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A Coordinated Response to Child Abuse and Neglect: The Foundation for Practice
Office on Child Abuse and Neglect, Children's Bureau. Goldman, J., Salus, M. K., Wolcott, D., Kennedy, K. Y.|
|Year Published: 2003|
Chapter Eight: Which Laws and Policies Guide Public Intervention in Child Maltreatment?
Most Americans believe, and professionals agree, that parents are in the best position to nurture, protect, and care for the needs of their children. Although most parents are usually capable of meeting these needs, the State has the authority to intervene in the parent-child relationship if a parent is unable or fails to protect his or her child from preventable and significant harm. The purpose of this chapter is to present basic information about the Federal and State governments' power and authority to intervene into the private lives of families when child maltreatment is alleged. The first section reviews the Federal role in addressing child maltreatment, while the second section discusses the basis for State intervention in family life, highlights State child maltreatment reporting statutes, and describes the functions of civil and criminal courts.
The Federal Role in Addressing Child Abuse and Neglect
States initiated mechanisms to assist and protect children prior to any Federal-level activity. In 1912, the Federal government established the Children's Bureau to address these issues. Federal programs designed to support child welfare services and to direct Federal aid to families date from 1935, with the passage of the Social Security Act (SSA). Since State-supervised and State-administered programs were already in place, the child welfare policy of the SSA layered Federal funds over existing State-level foundations. These child welfare programs, thus, were new only to the extent that they established a uniform framework for administration.120 Congress has amended the Act several times and changed the Act significantly with the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Within the Federal government, the Children's Bureau and its Office on Child Abuse and Neglect (OCAN) serve as a focal point for efforts to respond to the problem of child maltreatment.
The basis for intervention in child maltreatment is grounded in the concept of parens patriae—a legal term that asserts the government's role in protecting the interests of children and intervening when parents fail to provide proper care. The legal framework regarding the parent-child relationship balances the rights and responsibilities among parent, child, and State, as guided by Federal statutes. It has long been recognized that parents have a fundamental liberty interest, protected by the Constitution, to raise their children as they choose. This parent-child relationship grants certain rights, duties, and obligations to both parent and child, including the responsibility of the parent to protect the child's safety and well-being. If a parent, however, is unable or unwilling to meet this responsibility, the State has the power and authority to take action to protect a child from significant harm.
A series of U.S. Supreme Court cases have defined when it is constitutional for the State to intervene in family life.121 Although the Court has given parents great latitude in the upbringing and education of their children, it has held that the rights of parenthood and the family have limits and can be regulated in the interest of the public. The Court has further concluded that the State, as parens patriae, may restrict the parent's control by regulating or prohibiting the child's labor, requiring school attendance, and intervening in other ways to promote the child's well-being.122 This doctrine has evolved into the principle that the community, in addition to the parent, has a strong interest in the care and nurturing of children, who represent the future of the community. When basic needs of children are not met or when their rights have been violated, as with cases of child maltreatment, the State has an obligation to intervene to assist the affected individuals.
Federal Legislation and Programs
Over the past several decades, Congress also has passed significant pieces of child welfare legislation that support the States' duty and power to act on behalf of a child when parents are unable or unwilling. Key Federal legislation that addresses the protection of maltreated children are highlighted below:
- The Child Abuse Prevention and Treatment Act (CAPTA) of 1974 (P.L. 93-247) was established to ensure that victimized children are identified and reported to appropriate authorities. The Act was most recently amended in 1996 (P.L. 104-235) and continues to provide minimum standards for definitions and reports of child maltreatment.
- The Adoption Assistance and Child Welfare Act of 1980 (P.L. 96-272) requires States to establish programs and implement procedures to support maltreated children and their families, in their own homes, and facilitate family reunification following out-of-home placements.
- Family Preservation and Support Services Program enacted as part of the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66) provides funding for prevention and support services for families at risk of maltreatment and family preservation services for families experiencing crises that might lead to out-of-home placement.
- The Adoption and Safe Families Act (ASFA) of 1997 (P.L. 105-89) was built on earlier laws and reforms in the field to promote the safety, permanency, and well-being of maltreated children. A component of ASFA is the Promoting Safe and Stable Families (PSSF) Program, which was developed from and expanded upon the Family Preservation and Support Services Program mentioned above. While the legislation reaffirms the importance of making reasonable efforts to preserve and reunify families, it also specifies instances where reunification efforts do not have to be made (e.g., when a child is not safe with his or her family), establishes tighter time frames for termination of parental rights, and promotes adoption initiatives.
- Child Abuse Prevention and Enforcement Act of 2000 (P.L. 106-177) focuses on improving the criminal justice system's ability to provide timely, accurate criminal-record information to agencies engaged in child protection, and enhancing prevention and law enforcement activities.
- Strengthening Abuse and Neglect Courts Act of 2000 (P.L. 106-314) was designed to improve the administrative efficiency and effectiveness of the courts' handling of abuse and neglect cases.
- Promoting Safe and Stable Families Program Reauthorization of 2002 (P.L. 107-133) continued to build upon ASFA by extending the PSSF for an additional 5 years and increasing discretionary funding. It also created several new programs including a new state grant program that provides education and training vouchers for youth aging out of foster care and a mentoring program for children with incarcerated parents.
These and other pieces of legislation also provide for a variety of funding streams—particularly State grant and discretionary grant programs—which support prevention and treatment services for children and families.
The Children's Bureau, an agency within the Administration for Children and Families (ACF), Administration on Children, Youth and Families, U.S. Department of Health and Human Services, is the focal point for Federal efforts to address the problem of child abuse and neglect. The Children's Bureau's mission is to provide for the safety, permanency, and well-being of children and families through leadership, support for necessary services, and productive partnerships with States, Tribes, and communities. The Children's Bureau fulfills this mission through its Office on Child Abuse and Neglect (OCAN) and its five divisions:
- OCAN provides leadership and direction on the issues of child maltreatment and the prevention of abuse and neglect as directed by CAPTA and the Children's Justice Act. Also, OCAN is the focal point for interagency collaborative efforts, national conferences, and special initiatives related to child abuse and neglect.
- The Division of Child Welfare Capacity Building provides leadership and direction in the areas of training, technical assistance, and information dissemination as directed by Titles IV-B and IV-E of the Social Security Act (SSA) and CAPTA.
- The Division of Policy provides leadership and direction in policy development and interpretation as directed by Titles IV-B and IV-E of SSA, the Basic State Grant (BSG), and CAPTA.
- The Division of Program Implementation provides leadership and direction in the operation and review of programs as directed by Titles IV-B and IV-E of SSA, CAPTA, and BSG.
- The Division of Data, Research, and Innovation provides leadership and direction in program development, innovation, research, and management of the Bureau's information systems as directed by Titles IV-B and IV-E of SSA and CAPTA.
- The Division of State Systems provides leadership and direction to States in the development and operation of automated systems, including all Statewide Automated Child Welfare Information System (SACWIS), to support welfare programs under Titles IV-B and IV-E of SSA.
While this discussion focuses primarily on activities related to child protection and the "front end" of the child welfare system (e.g., prevention, investigation, assessment, and service planning), the Children's Bureau also oversees activities and programs related to foster care, permanency planning, adoption, and other "back end" child welfare issues.
Selected Child Maltreatment State Grant Programs
The following are selected, legislatively mandated child maltreatment or child welfare grant programs available to State entities that meet certain eligibility requirements:
- Basic State Grants provide funds for States to enhance their child protective services (CPS) systems and to develop and strengthen child maltreatment prevention, treatment, and research programs.
- The Community-Based Family Resource and Support (CBFRS) Program supports the development of comprehensive networks of community-based, prevention-focused family resource and support programs.
- Children's Justice Act (CJA) Grants help States to develop, establish, and operate programs designed to improve the investigation and prosecution of child abuse and neglect cases, particularly cases of child sexual abuse and exploitation, and fatality cases.
- Child Welfare Services assist State public welfare agencies in delivering child welfare services (including preventive interventions, alternative placements, and reunification services) with the goal of keeping families together.
- Promoting Safe and Stable Families Program (formerly called the Family Preservation and Support Services Program) supplies funds to States to provide family support, family preservation, time-limited family reunification services, and services to promote and support adoptions. These services are aimed at preventing the risk of abuse as well as promoting nurturing families, assisting families at risk of having a child removed from the home, promoting the timely return of a child to his or her home, and, if returning home is not an option, placing a child in a permanent setting with services that support the family.
The Office on Child Abuse and Neglect convenes a Federal Interagency Work Group (FEDIAWG) on Child Abuse and Neglect that provides a forum for collaboration among Federal agencies with an interest in child maltreatment. The FEDIAWG shares information, makes policy and programmatic recommendations, implements joint activities, and works toward establishing complementary agendas in the areas of training, research, legislation, information dissemination, and delivery of services as they relate to the prevention, intervention, and treatment of child abuse and neglect.
In addition to the Children's Bureau, several other Federal agencies support programs and research and demonstration initiatives related to child maltreatment and child protection. For example, the Child Protection Division within the Office on Juvenile Justice and Delinquency Prevention (OJJDP), U.S. Department of Justice, conducts research, provides training and technical assistance, and supports demonstration programs that address child victimization and missing and exploited children. Several agencies within the U.S. Department of Health and Human Services—including the National Institutes for Health (NIH), Centers for Disease Control and Prevention, Maternal and Child Health Bureau (MCHB), Health Resources and Services Administration (HRSA), and the Substance Abuse and Mental Health Service Administration (SAMHSA), to name a few—conduct research and support service delivery on the identification, prevention, and treatment of child maltreatment as well as risk factors and consequences.
Basis for State Intervention
States must comply with the child abuse and neglect guidelines mandated under CAPTA in order to receive Federal funds. Beyond that, however, States generally have autonomy in how services are provided to maltreated children and their families. All States have enacted child maltreatment laws that play a significant role in reporting and intervening in cases of child abuse and neglect. In order to enforce these laws, civil and criminal courts often must intervene in the lives of families when parents are unable or unwilling to provide for the safety and well-being of their children.
State Reporting Statutes
Many States define the parent-child legal relationship in their State statutes. These statutes define who is considered a "parent" (birth or adoptive parent) or other caregiver and indicate that the law imposes rights, privileges, duties, and obligations on this relationship. As noted above, the State has the authority to intervene in this relationship if the parent fails to provide for or protect the child. The State's intervention into family life is often triggered by a report of child maltreatment by a voluntary or mandated reporter as defined by State law under the CAPTA requirements.
Through mandated reporting statutes, the State requires certain individuals, typically defined by profession (e.g., health care professionals), to identify and help protect children from harm. These statutes also include definitions of the acts and omissions considered abuse and neglect in a particular State. Reports of suspected maltreatment, which are required under such laws, activate the child protection process. Currently, all States, the District of Columbia, and U.S. territories have enacted statutes requiring that the maltreatment of children be reported to a designated agency or official. Reporting laws generally specify the conditions under which the State may intervene in family life. (See Chapter 9, "What Does the Child Protection Process Look Like?", for more information about reporting of maltreatment and child protection procedures after a report has been made.)
Child Protective Service Agency
State legislation mandates that CPS agencies respond to reports of alleged child maltreatment and children at risk of maltreatment, determine the safety of the children who are the subject of the report, and decide what initial response is needed. Intervention into family life on behalf of children must be guided by the legal basis for action and sound family-centered practice.123 While CPS agencies are at the center of the child protection system, an array of service providers and community professionals collaborate to protect children and support families. (See Chapter 10, "Who Should Be Involved in Child Protection at the Community Level?", for further information about the roles and responsibilities of various community practitioners in child protection.)
Civil Court Intervention
Family and juvenile courts have the authority to make decisions about what happens to a child after he or she has been identified as needing the court's protection. The courts' involvement is initiated by the filing of a petition, usually by CPS, containing the allegations of abuse or neglect. The primary purpose of these courts is to resolve conflict and otherwise intervene in the lives of families in a manner that promotes the best interest of the child. The court is responsible for making the final determination about whether a child ought to be removed from his or her home, where a child is to be placed, or whether to terminate parental rights. In cases of child maltreatment, family and juvenile court intervention may be required when:
- Families refuse to cooperate after an initial assessment has determined that an incident of abuse or neglect has occurred;
- The child is determined to be in imminent danger of harm and the child's safety cannot be assured in the home through services provided to the family;
- Families are unwilling to accept needed services, yet maltreatment exists and the safety of the child is a concern.
There are four types of court hearings held in family or juvenile courts when abused and neglected children are involved:
- Emergency hearings are convened to determine the need for intervention on behalf of, or emergency protection of, a child who may have been a victim of maltreatment.
- Adjudicatory hearings are held to determine whether a child has been maltreated or whether some other legal basis exists for the State to intervene to protect the child.
- Dispositional hearings are convened to determine the action to be taken on the case after adjudication, for example, whether State custody and out-of-home placement is necessary and what services the children and family will need to reduce the risk of maltreatment and to address the effects of maltreatment.
- Review hearings are held to review the dispositions and to determine the need to continue out-of-home placement, services, or court jurisdiction of a child.
One of the most drastic options available to a juvenile or family court judge is the termination of parental rights. Parental behaviors that may lead to such action are usually defined in State statutes. The parent-child relationship may be limited or ended, thus making the child eligible for temporary or permanent placement or adoption, when a parent:
- Abandons the child;
- Has a long-term mental illness or deficiency;
- Severely or chronically abuses or neglects the child or other children in the household;
- Has a long-term alcohol or drug abuse problem;
- Fails to support or maintain contact with the child.
Parental rights are not terminated simply because a person is not a model parent. In all States, parental rights can be terminated only if the State can prove by clear and convincing evidence that a parent has failed to provide for or protect the child in one of the ways defined in a State's statutes. Most State statutes also contain provisions for parents to voluntarily relinquish their rights. In addition to temporarily placing children in out-of-home care, the State has the authority to return a child to his or her parents. Children may return home once a determination is made that they will be safe and that their parents will be able to provide the appropriate care.
Criminal Court Intervention
Depending on State law, behavior that constitutes child abuse and neglect in the civil court process may also be considered a crime. Each State has enacted criminal statutes that define those forms of child abuse and neglect that are criminally punishable. In most jurisdictions, child maltreatment is criminally punishable when one or more of the following statutory crimes have been committed:
- Homicide, murder, or manslaughter
- False imprisonment
- Assault or battery
- Criminal neglect and abandonment
- Emotional, physical, or sexual abuse
- Pornography or child prostitution
- Rape or deviant sexual assault
- Indecent exposure
- Child endangerment or reckless endangerment
The same family may be simultaneously involved in both a criminal and civil case. Criminal prosecution, however, is directed at deterring future incidents and rehabilitating the defendant rather than ensuring the safety of the child. In a criminal case, the burden of proof—beyond a reasonable doubt—is higher than in a civil case and the rules of evidence are more stringent.
Responsibility for investigation of crimes related to child abuse and neglect rests with law enforcement agencies and the district attorney or local prosecutor. They are vested with the responsibility for deciding under what circumstances prosecution of perpetrators of child abuse and neglect will occur. Criminal courts serve to protect victims and the public from offenders and to rehabilitate those who break the law.
The defendant in a criminal case is entitled to full protection guaranteed by the Fourth, Fifth, and Sixth amendments to the U.S. Constitution. These protections include the right to a jury, the right to cross-examination, the right to appointed counsel, and the right to a public and speedy trial. Criminal prosecution may result in such penalties as probation or incarceration.
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