Module 3 Discussion Problem
Traynae
Child_Protection_--_final_Module_3.pptChild Protection and State Intervention
Parents have the right to raise their children as they see fit. These rights are not absolute and are subject to state regulation designed to protect a child’s health, safety and welfare. These competing interests put parental rights directly in the path of governmental intervention when the parent’s conduct constitutes child maltreatment (abuse), child neglect or child abandonment.
Primarily, there are three governmental systems designed to respond to allegations of child maltreatment and neglect:
1. Criminal law: punishes parents for acts of child maltreatment & neglect.
2. Civil law:
A. Provides rehabilitative services to remediate parenting defects while protecting the child from further harm and/or;
B. Compensates child for injuries suffered (civil court)
3. The social service child welfare system which frequently provides services without the necessity of judicial intervention.
(We will focus the civil child protection system – 2(A) above.)
Child Protection and State Intervention
Discovering Abuse and Neglect: Reporting Statutes
By 1967, all states enacted a reporting statute, making it the law to report child abuse. States vary with regards to who must report, what must be reported, penalties for failure to report and civil liabilities to reporting.
State Reporting statutes often identify “mandatory reporters” and “discretionary reporters” and frequently provide penalties for failure to report child abuse.
The Child Abuse Prevention, Adoption and Family Services Act of 1988 defines maltreatment as:
“the physical or mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child by a person who is responsible for the child’s welfare, under circumstances which indicate that the child’s health or welfare is harmed or threatened.” text p.291
Child Protection and State Intervention
Figure 4-2 What Happens to Reports of Possible Maltreatment Once They are Received by Child Protective Services text pg. 293
Valmonte v. Bane – Valmonte had been accused of child abuse because she slapped her daughter in the face with an open had. Her name was subsequently placed on a state maintained a Central Registry for people accused of child abuse. The court found this to implicate a violation of a liberty interest under the fourteenth amendment due process – meaning that because of her name being placed on this Central Registry, that prejudicial or unequal treatment would unjustly result
The court stated that the standard of evidence, “some credible evidence,” was too low and that resulted in placement on the list of persons who did not belong there
Preponderance of the evidence, or greater weight of the evidence, should be the standard used
Child Protection and State Intervention
Problem 4-1 pg. 305
The teacher is required to report abuse, but is this abuse?
Parents are allowed to use corporal punishment, but not excessive corporal punishment.
The child was not hit on the head or some other sensitive area, but rather was hit with an open hand on a fully covered buttocks.
The strength of the blow seemed excessive, but the incident was some distance away from school property – does this matter? Are there rules against corporal punishment on school grounds?
The principal may want to get help from the school nurse or principal to determine whether the child was injured by the blows
Many school districts instruct teachers to report suspected abuse to the principal, who decides whether the incident qualifies as abuse reportable to authorities. Teachers, social workers and other healthcare professionals are frequently identified as “mandated reporters” of child abuse complaints.
Child Protection and State Intervention
LIMITATIONS ON INTERVENTION
The state’s right to intervene to protect children is limited by the parent’s rights to the care and custody of their children (text. Pg 309)
What does that state have to show to remove a child from their parents for abuse and neglect?
In Re Knowack – The court held that in the same way the court intervened to remove the children from parental control, the court can also intervene to restore the children to the parents care. The children must be returned to their parents based on “public policy and every consideration of humanity.” (text pg. 311)
The court states, “Intemperate parents are deemed to be unfit custodians of their children, and the state steps in and cares for them for the time being.
Child Protection and State Intervention
In Re Juvenile Appeal – The mother in this case claimed that the temporary custody statute that allowed the state to remover her children was unconstitutional because it violates her rights to her family integrity.
The state has a substantial interest in protecting minor children; intervention in family matters by the state is justified, however, only when such intervention is actually, “in the best interest of the child.” (text pg. 314)
The court found the statute constitutional because the state must show a compelling interest before removing children from their home. The statute requires that the state use other, less drastic means when possible and provides that removal is allowed only “when necessary to insure the child’s safety.” Child removal is usually identified as the option of last resort used only when the child cannot safely remain in the current custodial placement.
Child Protection and State Intervention
DUTY TO INVESTIGATE
Deshaney v. Winnebago County Department of Social Services - The court stated that due process under the fourteenth amendment does not guarantee minimal levels of safety and security. Due process does not require the state to protect the life, liberty and property of its citizens against private actors.
The court also rejected the argument that the state had a special relationship with Joshua, because the state had undertaken him to protect him from harm. The affirmative duty to protect arises from the limitation the state has imposed on the individual's freedom to act on his own behalf and not from the state’s knowledge of the individual’s predicament. The injuries inflicted upon Joshua did not occur when in state custody, but while he was in custody of his father, who was not a state actor.
Dissenting opinion – State intervention in a child’s life triggers a fundamental duty to aid the child once the state learns of the severe danger to which the child is exposed.
This case makes clear that in most cases the state will only be responsible for harm suffered by a child when the child is in state custody or the state has otherwise created as “special relationship” with the child.
FL Chapter 39 – Reporting Child Abuse
Florida law places a mandatory obligation of reporting child abuse on every person:
“any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodial, caregiver, or other person responsible for the child’s welfare…shall report such knowledge or suspicion to the department…” (Fla. Stat. 39.201(1)(a) (2005)). Certain occupational reporters must also provide their names when making reports to the registry as set forth in Fla. Stat. 39.201 (1)(b).
FL Chapter 39 – Reporting Child Abuse
Reports of suspected child abuse cases must meet the state definition of dependency prior to the initiation of a child protection investigation. (Fla. Stat. 39.201(2)(a) (2005)).
The department must establish and maintain a central (child) abuse hotline to receive and maintain all reports of child abuse made in the state. (Fla. Stat. 39.201(4) (2005)).
Generally, information contained in the central abuse hotline may not be used for employment screening. (Fla. Stat. 39.201(5) & (6) (2005)).
FL Chapter 39 – Reporting Child Abuse
Reports made to the abuse hotline and the name and identity of the reporter are to remain confidential. (Fla. Stat. 39.202(5) (2005))
A person reporting allegations of child abuse is immune from liability for making good faith reports of child abuse. (Fla. Stat. 39.203 (2005)) Persons knowingly and willfully making false reports of abuse is guilty of a felony of the thrid degree. (Fla. Stat. 39.203(6) (2005))
FL Chapter 39 – Protective Investigations
The State of Florida has established a comprehensive plan to receive and investigate allegations of child abuse as set forth in Fla. Stat. 39.301 (2005).
State investigative protocols include the use of Child Protection Teams (multidisciplinary units consisting of school, health, mental health, social service legal service and law enforcement agencies.) (Fla. Stat. 39.303 (2005)
In the absence of parental consent, an authorized agent of the department shall have the authority to consent to necessary medical treatment until and unless a court order authorizing medical treatment can be obtained.
FL Chapter 39 – Protective Investigations
Special consideration must be given to child victims of sexual assault especially when the report of abuse involves child-on-child sexual abuse. These child victims may pose serious safety issues to other children in the physical custody of the state when they are placed in a setting outside their familiar family home environment. (Fla. Stat. 39.307 (2005))
