Legal Issues
What if caseworkers remove a child from the parent’s or guardian’s custody?
Your help may be needed in the judicial proceedings. Parents are entitled to a hearing to contest the removal of a child from their custody. At that time any party to the hearing can subpoena (call to testify) school personnel to give testimony about what they’ve seen. As a school staffer who has contact with the child, you may be called to testify in front of the parents and the children in a court of law, whether you reported the situation to the hotline or not.
What is a subpoena and what happens if I receive one?
A subpoena is a legal document issued by a court that requires you to testify
at a certain day and time in a specific case. It is very rare for school
personnel to be called to testify, but it can occur.
Any UFT member who receives a subpoena can consult a lawyer at the DOE
Office of Legal Services via telephone—1-212-374-6888. This does
not mean the board will supply legal representation. The board lawyer should
give you information about the procedures and answer your questions concerning
the subpoena. Get the name of this attorney and, if you are not satisfied,
call your chapter leader or district representative immediately. The UFT
will follow up to make sure the board helps you.
Your court appearance counts as a non-attendance day (i.e. you do not lose
any pay). The UFT is urging that separate witness rooms be provided for
you and the child’s parents or guardians. We’re trying to have staff
members put on phone alert (meaning that you will be called only if it’s
certain that you’re needed in court that day).
How much time will the process take?
This varies from case to case. In most situations it will take only the time you spend consulting other staff and reporting the case to the principal or the school’s designated reporter. Other times, it may take longer—for example, in preparing the written report and answering a caseworker’s questions. In very rare instances it may require testifying in court.
What is my legal position if the report I make is unfounded?
You are immune from liability (that is, protected from civil, criminal or
disciplinary action) if you participated in good faith in any activity relating
to the reporting of suspected child abuse. This includes cooperating with
caseworkers in their investigation.
Good faith is presumed as long as you were discharging the responsibilities
that fall within the scope of your employment. If you report in good faith,
neither the government nor the DOE can press charges and a judge will dismiss
any civil lawsuit brought against you for this reason. The only time you’d
run into trouble is if you act maliciously, recklessly or with gross negligence.
Who will represent me if a parent sues over a report of
child abuse?
Under state law, the DOE is required to protect an employee if some adverse action occurs while he or she is acting within the “scope of his/her employment.” The UFT won its fight to have the board automatically represent you in a civil suit brought for an unfounded report, so long as you have met your responsibility under the reporting law.
What if I am accused of anything relating to child abuse reporting?
Once a member was accused of defamation of character for filing a report;
a judge dismissed the case. If anything like that happens, call your district
representative immediately.
If it involves a situation in which the DOE believes it cannot represent
you, your union offers a benefit that should provide protection—the
NYSUT Legal Defense Fund. It reimburses you for up to $25,000 in legal
fees that you expend to defend yourself in a job-related lawsuit. You are
covered under the NYSUT plan as long as you are not found liable (guilty
of any wrongdoing or negligence).
And in child abuse reporting situations, that means the only way you would
be found liable is if you failed to report a situation where you really suspected
child abuse or if you acted maliciously or recklessly when you made a report.
What if a parent or child accuses me of harming a child?
Who defends me?
Call your district representative and your borough office to report the allegation immediately. If the parent accuses you in retaliation after you have made a good faith report of child abuse, the DOE will defend you. But if it becomes a criminal matter, your district representative will direct your appeal for help through the proper union channels; the UFT provides members charged with school-related crimes with legal counsel through arraignment.