Protecting America's children: a challenge.

Improvements in the way we handle child abuse and neglect cases are too slow in coming. Here are ways trial lawyers can make a difference.

In an article in the December 1983 issue of TRIAL, I wrote that many abused and neglected children did not "receive the legal attention they deserve," while some legal interventions were inappropriate.(1) I noted that the price society paid for not adequately addressing child abuse was the already acknowledged connection between child maltreatment in the home and (in many cases) children's later serious emotional problems, antisocial acts, and criminal behavior. Today, this link is much more clearly established.(2)

I also observed that children brutalized at home frequently faced "an equally damaging neglect by bureaucratic agency and judicial system practice that can occur when their needs are ignored...."(3)

When I wrote these words 15 years ago, approximately 1 million reports of child abuse and neglect were made each year. In 1996, the latest year for which statistics are available, over 3 million reports were made, with almost a million of those children confirmed as victims of abuse or neglect--an increase of about 18 percent since 1990.

In 1996, over 1,000 children are estimated to have died from maltreatment in their homes.(4) Many experts believe that an accurate count would be much higher. Data on the national incidence of child maltreatment disclose that the number of children seriously injured or endangered quadrupled between 1986 and 1993.(5)

I am convinced that we continue to face a child protection national emergency. Child abuse is a root cause for many of our most costly social problems, and its continued rise poses a major threat to the security--and potential--of the country.

Today, those with expertise in child protection policy rightly continue to express concern about inadequate government action to protect children exposed to violence in their homes. For example, most local child protective service (CPS) agency responses are single-incident driven, so that agency efforts too often emphasize time-consuming investigation of an isolated report at the expense of services and treatment, especially for chronically troubled families.

Case intake, screening, and risk assessment instruments were created, in part, because CPS generally lacks sufficient numbers of trained professional social workers to swiftly conduct comprehensive family needs assessments.

Also, the major involvement of police in child maltreatment cases has come at the expense of more sensitive nonadversarial, mediation-focused responses. Fortunately, new, "softer" case resolution approaches are being developed by courts and CPS agencies throughout the country.

There are also continuing problems with inappropriately coercive interventions. Poorly paid, undertrained caseworkers (who frequently are not degree-holding social workers), with caseloads that are far too heavy, are more likely to make mistakes. They often choose to err on the side of removing children from their homes rather than risk having a child on their caseload abused again or, worse, become a homicide victim.

The vast majority of identified child maltreatment victims have suffered neglect but no abuse. According to government data, 24 percent of victims are physically abused, and 12 percent are sexually abused.(6) The CPS system inappropriately intervenes in too many cases where a family's principal problems are related to poverty rather than based on parental behaviors that place children at risk of serious harm.

Another important problem is the practice of citing mothers for child neglect based on their alleged failure to protect their children from male abusers who also terrorize the mothers. The risk is that these mothers--who are themselves victims of domestic violence--may lose their parental rights inappropriately. Although the batterers should be held accountable, it is too often the victims (typically mothers) who face the loss of their children.

In some ways, however, child protection practices are changing for the better. Government officials and child protection professionals have become more aware of barriers to preventing and responding to child abuse and neglect. They are also learning ways to overcome these barriers.

States and communities are experimenting with less adversarial approaches that substitute assessments of child and family needs for intrusive investigations. Some communities are reorganizing the delivery of child welfare services so that most help for families will be delivered through neighborhood-based programs, using creative public-private partnerships.

The most chronically troubled families often find themselves the focus of judicial child protective case proceedings brought by CPS, Many state court systems have recently conducted comprehensive assessments of how local courts handle child abuse and neglect cases.(7)

These assessments have disclosed the need to improve legal representation provided to the CPS agency, the parents, and the child. The list of states with statewide or pilot unified family courts is growing slowly. These courts help assure that family issues raised in multiple judicial proceedings can be coordinated and approached holistically.

However, improvement in the handling of child maltreatment cases is still too sluggish. As the U.S. Advisor), Board on Child Abuse and Neglect noted in its 1990 report, "[A]fter nearly 30 years of [the nation] responding to the problem of child maltreatment, the gap between what needs to be done and what is being done grows wider every year."(8) That statement is still true.

The following is a proposed agenda for attorneys to help close this gap. It is a challenge to trial lawyers involved with government public safety, and child protection programs as well as to those interested in helping improve public policies affecting endangered children.

Safety first

Attorneys should help ensure that state laws, CPS agency practices, and court proceedings focus on actions to protect children from serious physical and emotional harm in their homes--and, when parents cannot assure protection, to quickly secure alternative permanent family placements.

Much has been written and discussed in the child welfare community about how policies favoring family preservation have too often come at the expense of children's safety.(9)

Too many caseworkers have misapplied principles of family preservation or reunification. The result: Children are maintained in or returned to hellish living environments where they suffer further severe, sometimes lethal, harm.

Too much deference to parental rights has sometimes led child welfare agencies and courts to delay resolving cases, giving unfit parents inordinately long periods of time to remedy their various "problems." In these cases, children spend critical childhood years in limbo, sometimes in unsafe foster homes, and many of them come away from the experience emotionally scarred by the instability of multiple temporary placements.

Sometimes these children are bounced back and forth between parents, relatives, and foster care, deprived of the legally secure, safe permanent home that all children deserve.

As a remedy, in 1997 Congress passed the Adoption and Safe Families Act (ASFA), which uses the substantial federal support of state and local foster care costs to leverage key reforms in agency and court practices.(10) New state laws and juvenile court actions are beginning to reflect these ASFA mandates.

Among the ASFA directives are three pivotal requirements:

* Cases of aggravated child maltreatment--such as causing the death of a child, committing serious felony assault on a child, torturing a child, chronically abusing a child, or sexually abusing a child--should be exceptions to otherwise mandatory state efforts to preserve or reunify families.

Egregious cases of infant abandonment or violent parental assaults on children should be the basis for fast-track judicial actions to terminate parental rights and legally free a child for adoption or permanent legal guardianship.

* Reunification services for families with children removed from the home due to abuse or neglect should be limited to a little over a year, where appropriate.

* Courts should hold a special permanency hearing within a year of a child's entry into foster care (or within 30 days after making a fast-track decision) so that, when it is clear the child cannot safely return to a parent, diligent efforts are made to promptly secure an adoptive or other permanent home. It is essential to consider using placement resources outside the child's county and state, and no adoptive placement should be delayed or denied based on race, color, or national origin.

Lawyers--particularly those in attorney general offices and state or county attorney offices representing public child welfare agencies--should ensure that these principles are implemented through state legislation, CPS policies, and, most important, court practice reform.(11) Lawyers should also encourage their state and local bar associations to become involved in evaluating how their state's child protection system--both CPS and the judiciary--is meeting the "safety first" and "expedited permanency" challenges.

Accessible services

Attorneys should help ensure that state laws. CPS agency practices, and court proceedings routinely provide for an evaluation of the physical and mental health, education, and other needs of abused and neglected children and children exposed to domestic violence in their homes. The same evaluation should be provided for the parents.

Attorneys should work to improve the laws and judicial processes to ensure that needed treatment and other services are promptly provided. When necessary, they should litigate to secure these services.

According to the Advisory Board's 1990 report,

   It is a national tragedy that most maltreated children, even after they
   have been identified as such by public authorities, do not receive
   treatment. They even fail to receive treatment after they have been placed
   in the custody of the state or county. Many maltreated children even fail
   to receive minimal counseling or support services.... Frequently, treatment
   for a maltreated child is determined not by what is needed, but rather by
   what is available locally.(12)

These statements are also true of treatment needed by parents of abused and neglected children. Most significantly, since the vast majority of parents who severely mistreat their children have serious drug or alcohol abuse problems, the lack of readily available substance abuse treatment programs geared to the needs of parents of young children is a significant systemic problem.

This is a topic worthy of class action litigation. Judges might decide that it is unfair to sever parental rights where substance-dependent parents do not have adequate access to rehabilitative resources.

Research shows that a history of violent assault during childhood or adolescence increases risk for a host of major mental health problems, such as post-traumatic stress disorder and substance abuse.(13) This is also true for children who have not themselves been abused but have witnessed domestic violence in their homes. These children are sometimes referred to as "secondary, victims."(14)

Where will the funding come from for treatment of these children? Aggressive outreach by child protection agencies and child victim programs to mobilize help from the mental health provider community is essential. Laws and CPS regulations should mandate child victim treatment. Advocates for reform must communicate the message that comprehensive treatment for child victims of abuse is a largely unmet need and that it is integrally related to crime and delinquency prevention.

Crime victim compensation and victim assistance program funds should be allocated to meet children's needs, whether they were victims of or witnesses to, violence. Laws need to be rewritten to ensure that government covers, where necessary, both the short- and long-term counseling and therapy costs for these children. Insurers and managed health care companies should be required to provide adequate coverage for appropriate mental health treatment.

Personal injury lawyers must work to fully inform child victims and their caretakers of their legal rights to pursue civil remedies. Experienced attorneys can train their colleagues on pursuing civil actions on behalf of violence-exposed children so that the pool of qualified plaintiff lawyers is increased.

Team approach

Attorneys need to work with governors, mayors, county executives, state and local legislators, judges, and others to redesign a child protection response system that would provide a "collaborative team approach" to cases of seriously victimized children. That system should mobilize professionals and services from the fields of social work, law enforcement, family violence, education, health, mental health, child advocacy--and, where appropriate, substance abuse, child development, public housing, and other specialized fields--to cooperate in addressing the child's and family's needs.

For example, professionals working in Children's Advocacy Center programs in over 350 communities interview sexually abused children in a single child-friendly location rather than in several intimidating environments. These centers have helped coordinate civil and criminal court interventions related to child molestation, secured essential evaluation and treatment, and reduced the trauma faced by young victims. For decades, other local programs have used a multidisciplinary team approach in a broad range of child maltreatment cases.

A multiagency response ought to be available to all children exposed to criminal acts of violence in their homes and communities. Lawyers who represent children, parents, or agencies responsible for children's protection should also be a part of that response.

Here are three important issues that this type of system must better address:

* Domestic violence. Violence in a child's home must be properly assessed after any report of abuse or neglect. There must be a sensitive response to victims of domestic violence--in most cases, battered women--whose children were also abused by their batterers.

Custodial parents need help securing and enforcing civil orders of protection that keep abusive adults away from them and their children. Laws may need to be changed so that juvenile courts have jurisdiction over abusive adults unrelated to the child and the authority to issue protective orders that can help keep children and their mothers safe without relying on foster care placement.

* Corporal punishment. The child protection system must begin to promote a meaningful public policy discussion concerning legal ways to reduce cruel and inhumane corporal punishment of children. The goal should be to forbid its use by parents under the influence of alcohol or drugs or by adults in the child's home who are neither parents nor legal guardians.

Loving, protective parents may occasionally use reasonable and moderate physical discipline. But too often bodily punishment of young children by substance-abusing, depressed, angry, or brutal adults gets out of control, and children suffer severe injuries or deaths. The public must be informed that it is unlawful to severely beat or viciously mistreat any child and must understand why the physical vulnerability of infants and toddlers requires special legal protection.

The law must reflect these principles. Laws need to be more clearly written as to when corporal punishment crosses the line to become child abuse.(15) Specific prohibited acts should be described, and the public should be educated about these unlawful acts. All parents need access to effective parent education and support services.

* Placements with relatives. In recent years, federal and state laws and child welfare agency practices have reflected a preference for placement of abused, neglected, or abandoned children with extended family members rather than in foster homes with strangers. This "kinship care" preference must be cautiously applied. Prospective homes, whether temporary or permanent, should be screened for safety and suitability. This should include screening the criminal records of adults in the home.

Child welfare agencies looking to place maltreated children permanently with relatives need laws that will aid in supporting these new caretakers. Welfare laws and policies should be amended to eliminate time limits or other conditions on aid for relatives willing and able to provide stable, loving homes to these children.

A special type of permanent guardianship must be provided by law for maltreated children whose parents cannot care for them and when adoption may not be possible. This form of guardianship can be designed to resemble an adoption rather than the traditional guardianship, which has been primarily concerned with management of a minor's financial assets.

Laws also must authorize government subsidies for relatives or others who agree to become permanent guardians for maltreated children. Health care coverage for these children should be provided, when necessary, by the state.

New ideas on intervention

As reforms in child protective services, including those described above, are taking place, new challenges continue to arise. Many cannot be addressed without "thinking outside the boxes" of traditional agency organization and statutory limits.

Here are a few of these challenges, each worthy of attention from lawyers concerned about protecting children from abuse and neglect.

* Financial support for troubled families. In many child neglect cases, the child does not face serious injury, but rather a parent is without accessible child care, adequate housing, and necessary health services. The parent may simply need help around the house or a respite from parental responsibilities.

Some parents facing these and other resource-related problems become the focus of CPS intervention after a report is made by a neighbor or relative claiming the parent is not adequately caring for his or her child. This can lead to lengthy government monitoring of the family or more costly foster care placement. These problems might be abated if caseworkers had quick access to a pool of money and volunteer assistance to help parents who are facing these issues.

* Information sharing. Some critical information is not readily accessible to CPS workers because of inappropriate confidentiality requirements. Statutory, changes are needed to remedy this situation. For example, front-line CPS workers investigating reports of serious child abuse should always be able to instantly access, electronically or by phone, criminal conviction and probation status information on adults residing in the homes the case workers are investigating.

School personnel, physicians, psychologists, police, or other professionals making reports of suspected child maltreatment to CPS need to receive feedback on the outcome of the investigation and the actions taken. They should, when appropriate, be encouraged to be part of the multiagency team approach to helping the child and family.

* Risk screening. Every caseworker investigating reported child abuse must carefully inquire about domestic violence in the home, the adult caretakers' exposure to violence in the past, the children's involvement as both victims and aggressors in violence outside the home, substance abuse or serious mental health problems of any family member, and any history of cruelty toward animals by anyone in the home.(16) These areas of inquiry are important for both case assessment needs and intervention and treatment decisions.

* Adequate training for caseworkers. Finally, we must begin to treat community child protection work as equal in importance to the public safety work of police officers and firefighters. That should mean equivalent compensation, supervision, and support services. Most important, it should mean "academy-style" training and skills-based instruction, which teaches how to make critical decisions based on child development and parenting knowledge. There should also be pre-service and ongoing testing that evaluates the caseworker's ability to perform needed tasks, not just to repeat knowledge learned in class.

These are lofty goals, but they are not out of reach. Accomplishing them will take great political will and the support of many people, including trial lawyers, who have not fully raised their voices on behalf of abused and neglected children.

With the solid commitment of lawyers and others who can help shape our laws and influence the workings of our courts, we can better protect our most vulnerable children.

Notes

(1.) Howard A. Davidson, Children's Rights: Emerging Trends for the 1980s, TRIAL, Dec. 1983, at 44, 46.

(2.) See CATHY SPATZ WIDOM, THE CYCLE OF VIOLENCE (RESEARCH IN BRIEF) (1992).

(3.) Davidson, supra note 1, at 48.

(4.) U.S. DEP'T OF HEALTH & HUMAN SERVS., CHILD MALTREATMENT 1996: REPORTS FROM THE STATES TO THE NATIONAL CHILD ABUSE AND NEGLECT DATA SYSTEM xi (1998)[hereafter CHILD MALTREATMENT 1996].

(5.) U.S. DEP'T OF HEALTH & HUMAN SERVS., EXECUTIVE SUMMARY OF THE THIRD NATIONAL INCIDENCE STUDY OF CHILD ABUSE AND NEGLECT v (1996).

(6.) CHILD MALTREATMENT 1996, supra note 4, at xi.

(7.) See AMERICAN BAR ASS'N CTR. ON CHILDREN & THE LAW, COURT IMPROVEMENT PROGRESS REPORT (Mark Hardin ed., 1998).

(8.) U.S. ADVISORY BD. ON CHILD ABUSE & NEGLECT, U.S. DEP'T OF HEALTH & HUMAN SERVS., CHILD ABUSE AND NEGLECT: CRITICAL FIRST STEPS IN RESPONSE TO A NATIONAL EMERGENCY 12 (1990).

(9.) See, e.g., RICHARD J. GELLES, THE BOOK OF DAVID: HOW PRESERVING FAMILIES CAN COST CHILDREN'S LIVES (1996).

(10.) Pub. L. No. 105-89, 111 Stat. 2115.

(11.) See, e.g., Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-33, 107 Stat. 649 [subsections] 13711, 13712 (as amended by the Adoption and Safe Families Act of 1997), which provides federal grant funds to support state court system improvement in handling child abuse and neglect cases. The ABA Center on Children and the Law maintains an Internet discussion group on court improvement in these cases. (Subscribe to the group at http://www.abanet.org/ child/discussion.html.)

(12.) U.S. ADVISORY BD. ON CHILD ABUSE & NEGLECT, supra note 8, at 38.

(13.) U.S. DEP'T OF JUSTICE, NEW DIRECTIONS FROM THE FIELD: VICTIMS' RIGHTS AND SERVICES FOR THE 21ST CENTURY 227 (1998).

(14.) HOWARD DAVIDSON, AMERICAN BAR ASS'N CTR. ON CHILDREN & THE LAW, THE IMPACT OF DOMESTIC VIOLENCE ON CHILDREN 1 (1994).

(15.) See, e.g., WASH. REV. CODE [sections] 9A.16.100 (1997) (discipline is presumed unreasonable if adult uses "throwing, kicking, burning, or cutting ... striking a child with a closed fist ... shaking a child under age three ... interfering with a child's breathing ... threatening a child with a deadly weapon: or ... doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks. The age, size, and condition of the child and the location of the injury shall be considered...."); see also Howard Davidson, The Legal Aspects of Corporal Punishment in the Home: When Does Physical Discipline Cross the Line to Become Child Abuse? CHILDREN'S LEGAL RTS. J., Fall 1997, at 18.

(16.) See Howard Davidson. What Lawyers and Judges Should Know About the Link Between Child Abuse and Animal Cruelty, 17 ABA CHILD L. PRAC. 60 (1998).

Howard A. Davidson is director of the American Bar Association Center on Children and the Law, located in Washington, D.C.