3. The Court System and Child Abuse and Neglect
Deciding Whether to Go to Court
In civil child protection cases, the decision to go to court is usually made by the child welfare or protection agency (often in consultation with the agency's attorney) or by a court employee known as an intake officer. Criminal cases are initiated at the discretion of the prosecutor, who (if a family member is to be charged with a crime) will hopefully talk to the child's caseworker before making the ultimate decision to prosecute.
The decision to go to court (either civil or criminal) with a case of intrafamilial child maltreatment is a complex one. The benefits of court protection against, and punishment of, someone who has mistreated a child must be balanced against the potential disruption of the parent'child relationship. Rehabilitation of this relationship might be best achieved through means other than court intervention, and this should be taken into consideration when determining whether court action is appropriate.5
There are two basic questions to ask when deciding whether to initiate a court proceeding to remove a child, provide in-home protective supervision, or compel treatment:
- Is the child in clear danger of significant harm?
- Can the child's safety be maintained by providing help to the family without court proceedings?
Other factors may also be relevant when deciding whether to go to court, including:
- parental incapacity to care for a child (e.g., incarceration or mental or physical illness);
- need for control over the alleged abuser (i.e., a pending court case may be useful as leverage for a CPS caseworker to obtain the abuser's cooperation, or a court order may keep the abuser away from the child for a period of time); and
- need for treatment that is available by court order only.6
The likelihood of winning a case may also be a consideration in making this decision, particularly in criminal cases. However, if a child is in danger, a civil child protection petition may be appropriate regardless of the strength or weakness of the available evidence. Because of the wide range of ethnic, social, and economic differences that exist among families where child maltreatment occurs, it is essential for those intervening in the lives of such families to maintain a sensitivity to the cultural norms of each family. Caseworkers, child welfare agencies, and courts are charged with protecting children from abuse and neglect; they are not, however, entitled to use the court to impose their own values and standards of child rearing on others. Thus, in deciding whether court intervention is necessary to protect a child, cultural differences must be kept in mind.
Child welfare and CPS caseworkers often voice concern that they will be sued if they initiate a child protection proceeding. While they may be sued, it is extremely unlikely that they will lose. The decision to go to court is essentially a matter of the caseworker's discretion. So as not to discourage them from bringing child protection actions, both Federal and State courts have granted the petitioners in these cases immunity from liability. In some jurisdictions, the immunity is absolute, meaning that regardless of his/her conduct or motive for seeking court intervention, the petitioner will not be held liable. In other jurisdictions, the immunity is limited or qualified, allowing liability to be imposed in extreme cases, such as when the decision to go to court was made in bad faith (i.e., maliciously or for some grossly improper reason). As of this writing, no child welfare or CPS caseworker has ever been found liable for his/her decision to file a maltreatment petition.
Rights of Parents and Children in Judicial Proceedings
The court system accords both parents and children certain legal rights, depending on the type of proceeding in which they are involved.
Rights to Family Integrity and "Reasonable Efforts"
Public policy has long recognized that there is a right to family integrity, and courts have deemed it constitutionally protected as a fundamental right.7 The right to family integrity includes not only parents' rights to raise their children as they see fit, but also a family's right (which belongs to both parents and children) to remain together without State interference. Of course, this right is not absolute. A State may restrict the right to family integrity (for example, by removing a child from the home) if it is justified by a compelling State interest, such as the need to protect children from significant harm.8 A closely related requirement in Federal law is that the State child welfare agency must make reasonable efforts to keep a family together or, if the child has already been removed under emergency circumstances, to reunify that family for a State to be eligible for certain Federal funding.9 In addition, many State legislatures mandate that the agency make efforts to prevent the need for placement (except when not possible due to an emergency).
Right to Proper Notice of the Proceeding
Parents have the right to be notified of any abuse or neglect proceeding that involves their child. This right applies not only to parents who actually care for and reside with their child, but to those exercising visitation rights as well. Although locating a parent can sometimes be very difficult, a judge will require that sufficient efforts be made to notify each parent before proceeding without him/her. Even if a parent cannot be notified and the original proceeding takes place without him/her, the court has the power to grant a rehearing at that parent's request, as long as he/she did not willfully refuse to attend in the first place. Another protection of the parent's right to notice is the judge's option to make only preliminary findings without the parent present, which will become final later if that parent still fails to appear.10
Exceptions to the general parental notice requirement are emergency custody orders, which may be made without advance notice to parents. However, within a few days of any emergency custody order, the parents should be notified and another hearing held to review the initial removal decision.
Other persons may also be entitled to notice of a child protection proceeding. Generally, putative (i.e., unmarried, biological) fathers should be notified. This protects any constitutional rights that arise out of their biological relationship with their children, as well as preserves a possible option for child placement. Most important, notice to putative fathers ensures that the relationship between them and their children will be clarified early in the court process.11
A relative or other person who has cared for the child may also be entitled to notice, even if that person never had custody of the child. Depending on the State, a judge may have the discretion to require the notification of the child's psychological parent (i.e., any person with whom the child has a bond that is emotionally equivalent to a parent'child relationship).12 For example, a grandparent who has raised his or her grandchild, even if the child's biological parent never formally relinquished legal custody, may have the right to be notified of an abuse or neglect proceeding involving that child.
Right to a Contested Fact-Finding Hearing
Except in an emergency, a child cannot be removed from his/her home, and parents cannot be labeled as abusive or neglectful by a court or be ordered to participate in counseling, without an in-court hearing (unless the parties have agreed or stipulated otherwise). This hearing gives parents an opportunity to oppose the removal and requires the State to present evidence showing that the child is abused or neglected. If removal of the child is sought, the State or county may also have to establish whether reasonable efforts had previously been made to keep the family together. At the hearing, the burden of proof is on the State or county to show that the child has been maltreated. (See "How Much Evidence Is Required?")
Right to Counsel, Guardians Ad Litem, and Court-Appointed Special Advocates
While most States give indigent parents a right to free court-appointed counsel in abuse or neglect cases, not all States do. The Supreme Court held in the Lassiter 13 case that parents have a constitutional right to a lawyer in at least some termination of parental rights cases, depending on the circumstances of the particular case.
As was mentioned earlier in the Gault 14 case, when a child is accused of a crime, he/she has a right to an attorney under the Constitution. However, when the child is the subject of an abuse or neglect proceeding or a termination of parental rights case, his or her right to a lawyer varies from State to State.
Nearly every State requires that a lawyer or a guardian ad litem (or both) be appointed for a child in the proceedings. In fact, Federal law conditions States' eligibility for certain grants on meeting these requirements. (However, these requirements are not always fulfilled, especially not in all stages of a case.) In some States, guardians ad litem are not required to be lawyers. Nonattorney guardians ad litem, sometimes known as court appointed special advocates (CASA's), may be professionals trained in other disciplines such as social work or psychology or may be nonprofessional citizen volunteers.
The type of representation a child receives varies, depending on the State. In addition, the duties performed by that representative vary from State to State. The guardian ad litem may perform a variety of roles, including those of independent investigator, advocate, and advisor to the child. If the same child is involved in more than one court proceeding (e.g., a child protection case and a criminal case), the guardian ad litem may also serve the important purpose of bridging the gap between the various courts. Where both an attorney and a lay advocate are used, the two may, and hopefully will, work as a team to perform these various functions cooperatively.15
A guardian ad litem who is an attorney or who works with an attorney may be faced with conflicting roles. As a lawyer, he/she has an obligation to advocate zealously for his/her client's (i.e., the child's) position. When representing a child as a guardian ad litem, however, the lawyer may also be required to investigate the facts objectively and to advance his/her own view of what is in the child's best interests. For example, an abused child may insist to his/her guardian ad litem that he/she wants to return home to parents who, in the guardian ad litem's opinion, still pose a serious threat to him/her.
The National CASA Association urges that all CASA programs include adequate access to legal counsel for the CASA volunteers. For example, in North Carolina trained and supervised volunteer guardians ad litem are available through the courts, and specialized attorneys are chosen in the various counties to advise and assist these volunteers. Under this type of system, CASA volunteers are assured of having access to sufficient legal expertise.
Right to Confrontation and Cross-Examination
It is important at this point to distinguish between the nature of criminal proceedings and civil proceedings. In criminal cases, the suspected abuser is the "accused"; it is the criminality of his/her conduct that is on trial. However, in civil child protection cases, the abuser is not the focus of the proceeding; it is the status of the child (i.e., whether the child is abused or neglected). The State/county and court do not need to identify the abuser. Because of this basic difference, the existence of (and degree of protection given to) a suspected abuser's right to confront and cross-examine is often clearer in criminal cases.
When a case involving child maltreatment claims is brought to court, the suspected abuser may have the sixth amendment right to confront that child in court. This is most likely to occur in criminal cases. In civil cases in some States, the fifth amendment's due process clause requires confrontation.
Due to the special nature of child maltreatment and the sensitivity of its alleged victims, the right to confront is weighed against the possible trauma that the child might experience by testifying in the presence of his/her alleged abuser. Concerns for the child victim have encouraged the increasingly common practices of admitting as evidence prior testimony of the child or permitting the child to testify outside the accused's presence via closed-circuit television. While these practices protect the child, they obviously deny the accused, to some extent, the opportunity to face his/her accuser.
The Supreme Court has now addressed this issue in the criminal context. In the Craig 16 case, the Supreme Court decided that the confrontation right of a criminal defendant was not violated by allowing a child victim to testify and be cross-examined outside the accused's presence by closed-circuit television. However, before this may be permitted, the judge must find that such a procedure is necessary to protect the child. (See "Constitutional Challenges to 'Special Treatment' for Child Witnesses.")
In civil child abuse and neglect proceedings, which may result in consequences generally thought to be less serious to the parent than in criminal cases (i.e., no incarceration), judges have exercised broader discretion in permitting protective testimonial aids for children. However, even in civil proceedings, some judges are reluctant to deny suspected child abusers their confrontation rights in light of the profound impact a finding of abuse and neglect will probably have on their lives.
As with the use of closed-circuit television and videotapes, the admission of hearsay evidence sometimes presents constitutional problems. Hearsay is a statement made outside the courtroom that is presented in court by someone other than the original speaker. When someone else repeats a child's out-of-court statements, this does not allow for face-to-face confrontation of the child by the accused. Nevertheless, this is sometimes permissible when the statement is found to be sufficiently reliable. (See the section describing the Hearsay Rule in a subsequent chapter in the manual entitled "Proving Child Maltreatment in Court" for a partial list of circumstances considered to be relevant to a statement's reliability.)
Right to a Jury Trial
In civil child protection cases, parents are only entitled to a jury trial in a few States. In contrast, in any criminal case involving child maltreatment, the defendant has a constitutional right to a jury trial.
Right to a Public Trial
The right to a public trial is normally associated with criminal cases, and even in these cases, limited exceptions are allowed on a case-by-case basis during the child's testimony. This right, however, does not apply in civil child protection proceedings. In child protection cases, the courtroom may not be open to the public, and the court records are kept confidential in nearly every State.
General Powers of the Court
To facilitate the litigation of the cases they hear, judges have certain powers that are especially helpful in child abuse or neglect matters.
Power to Compel Testimony
A judge has the authority to compel the appearance of a witness in his/her courtroom and to require that witness to testify. To enforce this authority, the judge also has the power to hold an uncooperative witness in contempt of court, which means the witness can be jailed or fined (or both) until he/she cooperates. The power to compel testimony, however, is limited by a number of constitutional and statutory protections.
The fifth amendment's privilege against self-incrimination is perhaps the broadest of these restrictions. Under the fifth amendment, witnesses may not be forced to testify against themselves in criminal proceedings or to provide any information that might tend to subject them to criminal liability in the future. Accordingly, even in civil child abuse and neglect cases, a parent or other alleged abuser will be permitted to "take the fifth" if there is a real possibility that a criminal prosecution may occur. To avoid this, the court may grant use immunity to a witness in a civil child protective proceeding, which prevents his/her testimony from being used against him/her in any future criminal case. Use immunity is a particularly helpful tool for a civil court judge whose goals may be the securing of rehabilitation and treatment for family members, and who needs as much input and cooperation as possible from an alleged offender and other family members to reach these goals. Once this immunity is granted, the parent can be compelled to testify.
In the Bouknight 17 case, the Supreme Court restricted the use of the fifth amendment's privilege against self-incrimination in a civil child protection proceeding under very specific circumstances. The Court ruled that a parent whose custody rights have been limited under a previous court order may not later refuse to tell the judge the child's whereabouts. In such a situation, a parent does not have a privilege against self-incrimination and may be compelled to reveal the location of his/her child.
Witnesses may also decline to testify concerning certain confidential communications which they have had. Depending on State law, conversations with professionals such as doctors, social workers, and lawyers may be considered privileged, and, if so, their contents are not disclosable without permission of the patient or client. The purpose of this rule is to encourage those who seek professional assistance to interact freely and openly with their service providers, without fear of public exposure or legal repercussions.
In many States, these privileges are eliminated or limited by law in child abuse and neglect cases. Statutes that remove privileges vary from State to State: some eliminate the privilege for reporting purposes only, while others admit evidence of privileged material at trial; some pertain only to civil proceedings, while others apply to criminal matters as well. The relationship of the professional to his/her patient or client may also be significant in determining whether a statutory waiver of privileged communications applies. For instance, a court-appointed psychologist generally will not be bound by privilege, since he/she was appointed for the very purpose of reporting to the court. However, a psychologist with a pre-existing therapeutic relationship with the accused may be prevented from revealing the contents of his/her conversations with the patient. (See the section on privileged communications in a subsequent chapter in this manual entitled "Proving Child Maltreatment in Court.")
Power to Subpoena Documents and Records (Subpoena Duces Tecum)
The court also has the power to compel individuals or organizations to produce documents and records for use in court. For example, a hospital may be required to provide its records on a certain child to the court, or a caseworker may have to submit his/her case file.
Power to Assist CPS When Investigative Barriers Exist
Even before a petition has been filed, the court may have additional powers to assist child welfare agencies during the investigative stage of a child maltreatment case. CPS caseworkers often face seemingly insurmountable barriers to their investigations into suspected child abuse or neglect. These obstacles include inability to gain access to the child, to his/her home, or to relevant information in the possession of third parties (e.g., school officials). Some States have statutorily authorized court-ordered investigative interviews and physical examinations of children, entry into the home, and access to third party records, upon a showing to the court cause, good cause, or probable cause (depending on the State) for this type of remedy.18 Cause sufficient to justify court intervention might arise in any number of situations. For instance, cause might be found for an order allowing a caseworker access to a child's medical records if the child's doctor refuses access without parental consent, the parents will not consent, and the child claims that his/her recent injury, treated by that doctor, was inflicted by the parent. An order compelling a physical examination of a child might be deemed warranted if a day care provider reports that, based on observations of the child's genital area during diaper changes, he/she suspects that the child is being sexually abused at home; however, the parent refuses to permit the child to be examined by a doctor.
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