Appeals Court: Social Workers Who Abuse Are Not Mandated To Report The Incidents

Requiring a social worker who abuses a child to report that abuse under the Child Protection Law violates the social worker’s right against self-incrimination, the Michigan Court of Appeals has ruled, addressing the issue for the first time.

In IS v Crestwood School District, et al. (Docket No. 368021), the plaintiff alleged the defendant, Ryan Aboulhosn, who is a social worker, violated the Child Protection Law (CPL) (MCL 722.621, et seq.). The plaintiff specifically alleged the defendant violated MCL 722.623(1)(a) because, under this section of the statute, he did not report his own abuse of the plaintiff despite being “a mandatory reporter” who had direct knowledge that the plaintiff was being sexually abused. The Wayne County Circuit Court granted summary disposition to the defendant. The plaintiff appealed.

The Court of Appeals affirmed in part, reversed in part and remanded the case.

“Whether the CPL requires a mandatory reporter who abuses a child to report that abuse is an issue of first impression in Michigan,” the Court of Appeals said. “Yet, it is immediately apparent that such a requirement would violate the Fifth Amendment to the United States Constitution and the Michigan Constitution, Const 1963, art 1, § 17, both of which include the guarantee that ‘[n]o person … shall be compelled in any criminal case to be a witness against himself ….’”

Judge Michael J. Kelly, Judge Adrienne N. Young and Judge Kathleen A. Feeney were on the panel that issued the published opinion.

Background

Defendant-Aboulhosn worked as a social worker with the Crestwood School District. The plaintiff, IS, was a student attending Crestwood High School. The defendant was the plaintiff’s social worker at the school. The defendant worked with Tiffany Owens, a special education teacher, to develop an individual education plan (IEP) for the plaintiff because the plaintiff had been diagnosed with a lower intelligence quotient (IQ), epilepsy and attention-deficit hyperactivity disorder. According to the complaint, on four occasions in October 2019, the defendant followed the plaintiff from Owens’ classroom to a bathroom and sexually assaulted the plaintiff.

The allegations were reported to the police. The police conducted interviews with the defendant, the plaintiff and Owens. The police also reviewed a sign-out sheet for Owens’ classroom, watched surveillance videos of the bathroom where the assaults supposedly occurred and examined the plaintiff’s attendance records. At the time, the plaintiff had reported the assaults took place during the third hour and, as a result, police only watched surveillance video for that timeframe. Based on the investigation, the police determined the plaintiff and the defendant were never in the bathroom at the same time. Therefore, no criminal charges were filed against the defendant.

The plaintiff filed this action in 2022, alleging negligence, gross negligence, assault and battery, negligent infliction of emotional distress and intentional infliction of emotional distress. In addition, the plaintiff claimed the defendant violated the CPL, as well as the Michigan Civil Rights Act (MCL 37.2101 et seq.)

The defendant filed a motion for summary disposition, arguing there were no genuine issues of material fact because the plaintiff’s version of events was contradicted by the record. He also asserted the CPL claim should be dismissed because the statute did not create a duty for an abuser to self-report.

In response, the plaintiff argued that his testimony alleging he was sexually abused by the defendant was sufficient to create a genuine issue of material fact. The plaintiff also asserted the plain language of the CPL permits a claim against an abuser for failing to report their own abuse of a child.

The trial court granted summary disposition on all the claims against the defendant. The plaintiff filed a motion for reconsideration, which the trial court denied. The plaintiff appealed.

Self-Reporting Violates Constitution 

In its opinion, the Court of Appeals first addressed the alleged CPL violation.

“The CPL imposes a duty on certain listed professionals to report suspected child abuse or neglect,” the Court of Appeals said. “MCL 722.623(1)(a), in relevant part, states: ‘A … social worker … who has reasonable cause to suspect child abuse or child neglect shall make an immediate report to centralized intake by telephone, or, if available, through the online reporting system, of the suspected child abuse or child neglect.’”

In addition, MCL 722.633(1) says: “A person who is required by this act to report an instance of suspected child abuse or neglect and who fails to do so is civilly liable for the damages proximately caused by the failure,” the Court of Appeals noted.

According to the Court of Appeals, “requiring a mandatory reporter who abuses a child to report that abuse would clearly incriminate the mandatory reporter and subject him or her to criminal prosecution. As a result, requiring such a disclosure falls foul of the constitutional privilege against self-incrimination. Thus, to the extent that MCL 722.623(1)(a) compels such a disclosure, it is unconstitutional.”

The Court of Appeals said its conclusion was supported by Kassey S v City of Turlock, 212 Cal App 4th 1276; 151 Cal Rptr 3d 714 (2013). “In that case, the court addressed whether California’s version of the CPL imposed a duty on a mandatory reporter who abused a child to report that abuse. … The court in Kassey concluded that it did not, reasoning that such an imposition ‘would require the mandated reporter to forfeit his or her Fifth Amendment privilege against self-incrimination.’ … The court explained: … Requiring a mandated reporter to report his or her own acts of child abuse would amount to providing the state with evidence of that person’s criminal acts, presenting a substantial and real hazard of criminal prosecution. For these reasons, [the plaintiff’s] proffered interpretation [of the child protective statute], conflicts with the privilege against self-incrimination. We will not interpret a statute in a manner that makes it unconstitutional. … Therefore, [under the child protective statute], [the defendant] was not required to report his own sexual assaults. … We find the reasoning in Kassey to be persuasive and adopt it as our own.”

Accordingly, the Court of Appeals concluded: “[T]o the extent that plain language of MCL 722.623(1)(a) requires a mandatory reporter who abuses a child to self-report his or her own abuse, we conclude that MCL 722.623(1)(a) is unconstitutional. As a result, plaintiff cannot maintain a claim for relief against [the defendant] based upon MCL 722.623(1)(a). The trial court’s dismissal of plaintiff’s claim that [the defendant] violated the CPL, therefore, was proper.”

Other Claims

Next, the Court of Appeals looked at the plaintiff’s gross negligence claim, finding that summary disposition was appropriate.

“Here, the gravamen of plaintiff’s claim against [the defendant] is that he intentionally followed [the plaintiff] into a bathroom on four occasions and sexually assaulted him,” the Court of Appeals wrote. “Claims of assault and battery require proof of intent to injure. … The same conduct forms the basis for plaintiff’s gross negligence claim. … [W]e conclude that no amount of artful pleading can transform the claim for intentional misconduct by [the defendant] into a claim for gross negligence. Accordingly, the trial court did not err by summarily dismissing the gross negligence claim against [the defendant].”

However, the Court of Appeals found the trial court erroneously dismissed the plaintiff’s remaining claims. Although the defendant directed the trial court “to documentary evidence and testimony that very strongly suggest[ed] [the plaintiff’s] allegations of abuse lack[ed] credibility, it is the duty of the trier of fact to evaluate his credibility and resolve the factual disputes between IS’s testimony and the evidence presented by [the defendant],” the appeals court said. “The [trial] court’s decision to grant summary disposition because it found [the defendant’s] evidence to be more credible was improper. Accordingly, reversal is required.”

In conclusion, “[w]e affirm the dismissal of plaintiff’s claims for violation of the CPL and gross negligence, but reverse the court’s dismissal of plaintiff’s remaining claims and remand for further proceedings,” the Court of Appeals held.