2.2Reporting Suspected Child Abuse or Child Neglect

Any person with reasonable cause to suspect child abuse or child neglect may report the suspected child abuse or child neglect to the Department of Health and Human Services (DHHS) or a law enforcement agency. MCL 722.624. However, if the person suspecting the child abuse or child neglect is listed as a mandatory reporter under MCL 722.623(1), the person must report the suspected child abuse or child neglect. MCL 722.623(1).

The DHHS will not investigate allegations of parental substance abuse if that is the only allegation made. DHHS’s Children Protective Services Manual (PSM), CPS Intake - Special Cases PSM 712-6, p 15.¹ Rather, “[t]he complaint must include an allegation of child abuse and/or neglect as a result of the substance use to be appropriate for investigation[, unless the] complaint alleg[es] that methamphetamine is being smoked in a home where children reside[.]” CPS Intake - Special Cases PSM 712-6, supra at p 15.

“A complaint in which the only allegation involves either a parent providing home school instruction or a child failing to attend school is not [a] sufficient basis for suspecting child neglect.” CPS Intake - Special Cases PSM 712-6, supra at p 14. However, “[a] complaint of alleged child abuse or neglect that also includes an allegation of a child’s non-attendance at school is appropriate for investigation[.]” Id.

The DHHS will not investigate complaints that contain only allegations of domestic violence. CPS Intake - Special Cases PSM 712-6, supra at p 6. To be accepted for investigation, a complaint must “include information indicating the [domestic violence] has resulted in harm or threatened harm to the child.”² Id. In cases involving domestic violence, the presence of any of the following factors may indicate threatened harm to a child:

•“A weapon was used or threatened to be used in the [domestic violence] incident.

•An animal has been deliberately injured or killed by the perpetrator.

•A parent or other adult is found in the home in violation of a child protection court order or personal protection order.

•There are reported behavioral changes in the child (for example, a child’s teacher describes that the child used to be an involved and highly functioning student and now is withdrawn, doing poorly in coursework, or acting out with violence).

•Reported increase in frequency or severity of [domestic violence].

•Threats of violence against the child.” CPS Intake - Special Cases PSM 712-6, supra at p 6.

A.Mandatory Reporters of Suspected Abuse or Neglect

MCL 722.623(1) requires the following individuals to immediately report suspected child abuse or child neglect if he or she has reasonable cause to suspect that a child is being abused or neglected:

•physicians;

•dentists;

•physician’s assistants;

•registered dental hygienists;

•medical examiners;

•nurses;

•persons licensed to provide emergency medical care;

•audiologists;

•psychologists;

•marriage and family therapists;

•licensed professional counselors;

•social workers;

•licensed master’s social workers;

•licensed bachelor’s social workers;

•registered social service technicians;

•social service technicians;

•Friend of the Court (FOC) employees working in a professional capacity in any FOC office;

•school administrators;

•school counselors or teachers;

•law enforcement officers;

•members of the clergy;³ 

•regulated child care providers;

•any of the following DHHS employees:

“(i) Eligibility specialist.

(ii) Family independence manager.

(iii) Family independence specialist.

(iv) Social services specialist.

(v) Social work specialist.

(vi) Social work specialist manager.

(vii) Welfare services specialist[;]” and

•“[a]ny employee of an organization or entity that, as a result of federal funding statutes, regulations, or contracts, would be prohibited from reporting in the absence of a state mandate or court order.”

Note: “[MCL 330.1707⁴] does not relieve a mental health professional from his or her duty to report suspected child abuse or neglect under . . . MCL 722.623 . . . .” MCL 330.1707(5).

Hospitals, pharmacies, and physicians are also required to report injuries caused by violence or a weapon to local law enforcement under MCL 750.411.

1.Time Requirements for Reporting and Required Content of Written Report

A mandatory reporter “who has reasonable cause to suspect child abuse or child neglect shall make an immediate report to centralized intake^[5] by telephone, or, if available, through the online reporting system,^[6] of the suspected child abuse or child neglect.” MCL 722.623(1)(a). “Within 72 hours after making an oral report by telephone to centralized intake, the reporting person shall file a written report as required in [the Child Protection Law]. If the immediate report has been made using the online reporting system and that report includes the information required in a written report under [MCL 722.623(2)], that report is considered a written report for the purposes of this section and no additional written report is required.”⁷ MCL 722.623(1)(a).

Note: “If the reporting person is a member of the staff of a hospital, agency, or school, the reporting person shall notify the person in charge of the hospital, agency, or school of his or her finding and that the report has been made, and shall make a copy of the written or electronic report available to the person in charge.”⁸ MCL 722.623(1)(a). “One report from a hospital, agency, or school is adequate to meet the reporting requirement.” Id. 

MCL 722.623(2) requires “[t]he written report or a report made using the online reporting system [to] contain the name of the child and a description of the child abuse or child neglect[,] [and] [i]f possible, . . . the names and addresses of the child’s parents, the child’s guardian, the persons with whom the child resides, and the child’s age[,] [as well as] . . . other information available to the reporting person that might establish the cause of the child abuse or child neglect, and the manner in which the child abuse or child neglect occurred.”

Note: “The [DHHS] shall inform the reporting person of the required contents of the written report at the time the oral report is made by the reporting person.” MCL 722.623(3).

“The written report . . . shall be mailed or otherwise transmitted to centralized intake.” MCL 722.623(4).

2.Duty to Report Is Based on Identity of Alleged Perpetrator

The imposition of a duty to report suspected child abuse or child neglect under MCL 722.623(1)(a) is based on the type of relationship between the child and the perpetrator rather than on the occurrence of the alleged abuse or neglect. Doe v Doe (Doe I) (On Remand), 289 Mich App 211, 216 (2010). Thus, MCL 722.623(1)(a) imposes a duty to report only if the alleged perpetrator is the “parent, legal guardian, teacher, teacher’s aide, clergyman ‘or any other person responsible for the child’s health or welfare,’ including a ‘nonparent adult,’ as those terms are defined by [MCL 722.622(cc)⁹] and [MCL 722.622(aa)¹⁰].”¹¹ Doe I, 289 Mich App at 216 (an ambulance driver was not required to report suspected child abuse under MCL 722.623(1)(a) where he suspected his partner had sexually molested a child being transported in their ambulance).

3.Privileges Do Not Excuse Mandatory Reports of Suspected Abuse or Neglect

“Any legally recognized privileged communication except that between attorney and client or that made to a member of the clergy in his or her professional character in a confession or similarly confidential communication is abrogated and shall not constitute grounds for excusing a report otherwise required to be made . . . pursuant to [the Child Protection Law].” MCL 722.631.

Note: “[MCL 722.631] does not relieve a member of the clergy from reporting suspected child abuse or child neglect under [MCL 722.623] if that member of the clergy receives information concerning suspected child abuse or child neglect while acting in any other capacity listed under [MCL 722.623].” MCL 722.631.

“[A] communication [between a member of the clergy and a church member] [was] within the meaning of ‘similarly confidential communication’ when the church member d[id] not make an admission, but ha[d] a similar expectation that the information [would] be kept private and secret.” People v Prominski, 302 Mich App 327, 328, 336-337 (2013) (where the parishioner “went to [her pastor] ‘for guidance[ and] advice’” to discuss “her concerns that her husband was abusing her daughters” and “‘expected that the conversation be kept private[,]’” the parishioner’s communication with the pastor was a confidential communication as contemplated by MCL 722.631, and the pastor was not required to report the suspected child abuse under the mandatory reporting statute, MCL 722.623(1)(a)).

4.Child Suspected of Abuse or Neglect Taken to Hospital

“If a child suspected of being abused or neglected is admitted to a hospital or brought to a hospital for outpatient services and the attending physician determines that the release of the child would endanger the child’s health or welfare, the attending physician shall notify the person in charge and the [DHHS].” MCL 722.626(1).

Note: “When a child suspected of being an abused or neglected child is seen by a physician, the physician shall make the necessary examinations, which may include physical examinations, x-rays, photographs, laboratory studies, and other pertinent studies.” MCL 722.626(2). “The physician’s written report to the [DHHS] shall contain summaries of the evaluation, including medical test results.”¹² Id.

The person in charge may keep the child in protective custody until the court’s next regular business day. MCL 722.626(1). Once notified, the court must do one of the following:

(1) order that the child remain in the hospital or some other suitable place pending a preliminary hearing under MCL 712A.14.¹³ 

(2) order that the child be released to the child’s parent, guardian, or custodian. MCL 722.626(1).

5.Child Surrendered Under Safe Delivery of Newborns Law

The mandatory reporting requirements contained in MCL 722.623 of the Child Protection Law do not apply to a child surrendered to an emergency service provider under the Safe Delivery of Newborns Law. MCL 712.2(2).

Note: “A hospital that takes a newborn into temporary custody under [the Safe Delivery of Newborns Law] shall have the newborn examined by a physician.” MCL 712.5(2). If the examining physician determines that there is reason to suspect the newborn experienced neglect or abuse (other than the parent surrendering the child to an emergency service provider), or if the examining physician believes the child is not a newborn, the mandatory reporting requirements of MCL 722.623(1) require the examining physician to immediately report the suspected child abuse to centralized intake.¹⁴ MCL 712.5(2); MCL 722.623(1).

6.Failure to Report

A mandatory reporter who fails to report suspected child abuse or neglect is “civilly liable for the damages proximately caused by the failure.” MCL 722.633(1). However, a mandatory reporter’s civil liability under MCL 722.633(1), is limited to “claims for damages by the identified abused child about whom no report was made[,]” and “only for ‘damages proximately caused by the failure [to report abuse].’” Marcelletti v Bathani, 198 Mich App 655, 659, 662 (1993) (defendant-physician’s liability did not extend to an infant injured at the hands of his babysitter where the defendant-physician did not treat the injured infant but a different child injured by the same babysitter, and the defendant-physician’s failure to report suspected child abuse of the other child was not the proximate cause of the harm suffered by the infant in the instant case).

In addition, a mandatory reporter who fails to report suspected child abuse or neglect and “who knowingly fails to do so is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.” MCL 722.633(2).

A mandatory reporter’s failure to report suspected child abuse or neglect may also result in licensing or certification sanctions. Becker-Witt v Bd of Examiners of Social Workers, 256 Mich App 359, 362-364 (2003) (Court of Appeals upheld an administrative law judge’s (ALJ) revocation of a social worker’s professional license for failure to comply with MCL 722.623(1)).

“While the mandatory reporting provision [of MCL 722.633(1)] imposes liability when an individual named in the statute fails to report suspected abuse or neglect, that liability is limited by governmental immunity[;]”¹⁵ thus, when reading the mandatory reporting statute, MCL 722.633(1), together with the governmental immunity statute, MCL 691.1407, “[i]t follows that, in order for [the mandatory reporter] to be liable [for failing to report suspected child abuse or neglect] under [MCL 722.633(1)], [the mandatory reporter’s] conduct must [be] grossly negligent and the proximate cause of [the alleged harm].” Jones v Bitner, 300 Mich App 65, 68, 77 (2013) (“[the] plaintiff’s claim [against the defendant-police officer for failing to report suspected neglect] [was] barred by [governmental] immunity” where “[the] defendant[-police officer’s] alleged failure to report [knowing that the child’s mother illegally distributed drugs from the child’s home and in the child’s presence] could not have been the proximate cause of [the child’s] death” when the court record showed that “only [the child’s mother’s] acts or omissions were the proximate cause of the [child’s] death”).¹⁶

7.Constitutionality of Mandatory Reporting Law

In People v Cavaiani, 172 Mich App 706, 711-713 (1988), the Court of Appeals found that the mandatory reporting requirement under MCL 722.623(1) was not overbroad:

“[The] [d]efendant[-psychologist] [] claims . . . that the Child Protection Law, MCL 722.621 et seq., is unconstitutionally overbroad because it violates [the] defendant[-psychologist’s] First Amendment rights to associate in legal endeavors and invades the privacy of the family and those in association to cure private family problems.

* * *

In the context of a family, [MCL 722.623] invades its privacy to the extent that the family members’ collective desire to seek treatment for the offender and risk the continued abuse of the victim rather than initiating criminal proceedings may not be honored. However, we do not believe that this invasion constitutes a constitutionally impermissible violation of a family’s First Amendment right of privacy. A family does not have a protected First Amendment right to undertake a course of action which may do little or nothing to protect the child victim from continued abuse.

* * *

Further, a person generally lacks standing to challenge overbreadth where his [or her] own conduct is clearly within the contemplation of the statute. This is so even where there is some marginal application which might infringe on First Amendment activities. In this case, the [9-year-old] victim told [the] defendant[-psychologist], and the victim’s father did not deny, that the abuse occurred. Therefore, [the] defendant[-psychologist] had more than a ‘reasonable suspicion’ of its occurrence.”

The Court of Appeals also found in Cavaiani, 172 Mich App at 713-715, that the mandatory reporting requirement under MCL 722.623(1) was not vague:

“[The] [d]efendant[-psychologist] [] claims that the Child Protection Law is void for vagueness because it offers no reasonably precise standard to those charged with adhering to or enforcing the law. [The] [d]efendant[-psychologist] contends that the phrase ‘reasonable cause to suspect’ is not clearly defined and does not give him fair notice of what conduct the statute proscribes.

* * *

[The Court of Appeals] find[s] that the words ‘reasonable cause to suspect’ speak for themselves and provide fair notice of the conduct expected in reporting suspected child abuse. Based upon the fact that [the] defendant[-psychologist] was told by his patient, the [9-year-old] victim, that her father was fondling her breasts, the [MCL 722.623] reporting provisions are not vague.”

The Court of Appeals further found in Cavaiani, 172 Mich App at 716, that the mandatory reporting requirement under MCL 722.623(1) did not violate the defendant-psychologist’s Fourth Amendment right to privacy from unreasonable seizure of oral evidence where there was “no governmental eavesdropping or intrusion or electronic surveillance [] involved[,]” and that “[because the] defendant[-psychologist] is not an agent of the government, [] any information a patient chooses to divulge to him is not protected by the Fifth Amendment.”

In addition, public policy or due process of law is not violated with the disclosure of confidential information under the mandatory reporting requirements of MCL 722.623 or usage of that information. People v Mineau, 194 Mich App 244, 246 (1992). In Mineau, 194 Mich App at 247-249, the Court of Appeals specifically found:

“[The] defendant[-father] and the trial court [found] ‘unfair’ the fact that on the basis of ‘confidential’ information voluntarily provided by the defendant to the counselor, the agency filed a report with the [DHHS] indicating [the] defendant[-father] was suspected of abusing his stepdaughter. Thus, in effect, [the] defendant[-father] is challenging the mandatory reporting requirement set forth in [MCL 722.623] on grounds that the reporting is generally ‘unfair’ when a defendant voluntarily seeks help and is contrary to public policy because it will dissuade persons such as [the] defendant[-father] from seeking help and thus hinder the discovery and removal of children from homes where they are abused.

This argument overlooks the fact that public policy issues are best addressed by the Legislature. Given enactment of the reporting requirement, as well as the section abrogating any legally recognized privileged communications except those between attorney and client, MCL 722.631, it appears the Legislature found the public policy arguments supporting general detention, and thus likely prosecution, MCL 722.623, more compelling than those promoting self-reporting and self-sought treatment.

* * *

Although we agree that the agency erred in failing to inform [the] defendant[-father] of its duty to report suspected child abuse when specifically questioned by [the] defendant[-father] regarding the confidentiality of his treatment, we do not find any support for [the] defendant[-father’s] proposed remedy—immunity from prosecution for criminal acts of sexual abuse committed against his stepdaughter.

* * *

We find no support for the trial court’s holding [the] defendant[-father] absolutely immune from prosecution on the basis of some generalized notion of fairness. There was no egregious conduct. The information reported was neither coerced nor solicited from [the] defendant[-father], but was given voluntarily. Dismissal of the information charging [the] defendant[-father] was improper.”

8.Mandatory Reporting Statute’s Implication of Defendant’s Right of Confrontation¹⁷ 

A defendant has an absolute right of face-to-face confrontation “for all ‘testimonial’ evidence unless a witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.” People v Jemison, 505 Mich 352, 361-362 (2020). “[A] statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial[;¹⁸] ‘[w]here no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.’” Ohio v Clark, 576 US 237, 245, 247, 249 (2015) (finding that “mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution[;]” in this case, the child-victim’s statements to his teacher identifying his abuser were not made with the primary purpose of creating evidence for prosecution, and accordingly, were not testimonial, where “[t]he teachers’ questions were meant to identify the abuser in order to protect the victim from future attacks”).

Although statements to individuals who are not law enforcement officers “are much less likely to be testimonial than statements to law enforcement officers[,]” “statements to persons other than law enforcement officers [may be] subject to the Confrontation Clause[, b]ecause at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns[.]” Clark, 576 US at 246-248 (“declin[ing] to adopt a categorical rule excluding [statements to individuals who are not law enforcement officers] from the Sixth Amendment’s reach[]” and further noting that “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause”).

B.Non-Mandatory Reporters of Suspected Abuse or Neglect

“In addition to those persons required to report child abuse or [child] neglect under [MCL 722.623], any person, including a child, who has reasonable cause to suspect child abuse or neglect may report the matter to the [DHHS] or a law enforcement agency.” MCL 722.624. See also MCL 722.632 (Child Protection Law does not prohibit any person from reporting suspected abuse or neglect to law enforcement officials or the court).

C.Reasonable Cause to Suspect Child Abuse or Child Neglect

The standard of suspicion necessary to trigger the reporting requirements of the Child Protection Law is “reasonable cause to suspect child abuse or child neglect.” MCL 722.623(1); MCL 722.624; MCL 722.632.

“For purposes of [the Child Protection Law], the pregnancy of a child less than 12 years of age or the presence of a sexually transmitted infection in a child who is over 1 month of age but less than 12 years of age is reasonable cause to suspect child abuse or child neglect has occurred.” MCL 722.623(8).

An individual identified as a mandatory reporter under MCL 722.623(1)¹⁹ who knows or has reasonable cause to suspect from the infant’s symptoms that a newborn infant has any amount of alcohol, a controlled substance, or a metabolite of a controlled substance in his or her body must report the information to the DHHS, unless the reporter knows that the substance is present due to treatment of the mother or newborn. MCL 722.623a. See MCL 722.623(1), which specifically requires the mandatory reporter to immediately report suspected child abuse or child neglect to centralized intake (the DHHS’s “statewide centralized processing center for reports of suspected child abuse and child neglect[,]” MCL 722.622(e)).

Determining “whether there is ‘reasonable cause to suspect abuse’ [does not] require[] the use of medical judgment. . . . [MCL 722.623(1)] expressly states that it applies to more than just medical doctors.” Lee v Detroit Medical Center, 285 Mich App 51, 62 (2009).

A person required to report under MCL 722.623 is “not free to arrogate to himself [or herself] the right to foreclose the possibility of a legal investigation by the state” where he or she has a reasonable suspicion of child abuse or child neglect. People v Cavaiani, 172 Mich App 706, 715 (1988). In Cavaiani, 172 Mich App  at 708-709, the defendant-psychologist was charged with a misdemeanor for failing to report suspected child abuse after his 9-year-old patient informed him that her father fondled her breasts.²⁰ Instead of reporting the suspected child abuse, the defendant-psychologist talked with the child’s father and determined that if any touching occurred it was accidental. Id. at 709. The trial court dismissed the misdemeanor charge against the defendant-psychologist reasoning that the “defendant[-psychologist], in the course of exercising professional judgment, might have concluded that the information supplied to him indicating that the victim was being abused was inaccurate or some kind of fantasy.” Id. at 715. In reversing the trial court, the Court of Appeals found that despite the defendant-psychologist’s personal belief of whether child abuse occurred, he was still obligated to report the possibility of the child abuse to the DHHS to permit the state to do their own investigating. Id. at 715. Specifically, the Court of Appeals concluded:

“In this case, . . .[the] [d]efendant[-psychologist] had reasonable suspicion of child abuse, but concluded that his suspicions were not factually founded. With respect to [the] defendant[-psychologist’s] legal obligations under [MCL 722.623], it was not for him to make this determination, but for the responsible investigative agencies, such as the [DHHS], to make. While [the] defendant[-psychologist] is free to decide that the victim’s allegations are untrue for purposes of rendering professional treatment, he is not free to arrogate to himself [or herself] the right to foreclose the possibility of a legal investigation by the state. The state has different interests, and its sovereignty is offended by child abuse.” Cavaiani, 172 Mich App at 715.

See also Lee, 285 Mich App at 62-63 (medical doctors are required to immediately report when there is any reasonable cause to suspect a child is being abused or neglected; it is up to Child Protective Services (CPS) to investigate and “determine the validity of the information provided”); Williams v Coleman, 194 Mich App 606, 617-620 (1992) (foster care workers who had reasonable cause to suspect the neglect of a child, who was not under court jurisdiction, were required to refer the case to the Children’s Protective Services (CPS) rather than determine the credibility of the information received).

D.False Report

“A person who intentionally makes a false report of child abuse or neglect under [the Child Protection Law] knowing that the report is false is guilty of a crime as follows:

(a) If the child abuse or neglect reported would not constitute a crime or would constitute a misdemeanor if the report were true, the person is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $100.00, or both.

(b) If the child abuse or neglect reported would constitute a felony if the report were true, the person is guilty of a felony punishable by the lesser of the following:

(i) The penalty for the child abuse or neglect falsely reported.

(ii) Imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both.” MCL 722.633(5).

Because MCL 722.624 “expressly contemplates reporting of child abuse by mandatory and nonmandatory reporters, the plain meaning of the reference in MCL 722.633(5) to ‘[a] person who intentionally makes a false report of child abuse or neglect under this act’ covers both mandatory and nonmandatory reporters.” People v Mullins, 322 Mich App 151, 160-162, 173 (2017) (emphasis added) (disagreeing with the defendant’s argument that she cannot be held criminally liable under MCL 722.633(5) for “us[ing] her daughter and school officials to make a false report of felony child abuse against her daughter’s father[]” “because [the] defendant and [her minor daughter] were not mandatory reporters, and the statute only criminalizes false reports by mandatory reporters”). “[T]he phrase [‘under this act’] clarifies that the activity criminalized by MCL 722.633(5) is the making of a specific report to CPS as authorized by the Child Protection Law, as opposed to some other kind of report not involving abuse or neglect of a child or made to some person or entity other than CPS or law enforcement.”

Although “other provisions of Michigan law criminalize false reports of criminal activity by nonmandatory reporters, . . . the same activity can violate more than one criminal provision.”Mullins, 322 Mich App at 160-161 (rejecting the defendant’s argument that “because other provisions of Michigan law criminalize false reports of criminal activity by nonmandatory reporters, MCL 722.633(5) must be read to be limited solely to mandatory reporters of felony child abuse or neglect[]”).

“MCL 722.633(5) is not ambiguous with respect to holding liable someone who uses an innocent agent^[21] to make a false report of child abuse.” Mullins, 322 Mich App at 165 “Considering the facts of this case in line with the innocent-agent doctrine, [the Court of Appeals found] no error with charging and convicting defendant under MCL 722.633(5)[ when the] . . .   defendant repeatedly used [her daughter] and others as agents to make false reports of child abuse against [her daughter’s father.] . . . [D]efendant used [her daughter] to report to her teacher [that she was sexually abused by her father], who then reported the matter to the school principal, who in turn reported the matter to CPS. Neither [the defendant’s daughter], the teacher, nor the school principal intended to make a false report; instead, they were acting as the innocent agent of defendant’s malicious plan. Nor was the chain of agents too attenuated under the facts of this case, as [the defendant’s daughter] was a minor and both the teacher and principal were mandatory reporters under MCL 722.623, meaning that they had no choice or discretion under the law but to report the allegations in accordance with the Child Protection Law.” Mullins, 322 Mich App at 164-165