SOUTH DAKOTA

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WHO:        ANY person MAY report if s/he knows or has reasonable cause to suspect that a child has been abused or neglected.  [Codified Laws § 26-8A-3]

ANY person MUST report if s/he has reasonable cause to suspect that a child has died as a result of abuse or neglect.  [Codified Laws §§ 26-8A-4; 22-11-2]

These are mandatory (MUST report): • Physicians, dentists, osteopaths, chiropractors, optometrists, emergency medical technicians, paramedics, religious healing practitioners, podiatrists, hospital interns or residents, nurses, or coroners • Teachers, school counselors, or officials • Licensed or registered child welfare providers • Mental health professionals or counselors, psychologists, social workers, chemical dependency counselors, employees or volunteers of domestic abuse shelters • Employees or volunteers of child advocacy organizations or child welfare service providers • Parole or court services officers or law enforcement officers • Any safety-sensitive position (as defined in § 3-6C-1(25)), including any law enforcement officer authorized to carry firearms and any custody staff employed by any agency responsible for the rehabilitation or treatment of any adjudicated adult or juvenile.  [Codified Laws §§ 26-8A-3; 26-8A-6; 26-8A-7]

·       NOTE: The mandate for personnel at hospitals and the like and at schools concerns observations in work environments. The mandate for others implicitly concerns their professional functions but is not specific as to where their observations are made.

·       STANDARD:  [Codified Laws §§ 26-7A-1(6),(21); 26-8A-3; 26-8A-4; 22-11-12]  Child here means under age 18. Minor means under age 18. In other contexts, child means under age 21 and: (a) under a court’s continuing jurisdiction [e.g., foster care]; or (b) before the court for an alleged delinquent act committed before the 18^th birthday.

(1)      For mandated reporters: reasonable cause to suspect that a child under age 18 has been abused or neglected as defined in § 26-8A-2 (see below).

(2)      For other reporters: reasonable cause to suspect that a child has been abused or neglected as defined in § 26-8A-2 (see below).

(3)      For any reporter: reasonable cause to suspect that a child has died as a result of abuse or neglect as defined in § 26-8A-2 (see below). 

(a)     Statute § 26-8A-4 is ambiguous as to whether otherwise non-mandatory reporters must report a suspicious death. But § 22-11-12 requires anyone with unprivileged knowledge of a felony (here, homicide of a child) to report it with the perpetrator’s name if known, and all other relevant known facts.

·       PRIVILEGE:  Four privileges do NOT exempt reporting; physician-patient; husband-wife; school counselor-student; or social worker-client.  [Codified Laws § 26-8A-15; see § 26-8A-3]  Clergy are NOT mandated, so clergy-penitent privilege is irrelevant.

WHEN:      If mandated: IMMEDIATE.  [Codified Laws § 26-8A-8] 

WHERE & HOW:  [Codified Laws §§ 26-8A-3; 26-8A-8; Admin. Code § 67:14:30:06]

(A)     Mandated reports MUST be immediate and oral (phoned or otherwise) to: (1) the state's attorney; (2) Dept. of Social Services (DSS); OR (3) a law enforcement officer. If to a state’s attorney, it must be for the county in which the child resides or is present

(B)     A mandated reporter who witnessed disclosure (e.g., discussion) or evidence of abuse or neglect MUST be available for questioning when the initial report is made.

(C)    Reports by non-mandated reporters are made to the same contacts as if mandated.

(D)    Hospitals:  Mandatory reporters on staff at a hospital or similar institution who have contact with children in their work MUST immediately notify the chief or his/her designee of suspected abuse or neglect. The chief must then report it as below. The reporter must promptly submit to the state’s attorney complete copies of all the child’s medical exam, treatment & hospital records.  [Codified Laws § 26-8A-6]

(E)     Schools:  Mandatory reporters doing services and with contact with children while working at any public or private school – accredited or not, as a teacher, nurse, counselor, official, or administrator, or outside/alternative instructor MUST notify the principal or superintendent or his/her designee of suspected abuse or neglect. The principal or super. must then report it (as below).  [Codified Laws § 26-8A-7]

(F)     Suspicious Deaths: anyone MUST report to the county medical examiner or coroner in addition to making the regular report. [Codified Laws § 26-8A-4; 22-11-12]

CONTACT INFORMATION

·       State’s Attorneys:                                   See the directories below.

o   https://sdstatesattorneys.org/sd-states-attorneys/ 

o   https://atg.sd.gov/LawEnforcement/CriminalJusticeDirectory/default.aspx

·       DSS (8 a.m. – 5 p.m. M-F only):              1-877-244-0864         

·       Evenings, weekends & holidays:              Contact local law enforcement

·       Local Law Enforcement:                         See directory: https://www.usacops.com/sd/

·       Medical Examiners and Coroners:        See the directories below.

o   Coroners:              https://atg.sd.gov/docs/LET_Coroner_Contact_List.pdf

o   M.E.s & Coroners:            https://www.countyoffice.org/sd-medical-coroner/

·       Mandatory reporting guide:

   https://dss.sd.gov/formsandpubs/docs/ABUSE/MandatoryReportingEntire.pdf           

OTHER ASPECTS

·       REPORT DETAILS: Reports to the DSS MUST include: (a) the child's name, address, date, and place of birth; (b) the name and address of the child's parents, guardian, custodian, or responsible persons; (c) the date of the report; and (d) suspected or proven instances of abuse as in 26-8A-2 (listed below).  [Codified Laws § 26-8A-10]

·       REPORTER PROTECTION: (1) The reporter is not specifically required by statute to provide his or her name in the report. (2) The reporter’s name is not disclosed unless: (a) the report cannot be substantiated; (b) the subject requests identity disclosure within 30 days; AND (c) a hearing determines whether there was malice, reasonable foundation, or releasing the name would endanger life or safety.  [Codified Laws § 26-8A-11.1]  (3) Any reporter in good faith is immune from civil and criminal liability, unless s/he allegedly abused or neglected a child.  [Codified Laws § 26-8A-14]

WHY:        Knowingly, intentionally failing to make a mandated report is a class 1 misdemeanor. This applies to each of (1) regular reports; (2) reports of suspicious deaths to a coroner or medical examiner; (3) reports required from hospital staff, including copies of hospitals records; and (4) reports required from staff of public or private schools. Anyone who knowingly, intentionally fails to report a felony commits misprision of felony, which is also a class 1 misdemeanor.   [Codified Laws §§ 26-8A-3; 26-8A-4; 26-8A-6; 26-8A-7; 22-11-12]  

WHAT:      In South Dakota, abuse or neglect include: lack of care; unhealthy environments; mistreatment and harms; and sexual abuse types.  [Codified Laws § 26-8A-2]  

Initial Screening Criteria (DSS): Children eligible for child protective services: (a) UNDER age 18, (b) alleged or determined to be UNSAFE because persons responsible for care are unable or unwilling to keep them safe from harm or threats of it, & (c) children who are abused or neglected as defined by the STATUTE.  [Admin. Code § 67:14:30:02] 

·        The report-taker will ask if the reporter wants a response report. For those who do, DSS or the law enforcement officer will provide one in writing within 30 days, acknowledging the report, and indicating whether it will be investigated.  [Codified Laws § 26-8A-8]

Reportable: (a) a parent, guardian, or custodian, for abandonment, lack of care, failing or refusing to provide,  injurious environment, exposure to drug lab, mistreatment or abuse, threat of substantial harm, emotional harm or mental injury, or sexual abuse / molestation / exploitation; (b) any other person responsible for the child’s care, for sexual abuse / molestation / exploitation; (c) the birth mother, for prenatal exposure to drugs; (d) anyone, for an injurious environment, exposure to a drug lab, threat of substantial harm, or causing emotional harm or mental injury; or (e) the child, if homeless, without proper care, or not domiciled with the parent, guardian, or custodian, through no fault of the adult(s).  [See items below.]  NOTE: abuse outside that description may constitute a crime that is reportable to police, without the protocol shown here.

Abuse and Neglect have 10 categories that are classified and re-organized below.     

Lack of Care

(A)     Abandonment by the parent, guardian, or custodian.  [Codified Laws § 26-8A-2(1)]

(B)     Lack of proper care due to acts or omissions of the parent, guardian, or custodian.  [Codified Laws § 26-8A-2(2)]

(C)    Failure or refusal to provide proper or necessary: (a) subsistence; (b) supervision; (c) education; (d) medical care; or (e) any other care necessary for the child’s health, guidance, or well-being, where the lack is due to their parent, guardian, or custodian.  [Codified Laws § 26-8A-2(4)]

Unhealthy Environment

(D)    Environment injurious to the child’s welfare.  [Codified Laws § 26-8A-2(3)]

(E)     Homelessness, lack of proper care, or not domiciled with the family (parent, guardian, or custodian), where the issue is through no fault of the parent, guardian, or custodian.  [Codified Laws § 26-8A-2(5)]

(F)     Prenatal exposure to abuse of alcohol, marijuana, or any controlled drug or substance not lawfully prescribed.  [Codified Laws § 26-8A-9]

(G)    Drug lab exposure: the parent, guardian, or custodian knowingly exposes the child to an environment used to make, use, or distribute methamphetamine or any other unlawfully manufactured controlled drug substance.  [Codified Laws § 26-8A-10]

Threat, Harm, or Injury

(H)    Mistreatment or abuse by the parent, guardian, or custodian.  [Codified Laws § 26-8A-2(1)]

(I)       Threat of substantial harm to the child.  [Codified Laws § 26-8A-2(6)]

(J)      Causing emotional harm or mental injury to the child, as indicated by an observable, substantially impaired intellectual or psychological function relative to the child’s normal range of performance and behavior, with due regard to his/her culture.  [Codified Laws § 26-8A-2(7)]

Sexual Mistreatment of the child.

(K)     Sexual mistreatment by the parent, guardian, custodian, or any other person responsible for the child’s care, taking the form of sexual abuse, sexual molestation, or sexual exploitation under § 22-22-24.3.  [Codified Laws § 26-8A-2(8)]

(1)     CONTEXT: THE AGE OF CONSENT is 16. (a) Knowing sexual contact by someone age 16 or more with someone under age 16 is a crime, whether it is penetrative or not. (b) Sex with a child under age 13 is de facto rape. (c) If a child age 13, 14, or 15 consents to someone who is less than 3 years older, it is a crime but not a felony. (d) Sexual contact between non-spouses, both under age 16, is illegal. (e) An exception allows sex between consenting legal spouses when one or both are underage.  [Codified Laws § 22-22-1; 22-22-7; 22-22-7.3]

(2)     CONTEXT: INCEST means mutually consensual sexual penetration involving a person age 18 or older, with a non-spouse partner that s/he knows is a relative within the degrees of consanguinity prohibited for (opposite-sex) marriage: (a) parent or child; (b) ancestor or descendant of any degree; (c) brother or sister of half or whole blood; (d) uncle, aunt, nephew, or niece; or (e) (first) cousin of half or whole blood. This is true whether the relationship is legitimate or not, and whether it arises through adoption or not.  [Codified Laws §§ 22-22A-2; 25-1-6]

(3)     SEXUAL EXPLOITATION is causing or knowingly permitting the minor to engage in an activity or simulation that: (a) is harmful to minors; (b) involves nudity; or (c) is obscene. The parent, guardian, or custodian must not consent it. And mistake-of-age as to the minor is not a defense.  [Codified Laws §§ 26-8A-2; 22-22-24.3]