of this section. When any of the above specified persons is attending a child as part of his professional duties, he shall report or cause a report to be made in accordance with the provisions of this section. Nothing in this section is intended to relieve individuals of their obligation to report."
A comparison with the language of section (1) before amendment is useful in considering the question presented. Section (1) of KRS 199.335 reads:
"(1) The purpose of this section, subsections (3), (4), and (5) of KRS 208.020 and subsections (4), (5), and (6) of KRS 208.990 is to provide for the protection of children who have had physical injury inflicted upon them and who are further threatened by conduct of those responsible for their care and protection, or who are suffering from severe malnutrition, sexual abuse, or severe neglect and to bring said cases under the purview of the county court sitting in juvenile session. Any person who becomes aware of such cases shall report them to the appropriate authority thereby causing the protective services of the state to be brought to bear in an effort to protect the health and welfare of these children and to prevent further abuses and neglect. " (Emphasis supplied. )
It must also be noted that the same bill (Senate Bill 197) enacted by the General Assembly changing KRS 199.335 also amended the definitions to be used in Chapter 199. KRS 199.011 was amended in pertinent part as follows:
"(5) 'Dependent child' means any child who is under improper care, control, or guardianship that is not due to the negligence of the parent or guardian, provided that the child is not an abused or neglected child.
(6) 'Abused or neglected child' means a child whose health or welfare is harmed or threatened with harm when his parent, guardian or any other person: inflicts or allows to be inflicted upon the child, physical or mental injury by other than accidental means; creates or allows to be created a risk of physical or mental injury to the child by other than accidental means; commits or allows to be committed an act of sexual abuse upon the child; willfully abandons or exploits such child; does not provide the child with adequate care and supervision; food, clothing and shelter; education; or medical care necessary for the child's well-being; provided, however, that a parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian. This exception, however, shall not preclude a court from ordering that medical services be provided to the child, where his health requires it."
Thus, in reviewing the requirements of reporting about "any abused or neglected child" as set forth in KRS 199.335, the definition of "abused or neglected child" spelled out in KRS 199.011(6) must be carefully analyzed. It is of critical importance, reflecting back to the amendment of KRS 199.335, that KRS 199.011(6) defines "abused or neglected child" as one whose "health or welfare is harmed or threatened with harm (by) his parent, guardian or any other person. . . ." (Emphasis supplied. )
Reading the provisions of the 1976 Senate Bill 197 together, it seems apparent that the effect of these amendments was to change Kentucky's child abuse reporting law so as not to require the reporting source to identify the perpetrator as falling within and limited to a class of persons such as parent, guardian, custodian or person "responsible for their (the child's) care and protection." Cf. KRS 199.335(1) before amendment in 1976, and also the federal "Child Abuse Prevention and Treatment Act. " 1
In construing KRS 199.011(6) and 199.335, we must start with the premise that these sections speak for themselves and to recognize where possible the plain meaning of the language used in them. Consistent with this, although a contrary interpretation may have some appeal, we believe that where the statute calls for the reporting of suspected abuse or neglect of children and an "abused or neglected child" is one whose health or welfare is harmed or threatened with harm by his "parent, guardian or any other person " [KRS 199.011(6)], we must conclude that "any other person" means exactly that -- any individual, whether responsible for the care of the child or not, may be a perpetrator of child abuse. 2 Therefore, it is the opinion of this office that the Kentucky child abuse reporting laws require the reporting of all instances of abuse, as defined in KRS 199.011(6), which includes the infliction of physical or mental injury by other than accidental means, irrespective of where such abuse takes place or who the perpetrator of the abuse may be, aged three or ninety-three. Infliction of physical injury by other than accidental means taking place in the schools, on school property, during transit to and from the schools, whether by an adult or a school-aged child, must be reported by such person "who knows or has reasonable cause to believe" the abuse has taken place. KRS 199.335(2).
A local board of education has no prerogative to adopt a policy inconsistent with these laws permitting school officials to consider an incident involving injury to a child by other than accidental means without reporting the incident as required by KRS 199.335.
Footnotes
Footnotes
1 Public Law 93-247, as amended by Public Law 93-644, § 8(d) (1), 42 U.S.O. §§ 101-5106, is cited as the "Child Abuse Prevention and Treatment Act. " Section 5102 (Definitions) reads:
"For purposes of this chapter the term 'child abuse and neglect' means the physical or mental injury, sexual abuse, negligent treatment, or maltreatment of a child under the age of eighteen by a person who is responsible for the child's welfare under circumstances which indicate that the child's health or welfare is harmed or threatened thereby, as determined in accordance with regulations prescribed by the Secretary."
2 It would seem that a child abuse reporting statute lacking any concise language as to who may be a perpetrator of child abuse lends itself to an inundation of child abuse reports not totally consistent with the stated purposes of the statute. See KRS 199.335(1). For example, if a nose-bleeding fight between two young children on the playground of a school is to be reported as child abuse, this incident must, under our law, be investigated by a representative of the Bureau for Social Services or its delegated representative. KRS 199.335(3). If the purposes of the child abuse reporting law are to protect a child from further abuse, to protect the child's siblings, to strengthen family life by enhancing parental capacity for adequate child care [KRS 199.335(1)], probably none of these purposes will be met or even need to be met concerning a quarrel between children on the playground.