Frequently Asked Questions About Child Injury Law
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Is there lead paint on my rental property?
Yes, in all likelihood. Lead was widely used in both interior and exterior house paint until 1978, when new laws greatly reduced the amount of lead allowed. For example, in San Francisco, 91% of homes were built before 1978, and most have older layers of lead-containing paint. So, there is a very good chance that your apartment or rental home contains lead - at some level. As long as it is properly contained, it will be OK for your child, but when paint chips, peels, chalks or when major renovation are done, you should insist that it be taken care of immediately. If you have any questions or concerns, please contact The Keane Law Firm.
How many children are actually lead poisoned in San Francisco on a yearly basis?
The government estimates that in excess of 400 children are lead poisoned each year in San Francisco. If your child is one of them, please contact The Keane Law Firm to see if we can help you help him or her bring a valid claim against the landlords and contractors responsible for poisoning them with lead.
What is the California Child Abuse Reporting Law?
In California, certain professionals are required to report known or suspected child abuse. The California Child Abuse Reporting Law is found in Penal Code Sections 11165-11174.3.
Is my landlord legally responsible for making sure my child doesn't become lead-poisoned while we live in the rental property?
Yes. Your landlord is required to follow the law and maintain your apartment or rental home in a safe condition - which means that your children should be exposed to zero lead. In San Francisco, for example, the San Francisco Health Code, Article 11, applies to all housing in San Francisco. Section 581(B)(10) prohibits lead hazards in any housing. The San Francisco Department of Public Health enforces the city and county's code. Inspectors from the Department of Public Health are entitled to presume that any paint on a building built prior to 1979 is lead-based, and may issue citations for chipped, or peeling paint based on their visual inspection of the building. Landlords are required to provide housing free of lead hazards. The San Francisco Health Code, Article 26, Section 1603(w), defines a lead hazard as “Any condition that exposes children to lead from any source, including but not limited to lead contaminated water, lead-contaminated dust (dust lead hazard), lead contaminated soil (soil-lead hazard), and paint-lead hazard in dwelling units or other locations”. When the inspectors find lead hazards, they will require the landlord to fix them using properly trained, state-certified workers. The city may require the landlord to provide the tenant with money to live elsewhere while the repairs are being made, too. San Francisco Building Code Section 3407 requires that all contractors use "lead safe work practices" for any activity which disturbs lead paint, and this would include repairing those apartments and rental homes that are cited for lead hazards. State law, CCR Title 17, Chapter 6, requires property owners of public and residential buildings to hire only lead-certified contractors to do work that reduces lead hazards. Pursuant to Title 17, any deteriorated (flaking, chalking, chipping, peeling) lead-based paint is a hazard. Federal law, 24 CFR Part 35 and 40 CFR Part 745 require all landlords to tell tenants both their knowledge of lead paint or lead paint hazards before a lease is effective, and to provide tenants with the United States Environmental Protection Agency Booklet entitled "Protect Your Family From Lead In Your House". If the landlord violated these laws, and your child was lead-poisoned, you may have the right to bring a lawsuit against the landlord and/or any of his contractors who created the lead hazard which poisoned your child. Contact the Keane Law Firm now to talk about it.
What should my landlord be doing to make sure my child isn't lead poisoned from paint on the rental property?
Your landlord should not delay maintenance of the paint on your property. With delayed maintenance, older lead paint will move through the chipping, peeling or cracking paint layers. Old lead paint which is improperly maintained will release lead dust particles. This is especially true of "friction points" - such as window sashes or door frames. When windows open and close, the friction causes painted surfaces to rub against each other, releasing lead dust particles if the paint is improperly maintained. Friction also occurs when doors are out of alignment. Insist that your landlord keep painted surfaces intact, and that doors are aligned properly. Also, when a landlord hires contractors to repair and renovate, or paint an older building, insist that they use safe work practices. This means that they should not be "dry-scraping" or "powersanding" without effective containment of the lead dust and clean-up. It is well-known that lead dust and debris spread inside the living space of an apartment or rental home. If you have questions or concerns about work done on your rental property, have your child tested for lead. If the test is positive, contact The Keane Law Firm immediately so that we can help your child with his or her claim against the landlord.
My child was lead poisoned when he was much younger, and we moved out of that property. Can we make a claim against our old landlord now - even though we have moved years ago?
Yes. You do not have to live in the apartment or rental home where your child was lead poisoned in order to make a claim or file a lawsuit against the landlord. Likewise, it is proper to bring the claim or file a lawsuit while you or your child still live in the apartment or home. You cannot be evicted from your home because you exercise the legal rights of your child to make a claim or file a lawsuit for being lead poisoned.
When is a mandatory reporter in California required to report known or suspected child abuse?
According to the Department of Social Services Office of Child Abuse Prevention, child abuse must be reported when one who is a legally mandated reporter has "knowledge of or observes a child in his or her professional capacity, or within the scope of his or her employment whom he or she knows or reasonably suspects has been the victim of child abuse or neglect..." (P.C. 11166(a)). The term "reasonable suspicion" occurs when it is objectively reasonable for a person to entertain such a suspicion, based upon facts that could cause a reasonable person in a like position, drawing when appropriate on his or her training and experience, to suspect child abuse." (P.C. 11166(a)(1)) The intent of this definition is clear: if you suspect, report. A mandatory reporter must make a report IMMEDIATELY (or soon as practically possible) by phone. A writen report must be forwarded within 36 hours of receiving the information regarding the incident (P.C. 11166(a)). Written reports must be submitted on Department of Justice forms, which can be requested from a local police or sheriff's department (not including school district police or security department), or a county welfare department. (P.C. 11168) When 2 or more persons who are required to report have joint knowledge of a known or suspected instance of child abuse or neglect, and there is agreement among them, the telephone call may be made by the selected team member. A single written report may then be made and signed by the reporting team member. When there is a failure by the designated team to make the report, any team member who knows shall then be responsible to make the child absue report. (P.C. 11166(f)).
Can I report suspected abuse - even if I am not a mandatory reporter? And, if I can, what protections or safeguards are there for people who report known or suspected child abuse in California?
Yes, you can. But The Keane Law Firm does not accept those reports. First, go immediately to the Resources section of this website, and hit the link for California. It will take you to the homepage for the Department of Social Services. On that page you will find a link to Child Protective Services Hotlines. Hit that link and you will see the emergency child abuse contact phone numbers for each county in California. Call the number in your county. If you need help, call 1-800-422-4453, a national child abuse hotline called ChildHelp. According to the Department of Social Services Office of Child Abuse Prevention, persons who are legally required to report suspected child abuse have immunity from criminal or civil liability for reporting as required or authorized by the child abuse and neglect reporting laws. (P.C. 11172(a)) Also, no supervisor or administrator may impede or inhibit a report or subject the reporting person to any sanction. (P.C. 11166(g)). Persons other than those legally mandated to report are not required to include their names when making a report. (P.C. 11167(e)). Reports are confidential and may be disclosed only to specified persons and agencies (P.C. 11167.5).
Can a mandatory report who fails to report known or suspected child abuse be sued and held liable for failure to make the required report?
Yes. A person who is required but fails to make a required report is guilty of a misdemeanor punishable by up to 6 months in jail and/or up to a $1,000.00 fine, or both. (P.C. 11166(b)) The person may also be sued and found civilly liable for damages, especially if the child victim or another child is further victimized because of the failure to report. See Landeros v Flood (1976). According to the Department of Social Services Office of Child Abuse Prevention, any person who starts a job which makes him or her a required reporter must sign a statement, provided by the employer, to the effect that he or she has knowledge of the reporting law and will comply with its provisions (P.C. 11166.5(a) Commercial film and photographic print processors and persons employed by child protective agencies as members of the support staff or maintenance staff and who do not work with, observe, or have knowledge of children as part of their official duties are not required to sign such statements. (P.C. 11166.5(a))
How can a mandatory reporter, or even untrained members of the general public, identify child abuse?
According to the Department of Social Services Office of Child Abuse Prevention, identifying where child abuse occurs requires the helping professional first of all to believe that child abuse can occur in any situation, regardless of socioeconomic status, religion, education, ethnic background, or other factors. Secondly, there must be a willingness to inquire into the possibility of abuse. There are four basic areas in which abuse may be revealed: (1) environmental problems, (2) parental or caregivers clues, (3) physical indicators in the child, and (4) behavioral indicators in the child. A potential list of these signals, as provided by the Department of Social Services Office of Child Abuse, is provided below. However, this is only a partial list. These may become known through interview, observation or a third party reporting them. Environmental problems which may suggest that abuse should be a concern: (1) Hazardous conditions (broken windows, faulty electrical fixtures, etc.), (2) Health risks (presence of rats, feces, no running water, no heat, etc.) or unsanitary conditions, (3) extreme dirt or filth affecting health. Parental or caregiver clues which may suggest that abuse should be a concern: (1) Parent or caregiver is unable/unwilling to meet child's basic needs and provide a safe environment, (2) Parent or caregiver tells you of homicidal thoughts/feelings toward child, (3) Parent or caregiver tells you of use of objects (belts, whips, clothes hanger) to discipline the child, (4) Parent or caregiver is unable to describe positive characteristics of the child, (5) Parent or caregiver has unrealistic expectations of the child (e.g., toilet-training of a 6 month-old), (6) Parent or caretaker uses "out of control" discipline, (7) Parent or caretaker is unduly harsh and rigid about childrearing, (8) Parent or caretaker singles out one child as "bad", "evil", or "beyond control", (9) Parent or caretaker berates, humiliates or belittles child constantly, (10) Parent or caretaker turns to child to have his/her needs met, (11) Parent or caretaker is impulsive, unable to use internal controls, (12) Parent or caretaker cannot see child realistically, attributes badness to child, or misinterprets child's normal behavior (e.g. takes an infant's crying as a sign of intentional meanness), (13) Parent or caretaker is indifferent to child. Signs of physical injury which may suggest that abuse should be a concern: (1) fractures, lacerations, bruises that cannot be explained or explanations which are improbable given the extent of the injury, or which are not age-appropriate (e.g. traumatic injuries in an immobile, young child - which would mean that it had to be inflicted versus a toddler who could feasibly fall and injure himself or herself in certain ways), (2) burns (cigarette, rope, scalding water, iron, radiator), (3) facial and oral injuries (black eyes, broken jaw, broken nose, bloody or swollen lips, torn frenulum) with implausible or non-existent explanations, (4) subdural hematomas, long-bone fractures, fractures in different state of healing, (5) pattern of bruising (e.g. parallel or circular bruises) or bruises in different stages of discoloration, which are consistent with repeated trauma over various periods of time. Behavioral or development signs which may suggest that neglect should be a concern: (1) failure to thrive, a child's failure to gain weight at the expected rate for a normal child (e.g. a child who fails to thrive may have medical or psychosocial problems, or a combination of these, (2) malnutrition or poorly balanced diet (bloated stomach, extremely thin, dry, flaking skin, pale, fainting), (3) inappropriate dress for weather, (4) extremely offensive body odor, (5) dirty, unkempt, (6) unattended medical conditions (e.g. infected minor burns, impetigo). Signs of sexual abuse: (1) bruising around the genital area, (2) swelling or discharge from vagina/penis, (3) tearing around the genital area, including rectum, (4) visible lesions around mouth or genitals, (5) complaint of lower abdominal pain, (6) painful urination, defecation. According to the Department of Social Services Office of Child Abuse Prevention, there are also behavioral indicators that a child has been abused. Children react differently to being abused. There is no one single reaction that can be clearly associated with child abuse; however, there are a number of possible behaviors which have been found to be consistently correlated with abuse. While some of these behaviors occur more with one type of abuse than another, they may overlap. The presence of any of these indicators does not prove the child is being abused, but should serve as a warning signal to look further. Behavioral indicators that a child has been physically abused: (1) hostile or aggressive behavior toward others, (2) extreme fear or withdrawn behavior around others, (3) destructiveness (breaks windows, sets fires, etc.), (4) verbal abusiveness, (5) out-of-control behavior (angry, panics, easily agitated). Behavioral indicators that a child has been sexually abused: (1) sexualized behavior (has precocious knowledge of explicit sexual behavior and engages self or others in overt or repetitive sexual behavior), (2) hostility or aggression, (3) fearfulness or withdrawn, (4) pseudo-maturity (seems mature beyond chronological age), (5) eating disorders, (6) alcoholism/drug abuse, (7) running away, (8) promiscuity. Behavioral indicators that a child has been neglected: (1) clingy or indiscriminate attachment, (2) self-imposed isolation, (3) depression or passivity. Behavioral indicators that a child has been subject to emotional abuse: (1) lacks self-esteem, puts self down constantly, (2) seeks approval to an extreme, (3) unable to be autonomous (e.g. makes few choices, fears rejection), (4) hostile, verbally abusive, provocative. According to the Department of Social Services Office of Child Abuse Prevention, it is important to note that a child who is being physically abused or neglected or sexually abused is also being emotionally abused. The best source of information is not what the child says but how the child behaves. Mandated reporters must stay alert and responsive to the aforementioned child behaviors. Children will rarely report they are being abused; but, being unable to stop the abuse, they frequently develop coping mechanisms and behaviors which bring them to the attention of others. These children tend to be firecely loyal to their abusers, often demonstrating a pathological dependency on them. They may try to adapt and comply in order to please their abusers and may serve as caretakers to their abusers in order to avoid further abuse or rejection.