Adoption Assistance and Child Welfare Act

In 1980, Congress passed the Adoption Assistance and Child Welfare Act (AACWA) in response to the increasing number of children in the foster care system. This legislation required states to make “reasonable efforts” to avoid removing children from their homes and to reunite families when removal was necessary. Additionally, the AACWA provided financial incentives for adoption when family reunification was not possible. Then, in 1994 Congress passed the Multiethnic Placement Act (MEPA), which prohibited child welfare agencies from delaying or denying adoptive placements on the basis of race but allowed race as a consideration in placement decisions. In response to criticism that this perpetuated attitudes against interracial adoption, MEPA was amended in 1996 to narrow the circumstances in which race may be considered to those in which specific child needs make race important to successful placement.

Counselor Considerations Ethical standards. The American Counseling Association has outlined standards of ethical practice for the mandated reporting of child abuse. According to the ACA Code of Ethics section B.2.a: The general requirement that counselors keep information confidential does not apply when disclosure is required to protect clients or identified others from serious and foreseeable harm or when legal requirements demand that confidential information must be revealed. Counselors consult with other professionals when in doubt as to the validity of an exception” (American Counseling Association, 2014, p. 7). According to this standard, confidentiality is void when the disclosure of information is necessary to prevent harm to clients or when laws require it, as is the case with the mandated reporting of child abuse. It also specifies that counselors should consult with other professionals if they are unsure as to whether or not a breach of confidentiality is appropriate.

The ACA Code of Ethics also addresses ethical record keeping practices as it relates to child abuse cases. Section B.6.h states: Counselors store records following termination of services to ensure reasonable future access, maintain records in accordance with federal and state laws and statutes such as licensure laws and policies governing records, and dispose of client records and other sensitive materials in a manner that protects client confidentiality. Counselors apply careful discretion and deliberation before destroying records that may be needed by a court of law, such as notes on child abuse, suicide, sexual harassment, or violence. (American Counseling Association, 2014, p. 8) Not only should counselors adhere to the overarching legal and ethical policies related to record keeping, but they must take extra precaution when handling documentation that may be needed in legal proceedings, such that related to child abuse.

Counselors should carefully consider the consequences of destroying these records and use their best judgment in deciding whether or not to do so. Additionally, the ACA Code of Ethics explains that counselors should protect the confidentiality of minor clients in accordance with laws, policies, and relevant ethical standards. Section B.5.a states: When counseling minor clients or adult clients who lack the capacity to give voluntary, informed consent, counselors protect the confidentiality of information received—in any medium—in the counseling relationship as specified by federal and state laws, written policies, and applicable ethical standards (American Counseling Association, 2014, p. 7). Because counselors must operate in accordance with state and federal laws, they should be aware of the laws specific to the state in which they are practicing. State Laws. While all 50 states have laws mandating healthcare professionals to report suspected child abuse, each state’s laws contain variations regarding what to report and how to do so.

Counselors must be aware of their state’s laws and procedures when deciding whether breaching confidentiality to file a report is warranted. In Arizona, child abuse is defined as “when a parent, guardian or custodian inflicts or allows the infliction of physical, sexual or emotional abuse, neglect, exploitation or abandonment” (Arizona Department of Child Safety, 2018, para. 2). According to Arizona Rev. Stat. § 13-3620: Any person who reasonably believes that a minor is or has been the victim of physical injury, abuse, child abuse, a reportable offense or neglect that appears to have been inflicted on the minor by other than accidental means or that is not explained by the available medical history as being accidental in nature, or who reasonably believes that there has been a denial or deprivation of necessary medical treatment or surgical care or nourishment with the intent to cause or allow the death of an infant who is protected under A.R.S. § 36-2281, shall immediately report or cause reports to be made of this information to a peace officer or to the Department of Child Safety (Arizona Department of Child Safety, 2018, para. 3). The law further specifies that counselors and other healthcare professionals are required to file a report if, over the course of treatment, they develop a reasonable belief that child abuse has occurred. Professionals who report suspected abuse are under no obligation to prove abuse has occurred but are required by law to file a report of any reasonable suspicion of maltreatment to a minor. If the suspected perpetrator is the child’s guardian, the report should be made to the police or the Department of Child Safety (DCS). If the child is not in the care of the suspected perpetrator, the report should be made only to the police.

When filing a report with DCS through the telephone hotline or online portal, clinicians will be asked to provide the following information: name, age, and gender of the child and family members; address, phone number(s), and/or directions to child’s home; parents’ place of employment; description of suspected abuse or neglect; and current condition of the child (Arizona Department of Child Safety, 2018). Individuals using the online portal will also be asked to provide their own name, professional affiliation, and contact information. Clinicians concerned about retaliatory actions on behalf of the perpetrator should be aware that, according to Rev. Stat. § 8-807, DCS will take necessary precautions to protect the identity and safety of the individual filing the report before releasing any information regarding the investigation to the public (Arizona Department of Child Safety, 2018). By law, counselors are not required to inform the child’s parents or guardians that a report is being filed. However, Peterson and Urquiza (1993) assert that it is often therapeutically advisable to do so in order to avoid feelings of suspicion, isolation, or betrayal.

When sharing this information, clinicians should inform the parents that precautions will be taken throughout the reporting and investigation process to avoid injury or emotional trauma to the child. If the parent is the suspected perpetrator, the clinician can provide the option for the parent to self-report in their presence. However, allowing the parent to self-report does not negate the therapist’s individual mandate to report the suspected abuse. Informing parents of a report is not advised when there is concern that sharing this information could lead the parent to harm to the child. Clinicians should be attentive to parent factors that could indicate danger to the child, such as appearing psychotic, having poor impulse control, having a history of violent behavior, having substance use issues, or being likely to flee (Peterson & Urquiza, 1993). Therapists should attempt to preserve rapport with parents by informing them of the situation when appropriate, but child welfare must always be the therapist’s top priority.

The decision to report. Despite the clear legal and ethical guidelines requiring professionals to report suspected abuse, approximately 40% of individuals mandated to report child maltreatment fail to do so at some point during their careers (Alvarez, Kenny, Donohue, & Carpin, 2004). To better understand why this occurs, Alvarez, Kenny, Donohue, & Carpin (2004) identified four major barriers that professionals encounter when deciding whether to not to file a report of suspected abuse. The first reason that professionals provided for not reporting was a lack of knowledge of both the signs of abuse, especially those of neglect, and reporting procedures. Participants in this study frequently shared that they chose not to report due to a lack of physical evidence. Several clinicians also indicated confusion surrounding mandated reporting requirements and agency-specific policies and procedures. Many also felt as though they were breaching confidentiality in filing a report without complete certainty that abuse had, in fact, taken place.

Based on these findings, clinicians should familiarize themselves with the signs of abuse, both physical and behavioral, and should seek out supervision or consultation to ensure that they understand reporting policies and procedures. If counselors are unsure as to whether a breach of confidentiality is warranted, they should seek advice from other mental health practitioners and/or legal professionals. The clinicians in this study also cited concern about negative consequences for the client as a reason for not reporting. They expressed fear that filing a report would cause further harm to the client, such as by disrupting an already unstable family structure or by placement of the child into a worse living environment. Clinicians also indicated a negative attitude towards child protective agencies as a barrier to reporting.

Many expressed concerns that state involvement would place the child at risk of experiencing additional harm due to delays in the investigation or a lack of follow-up. Several clinicians also shared their belief that child protection agencies “would not do anything”, even if they did file a report. (Alvarez, Kenny, Donohue, & Carpin, 2004, p. 566). While these concerns regarding client welfare are valid, clinicians are expected to practice in accordance with state and federal laws mandating the reporting of child abuse. Counselors should continue to advocate for their clients after filing a report to ensure that precautions are taken within the child protection system to protect them from injury or emotional trauma during investigative proceedings. Lastly, clinicians cited concern about negative consequences for themselves as a result of filing a report. Some of these concerns included a fear of physical or legal retaliation from the suspected perpetrator, a loss of rapport with the client or family, or not wanting to be involved in legal proceedings related to the case.

Additionally, clinicians may also struggle to acknowledge abuse within families with whom they have built trust and rapport. In case of legal proceedings, clinicians should keep accurate and detailed records of treatment and decision-making and should seek advice from other professionals if they are unsure as to whether confidentiality should be broken. Clinicians must always prioritize child welfare and should seek supervision if personal concerns become a barrier to doing so. In deciding whether to file a report of suspected child abuse, clinicians should familiarize themselves with state laws and agency policies and should be familiar with both physical and behavioral signs of abuse. They should consult with a supervisor, colleagues, and/or legal professionals if they are uncertain as to whether a breach of confidentiality is warranted. Clinicians should remember that child welfare supersedes confidentiality and that they do not need to prove that abuse or neglect as occurred, given that they have reasonable belief. Counselors must always prioritize child welfare and should advocate for their clients throughout the reporting and investigative process to prevent undue injury or emotional distress.

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