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7. Other Court Actions Involving Maltreated Children
Child Maltreatment Alleged in Domestic Violence Cases
Sometimes allegations of child maltreatment will arise in the context of a domestic violence case where spouse abuse or another intrafamily offense is claimed. When an adult member of a family is abused, the children in the home are often abused as well.60 Moreover, a child may suffer significant emotional harm from witnessing the battering of his/her parent.
All States have laws allowing abused persons to obtain orders of protection in a civil proceeding. A protection order is a court directive designed to prevent family violence by imposing certain restrictions or requirements on the abuser. This may be in force even before the case is brought to the attention of the CPS caseworker or, where the victim/spouse is fully cooperative, it may be used as an alternative to bringing a criminal, domestic relations, or juvenile court case.
Specifically, a protection order may require that the abuser move out of the victim's home, refrain from abusing the victim, avoid all contact with the victim, participate in treatment or counseling, or pay the victim support. However, all of these remedies are not available in every State. In many States, other remedies may be ordered as well. It is also not unusual for courts to have the authority to impose additional terms or conditions which it deems necessary for the victim's protection.
While a protection order is one important tool to prevent domestic violence, it may present a number of enforcement problems. Once an order is violated, it may be too late to protect the victim. Any consequences the abuser may feel will only be experienced after the damage has been done. Moreover, studies have shown that law enforcement officers are often reluctant to become involved in family matters by enforcing protection orders. This problem, however, has been addressed in a growing number of jurisdictions by requiring that officers receive special training in handling domestic calls.
Tort Suits Against Parents and Other Perpetrators
Some States allow maltreated children to sue their parents in private civil lawsuits for financial compensation. A child may have a legal claim against his/her parent for physical or sexual abuse or even possibly for emotional abuse. In most States, parents have the right to use physical force on their children as a form of discipline or punishment. This right, however, is limited to reasonable force. If a parent's conduct is unreasonable, it may be considered assault or battery by the courts. When determining whether a punishment is reasonable, a judge will look at the conduct being punished, the child's age, the injury caused, and other relevant factors. Children have also been permitted to sue their parents for intentional emotional harm.61
Each State has a specific time period, usually 2 to 3 years, during which a legal claim must be filed. These legislatively created time limits are called statutes of limitations. When the person bringing a lawsuit is a child, the time period usually does not begin until he/she reaches the age of majority.62
Suits Against Agencies or Other Institutions for Alleged Failure to Protect a Child From Abuse
If an agency fails to investigate or intervene to protect a child when there is reason to suspect abuse or neglect, that agency could be sued in a civil court action. A child who is injured at home or in foster care may sue on his/her own behalf through a guardian.
The targets of these suits are generally the individual caseworker, his/her supervisors, and the State and/or local child welfare agency. The action usually seeks financial compensation for injuries suffered by the child which were caused, allegedly, by the defendants' negligence (i.e., their failure to adequately protect the child) or willful misconduct. The Supreme Court ruled in the DeShaney63 case that a child does not have a Federal constitutional right to be protected by the State from abuse, even when the State or county child welfare agency has reason to believe that that child is in danger. However, this ruling applies in Federal courts only and does not prevent State courts from finding that, under the facts of a particular case, the State owes a duty to the child in question. The DeShaney case also does not apply to abuse that occurs once the child is in the State's custody.
In some States, caseworkers and State or local agencies are given at least partial governmental immunity (protection) from being successfully sued in civil court. Immunity is most often given for acts of negligence and not for purposeful, intentional harm.
Class Action Suits Seeking Declaratory or Injunctive Relief
When agency misconduct or inaction is on a broader scale, a group or class of interested individuals may bring a class action. These actions usually claim agency problems such as violations of Federal law, understaffing, or failure to provide adequate services or treatment. The remedies sought in class actions against agencies are usually not awards of money to individuals, but are declaratory or injunctive relief.
Declaratory relief is a statement (declaration) by the court that identifies the rights of and resolves the issues between the parties. This statement is issued by court order, which is binding on all parties.
Injunctive relief is a directive, also issued by court order, forbidding or requiring the defendants to take certain action. This type of court intervention is often used in an attempt to improve the working of the child welfare system rather than to compensate particular victims. Sometimes these cases are settled by detailed consent decrees that enumerate actions the child welfare agency will take in the future.
Child Abuse Related Cases Heard in Federal Court
Remedies for Sexually Exploited Children Under Federal Child Sexual Exploitation Laws
Under Federal law, the production, distribution, and interstate or international transportation of pornographic material involving children, as well as the transporting of a child across a State line for the purpose of committing an unlawful sexual act, are crimes. The possession of three or more pieces of sexually explicit material depicting a child has also recently become a crime. When a person violates these Federal child sexual exploitation laws, not only can he/she be criminally prosecuted in the Federal courts, but he/she may also be sued by the child victim for civil money damages. A child with personal injuries caused by a violation of these Federal laws may recover at least $50,000 from the offender, plus the costs of bringing the suit and his/her attorney's fees.64
Other Federal Cases
Certain child abuse cases are heard in Federal court only. These involve the violation of some Federal statutes, such as the Federal child sexual exploitation laws, or a crime committed on Federal land such as military reservations or national parks. Also, any civil suit seeking more than $10,000 in damages where the parties are from different States may be brought in Federal court (e.g., those compensatory lawsuits described in the section on "Tort Suits Against Parents and Other Perpetrators"), as may suits in which the plaintiff alleges a deprivation of his/her Federal rights.
Court Actions Involving Native American Children (The Indian Child Welfare Act)
Under a Federal law called the Indian Child Welfare Act,65 child welfare proceedings that involve Native American children are treated differently from other child welfare cases. If the child lives on a reservation, his/her case must be decided by tribal courts (instead of State courts). Cases involving many Native American children who do not live on the reservation can be transferred to the tribal courts. These children must actually be enrolled as a member of an Indian tribe or be eligible for membership and have a biological parent who is a tribe member.
When a foster care placement or termination of parental rights proceeding for a Native American child are brought before the State courts, that child, his/her Native American custodian, and his/her tribe have the right to intervene or become involved as parties. This enables them to request that the case be transferred to the Indian tribal court. The child's parents (or Indian custodian) and his/her tribe are also entitled to notice of the State court action, so that they can appear and respond to the charges or intervene and request a transfer if appropriate. This notification requirement is enforced very strictly by the courts, and a case may even be dismissed if it is shown that proper notice was not given to those who were entitled to it under the law.
Before a Native American child may be removed and placed in foster care, active efforts must be made to keep the family together. Once the judge has found that these efforts have failed, he/she must then decide whether continued custody by the parent would cause the child serious harm. (See "Termination of Parental Rights Hearings/Standard of Proof" for explanation of burden of proof in other civil termination of parental rights cases.)
The standard or burden of proof in a termination of parental rights case involving a Native American child is higher than in most termination cases heard in State courts. The evidence must show beyond a reasonable doubt that continued parental custody would be likely to cause the child serious harm.
When a Native American child is placed in foster care, certain preferences must be followed: the child's extended family, his/her tribe, and other Native American families or foster homes (in that order) have priority over others in determining placement.
In 1990, Congress enacted the Indian Child Protection and Family Violence Act (Public Law 101-630, Title IV, 104 stat. 4544). This Act, among other things, authorizes Federal funds to the Bureau of Indian Affairs for a variety of purposes, including to help tribes establish CPS programs and develop multidisciplinary child abuse investigation and prosecution teams.
Military Cases
For several decades, the military has been seriously addressing the problem of child abuse and other forms of family violence. The Department of Defense has clearly identified the prevention of child abuse as a priority and has encouraged cooperation between military and civilian authorities.66
Military courts have jurisdiction over active Service members, but will only handle offenses that occur on a military base or naval vessel or are otherwise Service-connected.67 When abuse occurs outside the military base (for example, when a military family lives in civilian housing), the Service member will be subject to civilian court jurisdiction and may, therefore, be tried in State courts.68 A child abuse or neglect case in the military will generally proceed in a manner similar to that in a civilian court. Nevertheless, it important to realize that military courts have their own rules and procedures which may, at times, differ from civilian courts. For further information on the procedures followed by the military community, see another manual in this series entitled Protecting Children in Military Families: A Cooperative Response.
Coordination of Criminal and Civil Cases Involving the Same Child and/or Family
Sometimes, when a child has been abused, that child and his/her family will be involved in several court proceedings simultaneously. A divorce-related custody dispute and a child protection matter may both concern the same instances of child maltreatment; a criminal charge may be filed at the same time that child protection matter is being heard in juvenile court. These actions should be coordinated. The parties and judges in each separate action should keep informed of the steps taken by the other courts with jurisdiction over the family, and timetables should be synchronized for all proceedings. It is especially important for the prosecutor in a criminal case to understand decisions made in civil court with respect to the child's placement. This may affect the child's ability to testify at the criminal trial or even to aid the prosecutor in the preparation of the case.
Specifically, criminal and civil cases can be coordinated by:
- synchronizing investigations by law enforcement and child protective services agencies;
- coordinating pretrial orders regarding contact or prohibiting contact between the suspected abuser and the child;
- coordinating dispositional and sentencing options sought by the petitioner (in a civil case) and the prosecutor (in a criminal case); and
- setting up guidelines for when a child abuse or neglect case should be referred to the police.69
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