Child Protection Investigative Authority Under Chapter 48
Wisconsin law entrusts county departments with the responsibility and authority to investigate "conditions surrounding . . . children in need of protection or services . . . and to take every reasonable action within its power to secure for them the full benefit of all laws enacted for their benefit." Sec. 48.57(1)(a), Stats.
Statutory direction for the investigation of suspected child maltreatment is detailed in section 48.981(3)(c)1. As you noted, the Children's Code authorizes county departments to interview a child at any location, without permission from the child's parents, if to do so is necessary to a determination of whether the child is in need of protection or services. Section 48.981(3)(c)1., as amended by 1997 Wisconsin Act 27, sec. 1703, provides, in relevant part:
The agency . . . may contact, observe or interview the child at any location without permission from the child's parent, guardian or legal custodian if necessary to determine if the child is in need of protection or services, except that the person making the investigation may enter a child's dwelling only with permission from the child's parent, guardian or legal custodian or after obtaining a court order to do so.
This section neither explicitly permits nor prohibits human service professionals from transporting a child for purposes of the interview. Because the statute could reasonably be interpreted to support either position, the question ultimately becomes one of legislative intent.
When faced with ambiguous statutes, Wisconsin courts will look to rules of statutory construction and to the legislative history of the statute. State v. Williams, 198 Wis. 2d 516, 544 N.W.2d 406 (1996). A court will favor statutory interpretation which fulfills the Legislature's objectives over an interpretation which does not. Belleville State Bank v. Steele, 117 Wis. 2d 563, 345 N.W.2d 405 (1984). In its effort to most accurately discern legislative intent, a court examines the scope, subject matter and object of the statute. Pulsfus Farms v. Town of Leeds, 149 Wis. 2d 797, 806, 440 N.W.2d 329 (1989). Where multiple statutes contained in the same chapter assist in implementing the chapter's goals and policy, the statutes should be read in pari materia and harmonized if possible. State v. Amato, 126 Wis. 2d 212, 216, 376 N.W.2d 75 (Ct. App. 1985). Ultimately, courts will construe the statute to give effect to its leading idea and will attempt to bring the entire statute into harmony with the legislative purpose. Williams, supra.
Chapter 48 Statement of Legislative Intent
The Legislature has indicated that chapter 48 is to be liberally construed to effectuate a number of express legislative purposes. Included among the stated purposes are: to recognize a child's need to be free from physical, sexual or emotional injury or exploitation, sec. 48.01(1)(ag), Stats., and to "ensure that children are protected against the harmful effects resulting from . . . the destructive behavior of parents or parent substitutes in providing care and protection for their children," sec. 48.01(1)(bg), Stats. The Legislature recognizes that agencies often share responsibility for children, and goes on to instruct that, "[t]his duty shall be discharged in cooperation with the court and with the public officers or boards legally responsible for the administration and enforcement of those laws." Sec. 48.57(1)(a), Stats., as amended by 1997 Wisconsin Act 292, sec. 251.
While emphasizing the importance of family unity, the Legislature recently amended the Children's Code "to more strongly emphasize that the best interests of the child must always be of paramount consideration under ch. 48, Stats." (Joyce L. Kiel and Don Salm, Wisconsin Legislative Council Staff, Information Memorandum 96-3, New Law Relating to Children in Need of Protection or Services, Involuntary Termination of Parental Rights and Other Matters Under the Children's Code and Juvenile Justice Code (1995 Wisconsin Act 275), May 17, 1996, at 13). Especially significant to the present question are additions to the Children's Code purpose statement which now encourage "innovative and effective prevention, intervention and treatment approaches, including collaborative community efforts" in policy development. Sec. 48.01(1)(br), Stats. Other sections of chapter 48 provide further evidence of the Legislature's intent to protect children through the use of collaborative investigation techniques.
Interview Protocol and Agency Collaboration
Section 48.981 provides direction to county departments and law enforcement agencies that conduct investigations of child maltreatment. Generally, law enforcement and county departments are required to initiate diligent and timely investigations. The statute specifies time periods during which investigations must be initiated and it delineates circumstances in which child protection workers must observe or interview the child. The Children's Code places primary responsibility for investigation of intrafamilial abuse for purposes of child protection with the county departments. However, under section 48.981(3)(b)1., law enforcement officers are required to conduct immediate investigations when reports indicate that a child's health or safety may be in immediate danger.
In addition to statutory mandates concerning interview protocol, county departments receive guidance on child abuse investigations from investigation standards promulgated by the State Department of Health and Family Services. Sec. 48.981(3)(c), Stats. The Standards expressly support the need to protect child victims from further traumatization and to preserve evidence in the form of the child's statements.
In recent years, social scientists have found that it is often best to avoid repeated interviews with child victims. This may be true to avoid traumatizing the child further and also to preserve the integrity of the child's statement as evidence. The Standards also recognize the usefulness of collaborative investigations between law enforcement officers and county child protection workers.
The use of investigative tools, such as child-centered interview sites, interdisciplinary investigative teams and the use of videotaped interviews, is accepted practice in Wisconsin and in many other jurisdictions. These are specialized investigative methods intended to produce reliable evidence, reduce traumatization of child victims, and lead to more timely resolution of cases. This is true whether the investigation is being pursued for child protection purposes or for a criminal investigation.
The decision to actually implement collaborative investigative techniques is made at the county level, through a county department and/or county board's formal recognition of a multidisciplinary child protection team, or child advocacy center. Section 48.981(7) now permits free exchange of otherwise confidential child abuse and neglect reports between members of multidisciplinary child protection teams recognized by the county department, and to staff members of child advocacy centers recognized by the county board or department.
Doctrine of Implied Powers
In sum, the Legislature has entrusted county departments with the responsibility to interview children early, at any location, outside the presence of a primary caregiver, with sensitivity and in a manner which preserves evidence in the form of the child's statement, and, where necessary, without the parent's knowledge or consent. Further, the Legislature recognized the authority of individual counties to create multidisciplinary child protection teams and child advocacy centers.
My office has previously observed that, "[a]lthough parental authority and responsibility to direct the upbringing, conduct, and education of a child is generally recognized, such authority is not unlimited." 81 Op. Att'y Gen. 126, 131 (1994). Clearly, investigation of child sexual abuse allegations, in some situations, may justify infringement on the parent's right to know and control the child's whereabouts during the school day.
Similarly, in some circumstances, investigation of child abuse allegations may justify infringing upon school officials' authority to control a child during the school day. County department staff who are conducting an investigative interview control the circumstances of that interview to the extent that the county department staff member may, in the exercise of professional judgment and in accordance with department standards, exclude school personnel from interviews. 79 Op. Att'y Gen. 49 (1990).
The Legislature cannot detail the precise means through which government agencies carry out their statutory obligations. The doctrine of implied powers explains that, "[w]here a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication." 2B Singer, Sutherland Statutory Construction, § 55.04 (Sands 5th ed. 1992), citing United States v. Sischo, 262 U.S. 165 (1923); Phelps Dodge Corp. v. National Labor Relations Bd., 313 U.S. 177 (1941); State of Maryland v. United States, 165 F.2d 869 (4th Cir. 1947). Certainly, there are limits to which the doctrine of implied powers may extend, but as is true with other questions of statutory construction, "[w]hether a power is to be implied turns on the intent of the legislature." Madison Metropolitan Sch. Dist. v. DPI, 199 Wis. 2d 1, 13, 543 N.W.2d 843 (Ct. App. 1995). Implied power may be found when the power rises fairly by implication from expressed powers, or if the power is necessarily implied by the statutes under which an agency operates. Id. If there is reasonable doubt as to the intent of the Legislature to extend power, the doctrine of implied powers is not applicable. Id.
In In Interest of R.W.S., 162 Wis. 2d 862, 471 N.W.2d 16 (1991), the Wisconsin Supreme Court looked to the statement of legislative intent in the Children's Code to find implied power to order restitution on read-in charges in a juvenile delinquency matter where the language of the statute did not explicitly permit or prohibit the order. The Court based its reasoning on the objectives of chapter 48, and the Legislature's instruction that chapter 48 is to be liberally construed. "What is called a liberal construction is ordinarily one which makes a statute apply to more things or in more situations than would be the case under strict construction." R.W.S. at 871-72. In R.W.S., the court explained that the facts did not represent an "'unfettered [use of] discretion to craft unique and unspecified remedies in juvenile matters'" because there was no contrary statutory language and because the language of the relevant statute, construed in light of legislative intent, supported the implied power. R.W.S. at 874.
The Court's reasoning in R.W.S. suggests that the power to transport a child to a child-centered interview site may be implied under certain circumstances. The Legislature has granted county departments the authority to interview, contact or observe a child at any location. The only exception to that broad grant of power to interview a child at any location is that the county agency may not enter the parental home without consent or permission from the courts. Where the Legislature specifically enumerates exceptions to a statute, the Supreme Court presumes that the Legislature intended to exclude other exceptions based on the rule of expressio unius est exclusio alterius. In Interest of Angel Lace M., 184 Wis. 2d 492, 516 N.W.2d 678 (1994).
Child advocacy centers are the result of agencies' collaborative efforts toward a common goal: furtherance of the best interests of certain child victims and witnesses. The legislative guidance that chapter 48 is to be construed liberally, and its explicit statement that county departments may interview a child at any location, support a finding that children may be interviewed at child advocacy centers recognized by the county board or department. Because the Legislature has endorsed the county's authority to recognize and utilize child advocacy centers, it would be unreasonable to interpret the statutes in such a way as to preclude their use with the children who are potentially most vulnerable to continued harm--those whose parents may be the perpetrators. It is only reasonable, then, under R.W.S., to imply the power to transport a child from point A to point B to accomplish the stated legislative purposes.
My conclusion, that staff of county departments or law enforcement officers working in collaboration with the county department may transport a child to a child advocacy center for purposes of an investigative interview, finds further support in chapter 950, Rights of Victims and Witnesses of Crime. In section 950.055(1), the Legislature sets out its intent to provide children with additional rights and protections during their involvement as victims or witnesses within the criminal justice or juvenile justice systems. Further, section 950.05(1)(c) encourages counties to provide victims and witnesses with "[e]scort and other transportation services related to the investigation or prosecution of the case, if necessary or advisable." The responsibility to provide and enforce the additional rights assured to children is assigned to the county board, making this section additionally supportive of a county's right to make use of child advocacy centers as recognized by the county board or department.
In conclusion, chapter 48, without further analysis, may be interpreted one of two ways: either to provide implicit authority to transport children to an investigative interview at a county recognized advocacy center or to render the advocacy centers unavailable to the most vulnerable victims. The authority to transport a child to an advocacy center is a power necessary to utilization of the advocacy center. I am satisfied that any other interpretation of this question would be contrary to the intent of the Legislature.
As a general matter, parents should, of course, be fully involved when services are provided to their children. Where circumstances suggest that is not possible, I encourage county departments to work closely with school personnel, the prosecutor, law enforcement and other colleagues in county government to ensure that child advocacy centers function as intended.
Your remaining questions relate to the extent, if any, of a school district's legal liability in cases where county personnel transport a child from school to conduct an interview. My office is not generally authorized to advise school districts and, thus, cannot issue an opinion on those issues. See 77 Op. Att'y Gen. Preface (1988). I would note, however, that your request points to no statutory language in section 48.981(4), or elsewhere, which: (1) extends immunity to school district personnel unless they are involved in the conduct of the investigation itself; or (2) which alters the legal principle that "[a] teacher in the public schools is liable for injury to the pupils in his charge caused by his negligence or failure to use reasonable care." Grosso v. Wittemann, 266 Wis. 17, 20, 62 N.W.2d 386 (1954).
James E. Doyle
County Departments have authority to transport a child to a county-recognized child advocacy center for the purpose of an investigatory interview without consent of the primary caretaker if to do so is necessary to an investigation of alleged child maltreatment. Ordinarily, transportation should be conducted without consent of the primary caretaker only when the primary caretaker may be the perpetrator of child maltreatment, or if the identity of the alleged perpetrator is unknown. Law enforcement officers may transport the child at the request of the county department for purposes of a collaborative interview or if the interview is being conducted by law enforcement as authorized by section 48.981(3)(b)1., Stats.