42 U.S.C. §5102(3) and the Maine Mandatory Child Abuse Reporting Act

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) JO'.:>El'II E. BHJ:NN.-\N ATTORNL Y GI NI H/\L STATE OF MAINE DEPAHTMENT OF THE ArTOHNEY GENERAL A UUUSTA, MAINE 04333 September 1, 1978 RICHARD S. COIIEN JOHN M. R. PATEHSON DONALD G. Al,EXANDEH DEPUTY ATTORNEYS GENERAL Official Opinion #78-HS-17 Mr. John Tretton Department of Health, Education and Welfare Office of Child Development J.F.K. Federal Building Government Center Boston, Massachusetts 02203 RE: 42 U.S.C. 5102(3) Dear Mr. Tretton: In your letter dated August 1, 1978, jou apprised the State of Maine Department of Human Services that 42 U.S.C. 5102(3) had been amended to include the term sexual "exploitation". You specifically requested an opinion addressing the question whether or not the State of Maine Mandatory Child Abuse Reporting Act (22 M.R.S.A. 3851, et~-) included within its applicable defini- tion coverage for sexual exploitation. The reason for the request was to obtain assurance by your office that the Maine law was in conformance with the Federal law so as to enable the State of Maine to continue to receive Federal funds regarding the reporting of child abuse and neglect. 22 M.R.S.A. §3851, et~- does include within its parameters the term sexual exploitation although not specifically mentioned therein. 22 M.R.S.A. §3852, which defines "Child abuse and neglect" for purposes of the Child Protective law, provides in pertinent part: "Child abuse and neglect" means the physical or mental injury, sexual nbuse, negligent treatment or mnltrcatmcnt of a child under the age of 18 years of age by a person ,"110 is responsible for the child's welfare under circumstances which indicate that the child's health or welfare is harmed or thrc3tened thereby. .Joh,n Tretton -2- September 1, 1978 ,, .. The terms of this definition, particularly "neglicent or 1altreatment 11 and "child's health or welfare," are broad in scope. £he preceding quoted words evidence a legislative intent to include all types of harm, whether threatened or accomplished, to a child's health or welfare that occur as a result of acts or omissions by the person responsible for the child. Implicit in the sexual exploitation of a child is i harm to, or at least a threat to, the child's health or welfare.!_ Sexual exploitation of a child is clearly within the definition of "child abuse and neglect" applicable to the reporting law. Sexual exploitation of a child is also determined by our office to constitute negligent treatment or maltreatment of a child so as to fit within the umbrella of 22 M.R.S.A. § 3852. Sexual exploitation is treated as a form of sex abuse by our Child Protective Services. Approved Policy Statement #52, attached hereto, will further amplify this State's policy concerning this subject matter. For the above rasons, the term sexual "exploitation" is included in the applicable definition of 22 M.R.S.A. § 3851, et seq. ~◄ l VT This is to certify authorized to sign Attorney General. JES/ec DEPARTMENT OF THE ATTORNEY GENERAL BY: ~'A~ C t2'&d ames E. Smith Assistant Attorney General Senior Attorney: Human Services Section that Assistant Attorney General James E. Smith is opinions on behalf of the Department of the DONALD G. ALEXANDE~- Depu ty Attorney General 1/ Explicitly, it is significant to note that each type of exploitive conduct specified in the definition of "sexual abuse" in Sep. 104 (2) of P.L. 95-266, including "obscene or pornographic photography, filming, or depiction of children for commercial purposes," is now criminal conduct under Maine law. DAVID E. SMITH COMMISSIONER STATE OF HAINE DEPARTMENT OF HUMAN SERVICES AUGUSTA, HAINE 04333 July 28, 1977 TO: ALL APPROVED POLICY STATEMENT HOLDERS F Ro M : ROUERT O. WfLLIE, ACT :G JG ) IBEC'TOR, B:JRE.t\U OF RESOURCE TJEVELO PYIE.~Ir s u B 1 E c T : A p p r o v e d Po I i c y S t a t em e n t No ( s ) s2* CCMPL~T~ R~VISIGN TC APS 52 Attached to this memorandum please find approved policy statement release(s) as described below: .§__U BJ F. CT : Child Protective Services CONTENT: Policy on chilJ protection EFFECTIVE DATE(S): July l 1977 OBSOLETED MATERIAL(S): · APS 52 dated 12/19/73, effective 11/1/73, APS 45 Retun1 to Own Families, effective 3/1/73 and revised 4/1/76. COMMENTS: Complete revisio:1 of basic child protection policy, includ:ing after hours service, anJ incorporatinp.; APS 45. Child Protective Services OBJECTIVES OF DIRECT SERVICE APS#52 Revised 7/1/77 1. To determine if abuse, neglect, and/or exploitation exists to an unacceptable degree, or whether a child is at high risk. To accomplish this objective, four steps are necessary: a. Provision for receipt of reports/referrals b. Intake screening c. Intake assessment d. Intake study 2. To reduce jeopardy to children without removing them from the home when the factors causing jeopardy appear to be correctable and the children can be safely maintained in the home. 3. To legally remove children from the home by petitioning the court when factors causing jeopardy do not appear correctable, and the children cannot be safely maintained in their own home. 4. To assist the family in rehabilitation so that .children in the custody of the Department may be safely returned to their own home. 5. To reduce risk to children who are not in _jeopardy when it appears that the factors causing risk are likely to result in jeopardy if not corrected. -4- --'child Protective Servi'ces APS#52 Revised 7/1/77 ) KEY ,ERMS AND CONCEPTS Parents - means parents or caretaker responsible for the well-being of a ch1ld. Protection is an action which guards or shields another from loss, injury, or danger. As a social service function, it connotes intervention in a life situation in which children are exposed to conditions jeopardizing their health, welfare, or morals. When a family has become dysfunctional to the point that it cannot protect its children from harm or threatened harm, then protective services are necessary. Jeopardy is a situation in which there is danger of harm. A child is in jeopardy when his physical or mental health is harmed or threatened with harm by acts or omissions of his parents or other persons responsible for his well-being. The degree of jeopardy must be evaluated in its context to determine the type and level of intervention that may be required to protect the child. The following conditions, separately or collectively, indicate jeopardy: Physical abuse - injury inflicted or allowed to be inflicted, including the use of excessive corporal punishment. Sexual abuse/exploitation - a sexual offense committed or al lowed to be committed. 3. Emotional abuse - resulting in clinically observable evidence of neurotic, psychotic, or adjustment reaction behavior. 4. Neglect - failure to adequately provide, which results in: a. Food - danger of malnutrition, nutritional deficiencies, food poisoning, and/or disease. b. Clothing - undue exposure to the elements, or harm to the body. c. Shelter - undue exposure to the elements, or hazards of fire, injury, and/or disease. d. Supervision - imminent danger, considering child's age, physical condition, or mental capacity. e. Education - truancy or deprivation of prescribed specialized services. f. Health care - clear danger of serious health impairment, due to negligence rather than religious convictions. g. Emotional - clinically observable evidence of neurotic, psychotic, or adjustment reaction behaviors. (