Metropolitan News-Enterprise


Tuesday, November 19, 2013


Page 1


C.A. Rejects Immunity for Distribution of Confidential Abuse Memo


By JUSTIN LEVINE, Staff Writer


A school counselor is not entitled to civil immunity for invasion of privacy after giving a father a confidential copy of a report which contained allegations that his wife had been abusing their children, the Fourth District Court of Appeal has ruled.

In a unanimous opinion written by Justice Cynthia Aaron of Div. One, the court held that the Child Abuse and Neglect Reporting Act under Penal Code, §11164 limits disclosure of abuse reports to select government agencies and that officials do not have discretion to provide the report to anyone outside of those agencies.

The case involved the divorced parents of two boys who lived with their mother and attended El Capitan High School in the Grossmont Union High School District. The boys informed school counselor Susan Saunders that their mother, Cuff Godfrey, had been verbally and physically abusive with them.

Abuse Report

Based on the boys’ allegations, Saunders prepared a “Suspected Child Abuse Report” in accordance with the Child Abuse and Neglect Reporting Act which mandates that school counselors report suspected child abuse or neglect to certain statutorily identified authorities. She sent her report to Child Welfare Services, which told her to contact a law enforcement officer who could take the boys into protective custody.

According to Saunders, after a “resource officer” at the high school refused to take the children into custody, she was advised to give a copy of her report to James Godfrey, the boys’ father, and allow him to take his children to the sheriff’s department.

Instead of informing a law enforcement officer, James Godfrey used Saunder’s report to file a protective order against his ex-wife and seek custody of his children.

Cuff Godfrey retained sole legal and physical custody of her sons, and then filed a complaint against Saunders and the school district for invasion of privacy.

San Diego Superior Court Judge Eddie Sturgeon determined that defendants had immunity for their actions and granted them summary judgment.

The Court of Appeal reversed.

Immunity Rejected

In explaining the reversal, Aaron wrote that Penal Code §11167.5(a) mandates that reports of known or suspected child abuse by school officials “shall be confidential and may be disclosed only as provided in subdivision (b)” which does not allow for its distribution to the children’s father. She also noted the fact that a violation of the statute’s confidentiality requirement carries a misdemeanor criminal penalty.

Aaron rejected defendants’ argument that Penal Code §11172(a) conferred immunity on them, writing:

“This statute provides limited immunity to a mandatory reporter for the act of making the actual report of known or suspected child abuse. In other words, a mandated reporter may not be sued for making a required or authorized report to an authorized agency. However, this provision clearly does not immunize a mandatory reporter’s conduct that does not comply with the strict confidentiality provisions of the statute.”

She further rejected arguments that defendants were entitled to immunity under Education Code §49076 which permits the release of “pupil records” to “[a]ppropriate persons in connection with an emergency if the knowledge of the information is necessary to protect the health or safety of a pupil or other persons.”

Not ‘Pupil Records’

Aaron wrote that “given the extreme confidentiality” that Suspected Child Abuse Reports are accorded under §11167.5, combined with the fact that any unsanctioned disclosure of such reports can subject one to criminal punishment, they cannot be considered a “pupil record” under the state’s Education Code.

Her opinion also held that the confidentiality mandate of the Child Abuse and Neglect Reporting Act is not discretionary, and therefore the defendants could not claim immunity under Government Code §820.2, which provides: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused”

The decision upheld Sturgeon’s ruling that plaintiff’s motion for summary judgment was untimely, holding that an opposition to the other party’s summary judgment motion does not operate as its own summary judgment motion for the opposing party.

“Conceptually and practically,” Aaron wrote, “these are two separate pleadings.”

The case is Cuff v. Grossmont Union High School District, D062278.


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