Child Abuse and Neglect: Against the Law
The right of parents to the custody and control of their children is a fundamental right protected by the United States Constitution. But each state sets standards for minimal care of children, and parents who fall below that minimum can lose their children. Clearly, when a child is covered with cigarette burns or has multiple-bone fractures caused by beatings, the child needs state protection. But what about a child whose mother is living with a man to whom she is not married? Or a child whose parents are unemployed and living in inadequate housing? The question of what standards a state should use for intruding into the privacy of a family to protect children is of national importance. It is perhaps even more critical in the Southern states, however, because cases of child neglect and abuse are so often tied to poverty. In the South low wages and low AFDC payments put many families at risk. A balance must be reached between protecting children from mistreatment and allowing parents to rear their children within their own abilities, values and religious beliefs. State laws which define abuse and neglect usually are all-encompassing. In Georgia, for example, a “deprived child” includes a child who “is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental or emotional health, or morals.” [Ga. Code Ann. §24A-401(h) (supp. 1978)]. In Mississippi a neglected child includes a child “who, for any reason, lacks the care necessary for his health, morals or well-being.” [Miss. Code Ann. §43-21-105 (1) (iv) (Supp. 1980)]. An “abused child” is defined as a “child whose parent, guardian or custodian . . . has caused or allowed to be caused upon said child sexual abuse, emotional abuse or non- accidental physical injury.” [Miss. Code Ann. §43-21-105 (m) (Supp. 1980)]. Laws which employ such general terms run the risk of being so vague as to be unconstitutional. In the case of Roe v. Conn [417 F. Supp. 769 (M.D. Ala. 1976)], a three-judge federal court in Alabama ruled unconstitutional the state’s neglect statute, which stated:
The words “neglected child” shall mean any child who, while under 16 years of age . . . has no proper parental care or guardianship or whose home, by reason of neglect, cruelty or deprivity, on the part of his parent or parents, guardian or other person in whose care he may be, is an unfit and improper place for such child... or is under such improper or insufficient guardianship or control as to endanger the morals, health or general welfare of such child ... or who for any other cause is in need of the care and protection of the state.
The court stated that:
Not only is the statutory definition of neglect circular (a neglected child is any child who has no proper parental care by reason of neglect), but it is couched in terms that have no common meaning. . . . When is a home an “unfit” or “improper” place for a child? Obviously, this is a question about which men and women of ordinary intelligence would greatly disagree. Their answers would vary in large measure in relation to their differing social, ethical and religious views. Because these terms are too subjective to denote a sufficient warning to those individuals who might be affected by their proscription, the statute is unconstitutionally vague.
Many states’ definitions of neglect and abuse still use such general terms and hence are constitutionally suspect.
Can the state remove a child when there has been no demonstration of actual physical or emotional harm to the child? In Roe, a nine-month-old boy was removed from his mother’s home because both mother and child were white and were living with a black man in a black neighborhood. There was no evidence that the child was not being well cared for or that the home was unsafe. The court decided that an “improper” home was not a sufficient reason for allowing the state to disrupt the family. Although it was a lower court decision, the reasoning of the court in Roe is in accord with recent Supreme Court decisions concerned with protecting family privacy.
Thus far we have identified two constitutional limitations on neglect and abuse statutes. First, a statute should not be so vague that an average person could not understand what behavior is prohibited and second, the state must have a compelling reason — such as the existence or threat of serious physical or emotional harm to the child — before it can remove the child from the family. But even if a statute complies with these limitations, nonetheless these laws are frequently used unfairly against the poor. Alabama directly includes the children of the poor, giving the court jurisdiction over a child “who, for any reason is destitute, homeless or dependent on the public for support.” [Alabama Code §12-15-1(10)]. But even in states where the poor are not specifically included, most cases which actually enter the court system involve abuse and neglect which are rooted in poverty. The parents, or more often the single mother, are unable to provide the bare minimum of physical care the state requires.
A typical case, for example, might involve a young unmarried mother with several young children who is unemployed, is in poor mental and physical health, and is existing on AFDC payments, half of which are used for rent. The youngest child might be exhibiting the “failure to thrive” syndrome and be underweight and unresponsive. To bring the family up to a minimal level, the family might need intensive home making services, medical care and day care for a period of at least a year. In the short term, removal of the youngest child might seem to be the safer and cheaper option; this also puts the blame conveniently on the mother, the inadequate parent. But removal might result in long-term foster care which would ultimately mean higher financial costs to the state and possible emotional harm to the child.
Let us now consider what happens once a child has been removed from parental custody because of abuse or neglect. Although to remove a child, the state should have had to demonstrate harm, once a child has been removed the state will typically not return the child to the parents unless doing so would be in “the best interest of the child.” This obviously is a subjective standard, and once again, the impact of this subjectivity falls more heavily upon the poor. A family with money can avoid the problems of inadequate food and housing and can buy help in dealing with their children — medical assistance, day care and babysitters. The poor family must rely on public assistance and may have difficulty in improving the home situation enough so that the court will find that it is in the child’s “best interest” to be returned.
For children who cannot be returned home, the best solution seems to be that they be freed for adoption so that they can have a new permanent home with new parents. Before they can be adopted, their parents’ rights to them must be terminated either by judicial proceeding or by consent. Since judicial termination of parental rights is a much greater intrusion on the constitutionally protected rights of family integrity and parenthood than is temporary removal of the child from the home, the protections that parents should receive are even greater. Arguably, parents should be provided with counsel, the grounds for termination should be limited and compelling, and the state should have to prove that the statutory standard had been met with clear and convincing evidence, rather than with a mere preponderance of the evidence, the standard of proof used in most civil cases. Not all states provide these protections, however, and the Supreme Court has not yet decided whether they are constitutionally required.
Since terminating parent rights is difficult in most states, termination actions are not brought in all cases in which they should be. Also, state departments of social services frequently do not have the attorneys or money to handle termination cases, social services workers typically do not like to participate in court cases, and termination cases cause a lot of bad press for the agency. Thus there is no one to press for termination. But the effect of not terminating parental rights when children cannot be returned home is that children remain in the netherland of long-term foster care, protected from their parents, but harmed by state inaction.
What remedy then can be proposed to protect adequately children without imposing middle-class majority values on the poor, the unconventional, or ethnic or religious groups? The best hope now visible for solving these difficulties is being tried on an experimental basis in two counties in California. The purpose of California’s Family Protection Act is to keep children with their parents if at all possible, or to find a permanent home for the children elsewhere. Several aspects of the Act seek to avoid the drift into long-term foster care. First, removal of the child from the home is made more difficult. A child can be removed only if:
a. There is substantial danger to the physical health of the minor or the minor is suffering severe emotional damage; and
b. there are no reasonable means by which the minor's physical or emotional health may be protected without removing the minor from his parents’ or guardians’ physical custody. (319.5 Family Protection Act 1977.)
Voluntary placement is also regulated by the Act.
Once a child has been removed, the social service agency develops a written Reunification Services Plan. The parents and the agency agree on a contract which indicates what the parents must do before the child can be returned and also indicates what services the social service agency will provide. The agency receives enough funding to provide multiple services before and after removal. These services include in-home caretakers, housekeeping, respite care, housing assistance, medical care, marital counseling and consumer education.
The Act sets time limits on the length of out-of-home placement. If the child cannot be returned home within the time limits prescribed, then a permanent placement hearing is held. The Act further provides that parental rights can be terminated if a child remains out of parental custody and under court supervision for one year, because of abuse or neglect. Although this provision would be unjust in those states where removal is easy and few services are available, California provides the protection of multiple services and of high standards for removal. An intense effort is made to keep the family together and, if this effort fails, the child must be given a permanent placement within 24 months. Thus pressure is put on both the parents and the agency to resolve the child’s situation through intensive work over a limited time period. The burden on the poor clearly is lessened by the state’s taking on the obligation to provide adequate assistance. A progress report from San Mateo County on the first two years of operation of this experimental program shows a decrease in removals, a decrease in foster care and institutional care and an increase in guardianships and adoptions.
The California experiment is being closely monitored and will run for a four-year period. The results of the experiment will, it is hoped, give legislators in other states a clear guide for redrafting their child-abuse and neglect statutes and termination- of-parental-rights statutes in such a way as to provide more accurately for the “best interest of the child.”