Overview of Child Protection in Indian Country

Instructions for Using the Handbook and CD

Index

Acknowledgements

This project was made possible by a contract (Contract No: 242-00-0058) from the Indian Health Service, Mental Health Program, Office of Public Health, 12300 Twinbrook Parkway, Suite 605, Rockville, MD 20852 Phone: (301) 443-1539 FAX: (301) 443-7623 with Jamie Davis, PhD, Project Officer, Janice S. Arthur, Contract Specialist and Jon Perez, PhD, Director, Division of Behavioral Health. The Indian Health Service and the Bureau of Indian Affairs provideed guidance and input into the development of the Handbook.

Child maltreatment is a community problem; no single agency, individual, or discipline has the necessary knowledge, skills, or resources to provide the assistance needed by abused and neglected children and their families. Child abuse and neglect is complex and multidimensional. No one service or intervention has been shown to prevent or treat child maltreatment effectively. Therefore, the expertise and resources of all agencies and professionals who work with children and families are needed if the community's prevention and treatment efforts are to be successful. To optimize the effectiveness of the multidisciplinary response to child maltreatment, it is important that all participants respect and preserve the distinct roles of each involved professional group while forging a functional team to address this complex problem.

Since the late 1980s and early 1990s there have been several laws passed to protect Indian children in Indian Country. This User’s Guide will outline the laws as well as provide an overview of child abuse and neglect and the tasks of developing and implementing a child protection team to further protect Indian children. Reports of child abuse and neglect have increased in Indian communities in the past 10 years. American Indian and Alaska Native children had the highest rates of victimization at 21.7 per 1,000 children of the same race or ethnicity (Children’s Bureau, DHHS, 2002). American Indian children accounted for 1.8% of all victims of child abuse and neglect in 2002 (See NCCAN website for references).

The major types of child maltreatment are: emotional abuse (psychological maltreatment), neglect, failure to thrive, physical abuse, and sexual abuse. There is not a consistent set of definitions for neglect, physical abuse, sexual abuse, or psychological maltreatment that is used consistently by all local, state, tribal and federal agencies or across the multiple disciplines that deal with this problem, such as law enforcement, medical, or child welfare. Not having a consistent set of definitions becomes problematic when one jurisdiction may have criminal penalties while another jurisdiction may not have codified those actions as criminal or do not have sufficient jurisdiction. What one discipline may perceive as harmful such as emotional abuse, may not be successfully prosecuted in court since cause and effect must be established.

Definitions of child maltreatment are provided which are generally agreeable as being standard. However it must be understood that definitions will vary, therefore operational definitions include the following, but are not limited to:

Each tribe must have an established procedure for reporting child abuse and neglect in Indian Country. Tribes may develop, through their own jurisdiction, tribal laws that can enhance Public Law 101-647 and 101-630 to provide more specific guidelines on reporting and who is mandated to report. In Public Law 101-647, the Crime Control Act of 1990, mandates that, “Personnel with knowledge or reasonable suspicion that a child was abused in Indian Country or that actions are being taken or will be taken that would reasonably be expected to result in the abuse of a child in Indian Country must immediately report such abuse or action to local child protective services or local law enforcement.” Public Law 280 covers tribes that are under state jurisdiction and are required to follow state law regarding who must report and who to report to.

Who is required to report?

Individuals hired in positions involving children are required by law to report any suspected child maltreatment. The law designates certain professionals but every individual (citizen) is required to report any suspected child abuse and neglect concern. Mandated reporters include the following professionals but are not limited to these positions:

How to report child abuse and/or neglect in Indian Country

Each tribe is required to have a protocol for reporting child abuse and neglect. Each BIA and IHS facility (agency, school, clinic, etc.) is also required to have an established protocol for reporting child abuse and neglect. If there is a question regarding what the protocol, the local law enforcement or the local Indian Child Welfare program should be contacted or one may call the BIA national child abuse hotline at 1-800-633-5155 to report.

A protocol is the procedure established by the tribal child protection agency as to how each report of suspected child abuse will be processed by the designated authorized agencies. The protocol will dictate who should receive such reports and the timeframe for responding to those reports. Tribes under state jurisdiction (P.L. 280) should follow the guidelines established by the state. Typically a tribe will establish a protocol that is supported by a tribal resolution. BIA and IHS should work with local tribes to establish reporting requirements that are in compliance with the federal laws and also meet the needs of local tribes and resources. Memorandums of Understanding (MOU) help to decrease conflicts when local tribes, state agencies, schools, child care facilities, medical facilities, and federal agencies (U.S. Attorney’s Office, FBI, IHS, BIA, etc.) have agreed on an established protocol. Having an established, published/written protocol eliminates many questions about how any single case should be handled since all cases would follow the same guidelines, providing consistency. Irregularities can occur when there is confusion about what the protocol is or when the established protocol is not followed consistently or when exceptions are made without consultation by key child protection personnel.

Making a report

It is important to emphasize that a report is required to be made when there is reasonable cause to believe that a child or adolescent has been abused or neglected or is in danger of being abused. A report of suspected abuse is only a request for an investigation and is not the actual investigation. The actual investigation is the lawful assessment by an authorized individual to determine if a harmful condition exists involving a minor and what emergency action should be taken for the safety of the minor.

In order for an investigation to be initiated from a report, it is important that as much information as possible be provided about the suspected harmful condition. Some agencies may have a priority system based on the age of the children, likelihood of immediate danger, frequency of the harmful events, or other criteria that may place some reports at a lower priority than others. The protocol agreed to by the child protection agencies (tribal, federal or state) would determine the priority of responses.

Receiving a report within Indian Country

Any tribal, federal, or local law enforcement agency or respective child protective services agency that receives a report alleging abuse shall determine how immediately it will initiate an investigation of such allegation and shall determine what immediate, appropriate steps are necessary to secure the safety and well-being of the child or children involved. Most agencies have a priority or assessment system which will determine the promptness of the investigations and the validity of the report. According to P.L.101-647, it states that "upon completion of the investigation of any report of alleged abuse in Indian Country that is made to a local law enforcement agency or local child protective services agency, such agency (BIA and IHS) shall inform appropriate officials of the other child protection agencies, and within 36 hours, prepare and submit a written report to the other agencies on such allegation and immediately notify the Federal Bureau of Investigation if the abuse occurred in Indian Country and involves an Indian child or the alleged abuser is an Indian."

If a tribe is under state jurisdiction (P.L.280), then the protocol would follow state law or if an agreement is in place (either written or verbal), that procedure would take precedent. Prompt action to secure the safety of the child should be the priority. Personnel of the Bureau of Indian Affairs and the Indian Health Service are required to follow P.L.101-647 guidelines. Federally recognized tribes under federal jurisdiction should have established protocols with procedures that comply with P.L.101-647. Assumed by this law is that written documentation will follow any report and that the designated agency will maintain files, collect data and provide follow up.

Is the name of the person who initiates a report disclosed?

According to federal law governing Indian Country, the identity of any person making a report within the boundaries of Indian Country shall not be disclosed without the consent of the individual, to any person other than a court of competent jurisdiction or an employee of an Indian tribe, a state or the federal government who may need to know the information in the performance of such employee’s duties.

What happens when the person who reported, questions the status of the report?

Confidentiality laws prohibit the release of information on specific cases. Mandated reporters may inquire about the procedures for cases and may seek a general status of the protocol used in investigations and prosecution; however it must be understood that confidentiality is important and that investigators and other child protection personnel are obligated to maintain confidentiality.

It may be increasingly frustrating for reporters of suspected child maltreatment to wonder if a child and/or children that they are concerned about, are being protected when no specific action is evident. Concerned citizens who report cases of child maltreatment must believe that their actions are valued. The level of confidence in the child protection system must not be underestimated by having non-responsive child protection team members, poorly conducted investigations, or unaccountability. Therefore, it is important that a balanced system of accountability and responsiveness by the Child Protection Team (CPT) be readily available to the community. One method of accountability could be annual reports to the public/community that would include, among other information the number of cases, number of prior reports on same cases and general disposition of cases. CPTs should promote professional development to ensure that child protection personnel skills are current for effective investigation, prosecution, safety issues, and family preservation.

What happens if a person fails to report?

Failure to immediately report the abuse of a child in Indian Country, or actions being taken that would reasonably be expected to result in the abuse of a child in Indian Country, to local child protective services or local law enforcement is a federal crime. Most states laws also require penalties for individuals who do not report child maltreatment. According to P.L.101-647, mandated reporters who fail to immediately report to local law enforcement or local child protective services agency shall be fined not more than $5,000 or imprisoned for not more than 6 months, or both. Any supervisor or person in a position of authority over a mandated reporter who inhibits or prevents that person from making a report can also be penalized.

It has been problematic for some programs such as elementary schools and pre-school programs to have a simple process for reporting since teachers and other school personnel may be instructed to inform supervisors and/or school or program administrators before initiating a report. In some cases, it may be difficult for religious or church officials to understand how important it is to report cases of abuse involving their membership. CPT members can assist programs in developing a protocol that is acceptable for those situations where monitoring the chain of supervision is important while allowing for a more straightforward, mandatory reporting process. Involving medical and educational facilities in an MOU would decrease the potential for miscommunication.

Tribal employment is impacted by the limited number of applicants when the results of background investigations eliminate individuals from employment considerations due to their prior criminal behavior and/or conviction. CPTs can develop strategies for addressing how adolescents and young adults in their communities may become more aware of how criminal offenses can seriously impede future employment opportunities, especially in tribal communities where many positions involve contact with minor children or vulnerable populations.

Child Protection Teams (CPTs) in Indian Country vary. Most attempt to be a cooperative effort of community service delivery agencies with the purpose of protecting Indian children and preventing abuse and neglect in the future. In cases where Indian children have been found to be abused or neglected, the CPT seeks to provide protective services to immediately secure the child’s safety and health. Once the safety of the child is secured, the CPT can facilitate the development and implementation of a plan to promote the short - and long-term well - being of the child and the incorporation of appropriate family members in the care of the child. In addition, CPTs are to promote prevention of child abuse and neglect by acting as advocates for services and programs for children and assisting with other agencies to establish a unified response to prevent of child maltreatment.

Child Protection Teams are technical and advisory in nature and are not intended to take the place of any agency in the community that provides services to children. They are designed to promote coordination, cooperation, communication, and consistency among community agencies in the protection of child abuse and neglect in Indian communities and to promote prevention efforts. The essence of a Child Protection Team is to be the network of service providers that is the safety net for any child that may be harmed. In an ideal situation, there can be more than one CPT in a community made up of the same agencies. The first tier CPT would be at the administrative level addressing agency policies and procedures and community/tribal responses, and the second tier CPT would address cases with a focus on direct services to children and follow-up on recommendations and services.

There are federal agencies that participate in similar fashion to a CPT that address policies and procedures at the national level affecting child protection concerns (Federal CPT). For more information about this team or any CPT you can contact Ramona Williams.

Agency membership should reflect the local/tribal agencies that respond within the child protection network. Child protection teams should have a core membership. It is important to emphasize that the commitment to a child protection team is the commitment from agencies and not just an individual who is from a particular agency. When an agency is a member of the child protection team that should reflect a higher level of involvement than when a single individual is involved in the CPT from an agency.

Confidentiality in Child Protection Teams

Maintaining confidentiality is primary to any CPT. The level of confidentiality is a direct consequence of the level of confidence and professionalism that each person has in their team members. The intent of confidentiality is to maintain a professional arena that safeguards sensitive and/or critical information about families or individuals that may cause harm or create difficulty, and to limit the amount of information available to the public. Maintaining confidentiality is a process to hold individuals accountable and responsible about sensitive and/or critical information they have available to them about child abuse and neglect cases.

Confidentiality concerns are a major barrier to inter-agency cooperation. It should be determined in the CPT policies and procedures the extent of information necessary for certain agencies to provide services for families. Information should be shared on a “need to know” basis only and any personal contributions to case discussions should not violate the agency or professional ethical guidelines. Confidentiality shall be maintained and the tribal code or relevant federal law will be the basis for any legal action required in response to a child abuse and/or neglect referral. Each CPT member should have an orientation and training as to their role and responsibility with an emphasis on confidentiality.

Each CPT member must sign a Confidentiality Agreement prior to serving on the CPT. Many CPTs include the confidentiality statement as part of the sign-in sheet for each meeting. This is a regular reminder to all who attend that confidentiality is in place and will be mandated. It is a record that all participants will abide by the rules governing confidentiality in that jurisdiction.

Duties of the CPT