Child Abuse: Guilty Until Proven Innocent or Legalized Governmental Child Abuse

Child Abuse: Guilty Until Proven Innocent or Legalized Governmental Child Abuse

February 6, 2010 yvonnemason

Child Abuse: Guilty Until Proven Innocent or Legalized Governmental Child Abuse
Karen Radko*
ABSTRACT: Statistics on the outcome of cases investigated in Florida indicate that in only a very small proportion of the reported cases was it ultimately determined that the parents had abused their children. Although the stated goal of child protection agencies is to keep the family united, in reality children are often quickly removed and placed into foster care following an investigation that is traumatic for parents and children alike, especially when there was no abuse. Suggestions are made for improving the way the system operates.

It should be every person’s legal responsibility to report any child they may reasonably suspect to be abused. However, the consequence of a child abuse report in most states is that the parents may be prosecuted and/or their children taken away with much less evidence than would be required for a conviction in a criminal court. The focus of this paper is to discuss some child abuse issues including the system’s abuse of power (Burriss, 1991) and to make recommendations for improvement.

We first must understand the definition of abuse and neglect (note that parents are not educated as to this definition and its consequences). For example, according to the Florida Statutes 4 (1989, chapters 623-960) criminal abuse and neglect is defined as:

827.04 Child abuse.
1. Whoever, willfully or by culpable negligence, deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter or medical treatment, or who, knowingly or by culpable negligence, inflicts or permits the infliction of physical or mental injury to the child, and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to such child, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084
2. Whoever, willfully or by culpable negligence, deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment, or by who, knowingly or by culpable negligence, inflicts or permits the Infliction of physical or mental injury to the child, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
3. Any person who commits any act which thereby causes or tends to cause or encourage any person under the age of 18 years to become a delinquent or dependent child, as defined under the laws of Florida, or which contributes thereto, or any person who shall, by act, threats, commands, or persuasion, induce or endeavor to induce any person under the age of 18 years to do or to perform any act, to follow any course of conduct or so to live, as would cause or tend to cause such person under the age of 18 years to become or to remain a dependent or delinquent child, as defined under the laws of this state, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. It shall not be necessary for any court exercising juvenile jurisdiction to make an adjudication that any child is delinquent or dependent in order to prosecute a parent or any other person under this section. An adjudication that a child is delinquent or dependent shall not preclude a subsequent prosecution of a parent or any other person who contributes to the delinquency of dependency of the child.
827.05 Negligent treatment of children.
Whoever, though financially able, negligently deprives a child of or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment or permits a child to live in an environment, when such deprivation or environment causes the child’s physical or emotional health to be significantly impaired shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

According to the Florida Protective Services System Annual Report, abuse and neglect is defined as “a child whose physical or mental health or welfare is harmed, or threatened with harm, by the acts or omissions of the parent or other person responsible for the child’s welfare” (Coler, 1991, p.3). This definition is adopted and used by the Department of Health and Rehabilitative Services (HRS) case workers that deal with this issue.

As one can easily see from the above two definitions, there is a big difference between the HRS case worker’s definition of child abuse and neglect and the legal definition of abuse and neglect. However, both definitions leave a great deal of discretion to the case worker when attempting to decide whether a child has been abused and whether they can substantiate the need for removal of the child from their home. (A child is defined as one under 18 years of age.)

How Many Cases Are Confirmed?

The Florida Protective Services System Annual Report (Coler, 1991, p.19), Figure 9, indicates that 57% (62,803 cases) investigated by the state of Florida in the year 1989-90 were classified as “unfounded.” An unfounded report means a report in which the investigation determines no indication of abuse or neglect exists. Twenty-nine percent (32,306 cases) were classified as “indicated” (now reclassified as “closed without classification” because the indicated classification has been found unconstitutional (NL, ES, & MM, vs. Gregory L. Coler, 1990). This was due to the classification procedure which did not provide for the right to appeal the decision to label a person a child abuser (Whalen, 1991). Further, 1% (987 cases) were classified “no jurisdiction.” Finally, 13% (14,669 cases) were “confirmed.” The Annual Report defines a confirmed report as “a report in which the investigation determined that the abuse or neglect has occurred and the perpetrator is identified. A preponderance of credible evidence is required in order to classify a report as confirmed” (p.19).

Appeal rights must be given when the case is classified as confirmed. Of the 1200 cases that were appealed in a two-year period, 92% won the appeal (Associated Press, 1989). Thus, the names of the accused were removed from the abuse registry. Therefore, it is likely that in many “confirmed” cases of abuse, the parents did not actually abuse their children. The actual number of abused children in Florida is likely to be relatively small considering that the Florida abuse hotline receives nearly 200,000 calls of child abuse and neglect each year.

Richard Wexler (1990) reports statistics in his book, Wounded Innocents (), that are not normally seen in the news, presented in courts, or given to social workers. These statistics, which come from well-known sources, indicate that “between 95 and 99 out of every 100 women were not sexually abused by their fathers or stepfathers during their childhood (Russell, 1986); more than 99 out of 100 children are not beaten up by their parents every year (Gelles & Straus, 1989, p. 249); and more than 97% of all children are not abused or neglected in any way in the course of a year (U.S. Dept. of Human Services, 1988)” (p.77).

Why are there so many state investigations and so few confirmed reports of abuse? Why must so many families defend their innocence against false allegations of abuse or neglect? The answers are simple; the State Department of Health and Rehabilitative Services (HRS) was mandated under Public Law 92-247 The Child Abuse Prevention and Treatment Act of 1974 and Public Law 95-266 The Child Abuse Prevention and Treatment and Adoption Reform Act of 1978 to be “the ultimate authority responsible for children” (HRSM 175-7, 1-9, 1990). HRS has all power and authority over whether to remove children solely on an allegation made to the abuse hotline. The justification for this is called “erring on the side of the child.” With the definition of abuse and neglect so vaguely defined by current law, nearly all children at some time in their lives can fall into one or several categories of being abused or neglected. And although the stated goal of HRS is to keep the family united, strengthen the family, and protect parental rights (Florida Department of Health and Rehabilitative Services, 1988), in reality the state often refuses to help parents keep their children.

The Investigation

The investigation usually begins with an anonymous telephone call to the abuse hotline (Casey, 1991) by either a concerned party or one attempting to seek revenge. According to the the Florida Protective Services System Report (1991), “the abuse registry counselors may not be consistently screening allegations of abuse and neglect because they are not sufficiently knowledgeable about the screening criteria’ (iii). The counselors may have insufficient time to gather the information needed to determine whether an investigation is warranted. As a result, some counselors may be rejecting valid abuse allegations, leaving some victims of abuse unprotected by the state intervention program.

Further, “counselors may be initiating investigations unnecessarily, which wastes investigative resources, and unnecessarily intrudes upon the lives of private citizens” (iii, italics added). To improve the effectiveness and consistency of the Registry’s screening practices, more effective training is needed so that the counselors can recognize the presence of behavioral, environmental, and physical indicators of abuse and neglect, and be competent to interview without prejudice.

Once a call has been received and a determination is made to investigate, the HRS worker has up to 24 hours to complete an initial investigation. It has been found that HRS workers frequently take children from their parents with little or no evidence, but only a suspicion that abuse might have occurred. The HRS manual 175-7 (Florida Department of Health and Rehabilitative Services, 1990) states that during an investigation the “major source for substantiating the case is the family” and adds that the HRS worker is to document what the “family members transmit to the counselor through the condition of their home, their behavior, their attitudes toward the counselor and each other” (pp.2-17). The HRS worker then uses this information as a basis for removal of a child from the custody and care of the parents.

The Health and Rehabilitative Services Pamphlet (Florida Department of Health and Rehabilitative Services, 1988) tells the case worker that often parents are angry and will deny the allegation of abuse or neglect. It advises the case worker: “You must always obtain information to substantiate the alleged perpetrator’s account and to resolve any conflict between the allegations in the report and the alleged perpetrator’s denial” (F-2). It adds that if parents are overly-compliant, accepting, and helpful the case worker should not be falsely assured that the statements the parents are giving are true and accurate (F-2.5.6.) and states: “These may be a smoke screen to diffuse your investigation and manipulate you … be suspicious” (F-11).

However, “suspicious” is never defined, forcing HRS workers to use their own judgment. This advice is seldom advantageous to the family and HRS’s stated goal of keeping the family united and protecting parental rights. With the mentality of “be suspicious” and “substantiate” every allegation, a parent is usually in a no-win situation. If parents are either too hostile or too friendly, they are judged guilty of abuse or neglect simply by their emotions.

After the initial interview the case worker has 30 days to complete the investigation and classify the case. There are four types of classifications: unfounded, closed without classification, proposed confirmed, and confirmed. Bob Horner, a Florida Department of Health and Rehabilitative Services subdistrict administrator, stated, “HRS is not bound by that (the 30 day rule). We can go as long as it takes to make a case (Pride, p.71). Horner observes that during that time, parents have absolutely no rights. However, Terry Ackert, the executive director of Florida’s Orange County Legal Aid Society, notes that every time HRS takes more than 30 days to investigate, they are violating the law: “If HRS isn’t following the written rules, they are abusing their authority beyond reason … their actions are outrageous” (Pride, 1986, p.71).

Abuse by the System

Children are traumatized when they are separated from their parents (Close, 1992; Ostalkiewicz, 1991). If abruptly removed and placed in foster care they are likely to be terrified and may suffer severe emotional distress and depression. Despite this, according to the data collected for the federal government by the American Humane Association, it appears that up to half of the children placed in foster care were in no immediate danger of serious physical injury (Besharov, 1988).

There is little gained by removing a child from the parents unless there are circumstances whereby the child was legitimately taken for protection from life-threatening injuries. Judge Bresee (Close, 1992) states that it is “critical to make a quick decision (in initial investigation and removal of a child) … two weeks doesn’t seem like any time at all, but to a child, it’s an eternity.” Foster care is supposed to be a short-term remedy designed to protect children from harm while parents have time to respond to treatment. Yet, the reality is far different. More than 50% of the children in foster care are in the “temporary” status for over 2 years; more than 30% are away from their parents for over 6 years (Besharov, 1988, p. 221s).

When the Florida government places children in foster care, HRS often prohibits the children from having contact with their friends, church, school, family or relatives. Further, the children lose access to their clothes, special blankets or animals, toys, games, dating (if adolescent), use of vehicle (if of age) and even use of telephone privileges. “This can only be construed as the imprisonment of a child, since the child has not committed any crime and is being held against his or her will; it is false imprisonment” (Burriss, 1991, p.5). Tong (1992) notes, “The long-term ramifications of this (separation trauma and loss of family and possessions) on the children has yet to be determined, but the potential consequences cannot be considered innocuous or inconsequential” (p.120).

Child advocates believe that abuse runs in cycles. Therefore, they maintain that when children are abused, they will later abuse their own children. Similarly, Burriss (1991) notes Gardner’s observation that many people will grow up and enter an occupation because of some major event in their life. For instance, a person exposed to a catastrophic illness may become a physician. Social workers who were abused as children may later wish to take on the cause of child protection. Therefore, they tend to be overzealous and to believe that every reported case of abuse or neglect must be substantiated in order to protect the child.

But, protect them from what … their parents? Wexler (1990) states, “No one will value and protect another’s child as they will their own.” In a Glenn Close (1992) documentary, Broken Hearts, Broken Homes, a social worker, Laurette Moatt, hesitates to return a child to the parents because: “It’s hard to return a child home because of the developmental stage she’s in. It’s not easy to switch primary caretakers. That’s not something kids do just like that.” Yet, this same social worker did not hesitate to “switch primary caretakers” on an unsubstantiated allegation of abuse. In addition, children are at higher risk of receiving physical, sexual and emotional abuse in foster care which may be worse than the alleged abuse by the parents (Jones, 1991).

HRS workers have great power to intervene and separate the child from the parents. However, they are not accountable. The conduct of HRS workers and other child advocates, such as the guardians ad litem, is protected with legal immunity. Florida statutes 415.508 and 39.455 state: “The inability or failure of the social services agency or the employees or agents of the social service agency to provide the services … shall not render the state or the social service agency liability for damages … (292). Also, according to the court case of Darryl H. v. Coler; 801 F. 2d 893.93 A. L. R. Fed. 501, this immunity protects social workers from civil rights violations, knowingly false reports, and abuse of children if done during the investigation.

In addition, all records of investigations involving child abuse are confidential or sealed unavailable to the public. While confidentiality is claimed to protect the child, in actuality it provides an excellent shield to cover up wrong doing by the child protection system. Therefore, child protection workers have full access to children with complete secrecy, immunity from prosecution, and legal protection from the department of Health and Rehabilitative Services if their judgment is questioned. What better environment could a child molester or abuser ask for?

Workers may violate basic civil and constitutional rights, falsify reports, emotionally traumatize and abuse children, and place children in foster care where the children may be physically and/or sexually abused. All of this is done in the name of the best interest of the child. “The government has no right to expect perfection from parents especially when the government has demonstrated they are substantially less than perfect themselves” (Burriss, 1991, p.7).

Jones (1991) identifies the harm of intervention in abuse cases as “iatrogenic harm” or system abuse. Iatrogenic harm is the harm created by the response of the system to an allegation of abuse. Some of the components Jones identifies are overzealous professional intervention which becomes counterproductive; repeated interviewing or “disclosure work”; repeated physical examinations; decline in living standards and family breakup; defensive decision making for fear of lawsuits; withholding of treatment for lack of funds; overtreatment; and foster care, particularly when there are multiple placements and the disruptions are abrupt.

In defense of the social worker, the Department of Health and Rehabilitative Services in Florida acknowledges that “unfortunately, unpredictable increases in reports and cases, long-term vacancy rates and high turnover in staff have reduced the goal of obtaining manageable and effective workload” (Florida Protective Services System, p. 42). Workers are not adequately screened nor trained to do the job that is entrusted to them. A worker can have a four-year degree from any college. Although they have background checks, via fingerprints through the FBI run on them after employment, the screening does have information regarding abuse or neglect listed against them when they were children. Such childhood abuse could influence their attitudes as protective workers.

The recommended number of new cases per case worker is to be no more than 12 per month. However, workers average up to 15 or more new cases. When this is added to the existing case load, considering children stay in government care on the average of 2 to 6 years, a case worker may have up to approximately 120 cases. David Flagg, State House of Representatives of Alachua County, Florida (1988 to 1992) observes this is an outrage, not only for the case worker, but for the children (personal communication). Mr. Flagg felt that no one person could possibly handle that large a case load and do the task of protecting children adequately. He said it was no wonder children and families are being separated for long periods due to the lack of proper services being offered to reunite the family. ABC’s Diane Sawyer (News Prime Time Live, December 3, 1992) observes that “The HRS’s system is stretched too thin — too many case, too few workers … (social workers) are also just careless and incompetent.

Luza and Ortiz (1991) describe what they term the “shame” factor child protective workers use against families. They believe that “the Child Protective Service workers act in a shaming way toward people it investigates for abuse, in much the same way that a parent shames a child in a dysfunctional family. The family becomes the shamed ‘child’ and the CPS acts as the shaming ‘parent’” (p.109). Luza and Ortiz believe that even though there are laws requiring professionals to identify and report abuse, the pendulum may have swung too far in that it is considered unwise to support less intervention because one may be thought of as a proponent of child abuse. The result is unnecessary state intervention into private family matters and grief to innocent parents and their children.

Recommendations for Improvement

Schultz (1989) reports on a case study of 100 cases of unfounded abuse and makes several recommendations for improvement in the system:

The case load of the child protective worker should be reduced to a manageable level.

The hotline reports should be classified by experienced workers in terms of the seriousness of the risk.

In-service training for administrators in proper and ethical use of media (which often uses hype and exaggerated data) should be provided.

Initial call screening must be improved.

Family-impact statements should be required to justify all major decisions for state intervention into family privacy.

Child protective agencies should assign one case worker to represent the child and one worker to represent the interest and rights of the parents.

Family mediation should be a first step in allegations, instead of court action.

Interviews of suspected victims and offenders should be videotaped by properly trained personnel.

Investigators should receive training in how to effectively gather evidence that will stand up in court.

Professional assistance for parent-victim should be provided to assist them in forgiving the court and repairing injury by the system.

Some type of victims-compensation benefit for falsely charged and/or convicted individuals should be instituted, or made a part of current victims compensation policy.

There is one solution that has been implemented, as a pilot program in four districts in Florida (Chapter 415, 415.515-415.22). That program is the Family Builders Program. This program, which was developed by the Behavioral Sciences Institute in Washington, DC, is an intensive family preservation service designed to keep families intact and to improve family functioning (Kenny, 1991). Referrals to this program are parents who have allegedly abused or neglected their children and may lose custody of their children to the state department of HRS.

A team of highly trained therapists and social workers work with no more than three families at a time. They assess the needs of the family and they provide necessary services, such as help in obtaining food, clothing, and shelter; training in parenting skills, balancing a checkbook, and preparing nutritious meals; and teaching families about emotions, behaviors, and interpersonal relationships. The cost of these services, which are paid for by state, federal and private funds, does not exceed the cost of out-of-home care which otherwise would be incurred.

The social worker and therapists are available to the family 24 hours a day for up to 90 days. After that, there are monthly follow-ups by the same team for up to 12 months. This program has proven to be highly cost effective and 88% of the children originally targeted for out-of-home placement remain out of government-funded foster, group or institutional care. Therefore, this program is saving Florida substantial money.

Conclusions

Child abuse is a serious issue but is not as widespread as some child advocates maintain. Children not only have the right to grow up free of abuse, but have the right to expect to be raised within their own family. This issue is not just about “saving children”; it is about family preservation (Wexler, 1990). Until professionals can accept the fact that the family unit is the most important part of the child’s life, and that parents need to be recognized as the “experts” in knowing what is in the best interests of their children, innocent families will continue to be destroyed in what the bureaucratic government agencies call “acting in the best interest of the child” or “erring on the side of the child.” If we are really serious about child protection, we must begin “erring on the side of the family” (Wexler, 1990).

References
ABC News Prime Time Live, (1992, December 3). Who watches the watchmen? (Television). American Broadcasting Companies, Inc. Transcript #274.

Besharov, D. J. (1988). How child abuse programs hurt poor children: the misuse of foster care. Clearinghouse Review, 22(3), 219-227.

Burriss, R. (1991). The government’s right to molest children in the best interest of the child. Unpublished manuscript.

Casey, S. (1991). District Administrator HRS, Gainesville, Florida. Letter to David Flagg, Representative, District 24.

Close, C. (1992, December 2). Broken hearts, broken homes. Your family matters [documentary]. Lifetime production. Transcript #10.

Coler, G. L (1991). Florida Protective Services System: Annual Report, Fiscal Year 1989-90, Child Protective Investigations, pp.3, 19, 41-42. Tallahassee, Florida: Florida Department of Health and Rehabilitative Services.

Florida Department of Health and Rehabilitative Services. (1990). HRS Manual 175-7, pp. 1-9, 2-17. Tallahassee, Florida: Author.

Florida Department of Health and Rehabilitative Services. (1988). HRS Pamphlet 175-1. Child Protective Services Investigation Decisions Handbook, Appendix F, F-2; F-11; pp. 7-5, 7-8. Tallahassee, Florida: Author.

Florida Protective Services System (1991). Executive Summary. Audit Report No. 11645, pp. i-vii. Tallahassee, Florida: Author.

Florida Statutes 4. (1989). Chapters 624-960, pp. 1308.

Florida Statutes 1. (1991). Chapters 1-246, pp. 292.

Florida Statutes 3. (1991). Chapters 409-623, pp. 117, 143-144.

Gelles, R., & Straus, M. (1989). Intimate Violence: The Causes and Consequences of Abuse in the American Family (). New York: Touchstone Books.

Jones, D. P. (1991). Professional and clinical challengers to protection of children. Child Abuse & Neglect, 15, 57-66.

Kinney, J. (1991). Making a difference for children, families and communities. Behavioral Science Institute.

Luza, S., & Ortiz, E. (1991). The dynamic of shame in interactions between child protective services and families falsely accused of child abuse. Issues In Child Abuse Accusations, 3(2), 108-123.

NL, ES, & MM plaintiff vs. Gregory L Coler, individually and as Secretary of the Department of Health and Rehabilitative Services, State of Florida, defendant, (1990, March). Case #TCA 90-40069-MP, in U.S. District Court, Northern District of Florida, Tallahassee Division.

Ostalkiewicz, J. (1991. February). Family rights: HRS’ child abuse witch hunt. Orlando, FL, Newsletter, 1-8.

Pride, N. (1986). The Child Abuse Industry (). Illinois: Crossway Books.

Russell, D. (1986). The Secret Trauma: Incest in the Lives of Girls and Women (). New York: Basic Books.

Schultz, L. (1989). One hundred cases of unfounded child sexual abuse: A survey and recommendations. Issues In Child Abuse Accusations, 1(1), 29-38.

Associated Press (1989, February 7). Study: 92% of appealed child-abuse cases false. The Orlando Sentinel, p. B-1, B-5 and the Tallahassee Sun-Sentinal, p. 16-A.

Tong, D. (1992). Don’t Blame Me, Daddy (). Norfolk, Virginia: Hampton Roads Publishing Co.

U.S. Dept. of Health and Human Services, National Center of Child Abuse and Neglect. (1988). Study findings: Study of national incidence and prevalence of child abuse and neglect (1988 NIS-2). Chapter 3, p. 2. Washington, DC: Author.

Wexler, J. (1990). Wounded Innocents: The Real Victims of the War Against Child Abuse (). New York: Prometheus Books.

Whalen, J. (1991). Florida abuse registry loses in federal court. Issues In Child Abuse Allegations, 3(4), 228-231.

* Karen Radko is the vice-president of the Board of Directors of VOCAL of Florida and the District Representative for the Gainesville, Florida VOCAL Chapter. Ms. Radko, who is pursuing a masters and doctorate in psychology, can be reached at P.O. Box 7021, Gainesville, Florida 32605. [Back]

Abuse by CPS, guilty until proven innocent, yvonne mason
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