The legal system in the United States recognizes the rights, privileges, and authority of natural parents with regard to their children.1-3 Ordinarily, these may be exercised by the parents without interference from the state;1-4 nonetheless, acts or omissions of parents that adversely affect the health, safety, or welfare of the child or society are subject to the control of the state.4,5 Thus, legal rights and responsibilities with regard to children are determined, to a significant extent, by the government's power as parens patriae, or sovereign guardian of persons under a disability such as minority.6 In this role, the state has broad judicial and legislative power7 to limit and regulate the natural parents' parental freedom.
In the United States, the state's role as parens patriae is not the creation of the legislature but, rather, is largely a matter of public policy. The parens patriae role is clearly recognized by many legislative enactments under which the government exercises jurisdiction over the children within its boundaries, and is further supported by Constitutional and judicial approval. It is academic whether the child is primarily in the custody of the state, which may then delegate certain parental functions to the natural parents, or whether the child is primarily subject to the care and control of its natural parents, whose control over the child may then be limited by the state. In either instance it is the state, through its legislatures and courts, that ultimately determines the various rights and responsibilities affecting the child.7
The legal system - that is, the legislatures, the courts, and the Constitution - deals with rights and responsibilities affecting children in many aspects. These include the custody, support, and visitation of the child; the property rights, employment, and earnings of the child; criminal acts and delinquent or incorrigible behavior of the child; criminal acts and neglectful or abusive treatment imposed upon the child; the educational, medical, physical, mental, and emotional needs of the child; civil claims against those who are responsible for the child; and determinations of parental rights in regard to the child. While the issues of child abuse and neglect might be related in one way or another to all these aspects of the legal system, three principal ones are most consistently involved.
1. The criminal laws protect the child against certain acts or omissions by others that are considered detrimental to the well-being of the child and to the society in which the child lives.
2. Laws concerning the reporting of child abuse and neglect are designed to identify the abused and neglected child and to protect the child from further abuse and neglect.
3. The adoption laws permit the child to be permanently separated from abusive and neglectful parents and to be settled into a more adequate environment.
Every state in the United States has enacted criminal laws related to child abuse and neglect. Most such laws do not specifically focus upon children, but they may be utilized in the prosecution of a crime against a child. For example, criminal codes prohibiting murder, manslaughter, assault, battery, fornication, and prostitution provide for the jurisdiction of the criminal courts in most abuse cases. The application of the criminal codes to neglect cases is more difficult unless the neglect can be proved wanton and willful. Some states, however, have enacted criminal codes that specifically focus upon issues of child abuse and neglect - for example, such titles as "cruelty to children" and "child abuse."
Generalized crimes have been part of the criminal statutes for decades, even centuries; the specific crimes affecting children are of very recent origin. For many reasons, however, neither has proved to be an effective indicator or deterrent of child abuse and neglect.8"10 A basic understanding of criminal laws will show why.
The purpose of criminal laws is to provide for redress against those whose acts or omissions adversely affect the health, safety, or welfare of the society in which they live. In addition, criminal laws seek to rehabilitate criminals and deter criminal acts. These purposes are served by the imposition or threat of fines and imprisonment. Ordinarily, the criminal courts do not directly compensate or assist the victims of the crime because the law provides for that in the civil, family, or juvenile courts.
The focus of the criminal court is exclusively upon the alleged criminal. Involvement of all others is solely to assist the prosecutor in proving that a crime was committed. In cases of child abuse and neglect, prosecution immediately serves the counterproductive effect of placing the parent and child in the antagonistic positions of criminal and victim, discouraging rehabilitation and fostering anger and guilt. Publicity given to the case further angers and embarrasses the parties and destroys interpersonal relationships. Convictions in child abuse and neglect cases are relatively few.9 Indeed, the prosecutor's role in these cases is a very difficult one. The accused is innocent until proved guilty, and guilt must be proved beyond a reasonable doubt. The evidence to sustain a conviction is often impossible to find, because there are no witnesses to most abusive acts; when there are witnesses, they are usually codefendants, conspirators, persons whose testimony is protected by a privilege, or persons who, because of their personal relationship to the defendant, do not want to come forward to testify. Convictions are further limited by the prosecutor's inability to prove the requisite intent or by the defendant's claim of insanity or mental incompetency.
Even in those cases in which the defendant is convicted, the criminal system proves to be an ineffective deterrent, as evidenced by the high rate of recidivism. Many convicted childabusers are soon free and able to abuse again: they are either paroled or given short sentences unrelated to the underlying problems that contributed to the abuse or neglect. Still others are never incarcerated, receiving suspended sentences and being placed on probation instead.11 A final argument against the criminal system's effectiveness in child abuse and neglect cases is that potential punishment discourages the admission by the parents that the child was abused or neglected. It also makes the parents reluctant to present the abused or neglected child for treatment by professionals, who might identify the cause and expose the parents to punishment.9
The criminal laws and criminal courts can, on the other hand, be effectively utilized in the management and disposition of some child abuse and neglect cases. Obviously, there are cases that come to the attention of interested professionals in which there is little or no likelihood of effective rehabilitation or treatment of the abusive parent. For example, there are abusive parents whose psychosis is so severe that therapeutic progress during the minority of the child is an unrealistic expectation. Such parents may be prevented from administering further abuse to children only by limitations of their freedom imposed through the criminal court process. There are also abusive and neglectful parents whose fixed level of competency may affect their ability to cope with the problems of managing their children. Such parents may be placed in a secure, safe environment, and their children safeguarded, only by order of a criminal court. In both cases, the hope is that the adversary nature of the criminal proceeding will be minimized and supplanted with a greater degree of understanding and compassion.
Abusive and neglectful parents who can be treated and rehabilitated either in or outside the family setting can often be encouraged to participate in the treatment plan on condition that a pending criminal court proceeding will be continued or suspended. Though mental health professionals disagree about the effectiveness of involuntary treatment, the suspension of pending criminal proceedings against a defendant who agrees to an alternative plan raises a situation that is neither totally voluntary nor totally involuntary.
Thus, while the criminal laws seek to protect the child from abuse and neglect and to hold the parent responsible for mistreatment of the child, they fail to offer comprehensive treatment or rehabilitation to the parent, child, and family, except in those instances in which the criminal system functions in conjunction with other branches of the legal system, or with other professionals, in a treatment plan.
CHILD-ABUSE REPORTING LAWS
It was not until the early 1960s that physicians and behavioral scientists began to explore the notion that severe injuries in children were the result of intentionally inflicted trauma; it was not until the middle of 1962, when the "battered child syndrome" was presented to the medical profession, that professionals began to take a serious look at the problem in an effort to understand and eliminate it.12 By 1963 a strong alliance of the medical profession, the legal profession, and behavioral scientists was evident. Data were being compiled and research was being conducted at various children's hospitals and universities; state legislatures were drafting, introducing, and enacting childabuse legislation, and public-interest organizations were focusing on and publicizing the relevant issues.13,14 Fifteen years later, the scope of the problems related to child abuse and neglect has broadened and the issues have become more complex. An examination of the child-abuse reporting laws will provide insights regarding the management of childabuse cases, the roles of the parties and professionals concerned, and the present status of the problem.
The primary purpose of child - abuse reporting laws is to identify children who are abused, to protect them from further abuse, and to provide them and their families with help. The manner in which this is accomplished differs from state to state depending on the provisions of the reporting act. The first child-abuse reporting laws were introduced and enacted within one year of the American Medical Association's publication of the term "battered child syndrome" in 1962. By 1968 every state in the United States had enacted a child-abuse reporting law. By now most of those laws have been repealed and re-enacted, revised, or amended, and many state legislatures now have bills pending to alter their reporting laws in one way or another. Clearly, the legal system reflects the developing knowledge in the field of child abuse. Nonetheless, certain generalities may be expressed and certain common elements may be found in the reporting laws of the various states.
Reporting laws are civil in nature - that is, they are designed to resolve claims and issues among the citizenry. Under the law, the term "citizenry" encompasses any "person" - including, without limitation, adults, children, business entities, nonprofit and charitable agencies, hospitals, government agencies, and public-interest groups. Civil courts do not impose punishment, fines, or imprisonment on behalf of the public; rather, they award financial compensation or equitable relief to an aggrieved party. The reporting laws of Arizona, Nevada, Mississippi, and Maryland do provide criminal sanctions against those who abuse a child, and the reporting laws of most states impose criminal sanctions against those required to report under the law but who fail to do so. Yet procedure under these laws remains civil in nature; the ancillary criminal aspects are largely for implementation purposes and are rarely, if ever, enforced.
Definitions of child abuse, if given at all, vary considerably. First, the term "child" may refer to a person up to the age of 12 to 18 years. (Most states limit the definition to persons under 18 years of age.) Second, the term "abuse" generally refers to serious physical injury resulting from other than accidental means, and many statutes list various methods or specific indicators of abuse. A better definition would include not only serious injuries but also acts or omissions likely to result in serious injury. Clearly, we should not wait for the child to suffer if we can predict what will happen and prevent it. In addition, a better definition would include physical, emotional, and sexual abuse - but in the broadest terms, thereby encouraging the filing of a report if suspicion of abuse exists but the specifics are unknown. For example, the use of such terms as "fracture" and "hematoma" tends to limit the reporting of certain trauma because the reporter feels required to "prove" the exact nature of the injury.
The original intention of childabuse reporting legislation was to require physicians to file reports of abuse. Physicians were singled out because the original definitions of abuse were limited to medical observations, and physicians were the only persons in a position to evaluate the alleged abuse. Today the requirements of every state reporting law apply to physicians - either specifically, as hospital staff, or along with other persons generally required to report - but physicians are not longer singled out to report because the reporter need not assess the possibility of abuse. The reporter needs only to suspect the possibility of abuse. Upon filing of the report, an evaluation is made by an agency or interdisciplinary team to determine the cause of the child's condition. Legislative trends are toward requiring all medical, behavioral, legal, religious, and educational professionals as well as lay adults to file reports of suspected abuse.
Every person who files a suspected-abuse report is immune from civil and criminal liability, either absolutely or if the report is made in good faith. There appears to be no appellate court case that has challenged the immunity provisions of the reporting law in any of the 50 states. On the other hand, most state reporting laws specifically provide for a penalty for failure to report, and some laws and courts impose civil liability for such failure. It would seem logical that if a person, particularly a professional person, were required to file a report but failed to do so when child abuse was suspected or should have been suspected, and the child suffered additional injury thereafter, this person would be legally accountable in a civil court for failure to report. This theory is likely to impose a particular burden on physicians, hospitals, and educational institutions, but it must be recognized that the reporting law does not solicit voluntary acts of conscience from these professionals; it imposes a legal duty upon them to act on behalf of all children with whom they come in contact because those children are unable to act for themselves.
Reports are generally made orally at first, followed by a written report to the designated state child welfare or child protective agency in the county where the child resides. In most states the report is also given to a law enforcement agency - the police, district attorney, sheriff, or court - either by the reporter or by the child welfare agency. Reports are relatively brief and include identification of the child and parents, the child's age and residence, a description of the child's condition, and the identity (if known) of the person responsible. Upon receipt of the report, the agency is required to investigate promptly, usually within 24 to 48 hours, to supply immediate protection to the child from further harm and treatment for existing injuries, to provide services to the child and family when the investigation reveals abusive treatment, and to seek court intervention for authority to act or to determine what action, if any, is appropriate. Finally, almost all reporting laws establish a central registry to compile data on abused children and abusive parents. While, in theory, the central registry provides vital information in abuse cases, particularly in suspected-abuse cases, significant controversy has arisen regarding the invasion of the privacy of those registered, and reasonable safeguards in connection with the information have been registered and disseminated.
There can be no dispute that child-abuse reporting laws have been instrumental in the increasing identification of abused children. Yet writers and researchers suggest that only a small fraction of abused children come to the attention of those able to help. Two theories are advanced to explain this.
First, the abuse reporting laws themselves are viewed by many critics as cumbersome, confusing, and limiting to lawyers and the courts.15 As parens patriae, the state has always had the power, through its courts, to protect children and remove them from undesirable environments. The reporting laws serve to limit the court's discretion in abuse cases to those that fall within either rigorously drafted or ambiguous definitions of abuse. Furthermore, the reporting laws create procedural nightmares that may in the end only circumvent the goal of the law itself.
In large, urban, sophisticated locations, this theory may be accurate. Big cities are better equipped to identify child-abuse cases and have more experience in managing them. Consequently, the judicial system is likely to adapt existing general legislation in adjudicating abuse cases. But in smaller cities and suburban and rural communities, there is likely to be less organization of protective services for children, and experience in managing abuse cases may be nonexistent. Careful drafting of abuse laws - such as the models suggested by the National Council of Juvenile Court Judges, the National Council on Crime and Delinquency, the National Center for the Prevention and Treatment of Child Abuse and Neglect, and the Children's Bureau - provides a proper legal framework for most situations.
The second theory advanced for the limited effectiveness of the reporting laws is the reluctance of those permitted or required to report to actually do so. The basis of some of this reluctance is the misinterpretation of the reporting statute to mean that one must have firsthand reasons to know that a child was abused. One neither needs to witness the abusive act nor to know that the child was in fact abused. One merely needs to suspect that the child's condition was caused by abuse or to have information about the condition of a child that suggests the possibility of abuse.
Physicians, particularly physicians in private practice, are the chief obstacle to the effective reporting of child abuse and neglect under the reporting laws. There are several reasons why these physicians do not report the abuse that they see. They may not carefully inquire into the medical history of injured children; they may, mistakenly, fear civil liability if the report of suspected abuse proves otherwise; they may, also mistakenly, believe that the physicianpatient privilege bars disclosure of all confidential contacts; they may fear that they will gain a reputation of creating problems for their patients; they may deem reporting to public child welfare agencies futile because the agencies are overloaded with work, understaffed, and generally ineffective in treating and managing abuse and neglect cases; or they may simply not want to become involved with the legal system.
Perhaps the most effective method of encouraging reporting by professionals is the development of the interdisciplinary team approach as it has evolved in many children's hospitals and child protection agencies. On presentation of certain injuries, histories, or inconsistencies, a meeting of the interdisciplinary team is convened to review the case. Physicians, psychologists, psychiatrists, nurses, social workers, lawyers, police, clergy, and teachers may constitute the team. Together they can explore the situation comprehensively to determine the possibility of abuse and plan for management of the case. While individually their information may be too speculative, together they may be able to compile sufficient facts to warrant a report.
Adoption laws are important in child abuse and neglect cases wherein it appears that the child will not be reunited with the natural parent. In some cases - for example, when the parent's whereabouts are unknown or when the parent refuses to accept the child - the child cannot be returned to the parent. In other cases the likelihood of a reunion is so remote that it would be a disservice to the child not to permit adoption, as when the parent suffers from irreversible medical or mental illness that prevents the resumption of parental duties. In still other cases the child should not be returned to the natural parent because the parent has failed to perform parental duties in regard to the child, and during that period the child has formed psychologic bonds to prospective adoptive parents.16
In order for a child to be adopted, the parental rights of the natural parent must be relinquished voluntarily, terminated by death, or involuntarily terminated by judicial proceedings.
Among the grounds for the involuntary termination of a parent's rights in regard to a child is the abusive or neglectful treatment of the child by that parent. Ordinarily such conduct must have continued for a significant length of time, it must adversely affect the child's physical or mental well-being, and it must be conduct that will not or cannot be mitigated by the parent.
Unlike changing the custody of a child, termination of parental rights is a final adjudication, not subject to further judicial review, except for reversible errors in the original proceedings. In other words, grounds for termination are not periodically reviewed for changes of circumstances. Therefore the courts have been reluctant, except in the most extreme situations, to involuntarily terminate parental rights.
Several legal procedures deserve special attention in regard to child abuse and neglect cases.
The central figure in the abuse and neglect case is the child. Although children are ordinarily no better able to protect themselves in court than they are in the home of an abusive parent, most judicial inquiries proceed without affording adequate safeguards for the child's representation.
Only a handful of reporting statutes provide for the appointment of a guardian ad litem for the child, and none specifically require that the child or parent be represented by counsel during all stages of the proceedings. A guardian ad litem is a person or agency appointed by the court to represent the best interests of the child. Often a lawyer is appointed to this role, but a subtle difference exists between the roles of counsel and guardian ad litem, counsel being a representative and the guardian ad litem being a party to the proceedings. Since the civil liberties and personal freedom of the child and parents may be affected by the proceedings, it is prudent to provide each with the right to counsel.
The role of a lawyer might be characterized as that of helping the client accomplish, within the limits of the law, what he wants to accomplish. The lawyer must carefully determine, however, what it is that the client wishes to accomplish. Clients often express inappropriate means for accomplishing a particular end, in which case it is incumbent on the lawyer to adequately guide and inform the client. When the legal issues are emotionally charged, a lawyer must be particularly sensitive and instructive in providing the client with the probability of success. For example, in cases involving marital difficulties, clients regularly suggest tactics that would foster frustration and failure. In such a situation, the lawyer has an obligation to provide advice that, if taken, permits the client to avoid frustration and failure. This holds particularly true in childabuse cases, where most parents express a sincere desire to provide the best for the child. If the lawyer is able to advise the parent to focus on the child and not on the parent's own selfish interests or on emotional overreactions, there is likely to be a greater possibility for effective réunion of the family.
Almost every abuse reporting law specifically provides for the waiver of the husband-wife and physicianpatient privilege. This obviously enables the court and lawyers to require responses from these key witnesses that could otherwise be withheld. In order to permit all the information to be presented in the most comfortable, complete, and spontaneous way, judicial proceedings and evidentiary rules are generally less formal in abuse and neglect cases. The judge must, of course, base the decision in the case upon relevant and competent evidence.
The testimony of physicians and other medical professionals is essential in the abuse case. The child is usually unable or unwilling to describe the events that actually occurred; moreover, placing the child in the position of testifying to the abusive treatment by the parent may be traumatic. The parent, of course, typically denies any abusive conduct, and witnesses may be participants in the abusive treatment or may be related to the abuser. The physician, however, has the expertise to provide concrete scientific information about the child's condition and may even be able to refute a parent's account of the injury if it is at variance with the medical evidence. For example, the physician may be able to identify unusual injuries, scar tissue, fractures at various stages of healing, or foreign substances or to conclude that a certain fracture resulted from twisting and not from a fall. Of all available testimony - certainly, of all professional testimony - the physician's may be the most scientific, the most concrete, and the most easily proved.
Child abuse is not just a legal problem. It is a legal, medical, psychologic, psychiatric, social, religious, and educational problem. Indeed, child abuse is a complex issue involving many disciplines. The legal system has established and will, from time to time, continue to establish the framework within which cases of child abuse may be managed. But the legal system is merely a shell requiring the support of its medical and behavioral colleagues. D
1. Doe v. Doe, 30 N.Y. S.2d 141 at 144; 177 Misc. 165.
2. Stare rei. Lipscomb v. Joplin, W. Va., 47 S.E.2d 22 at 225.
3. 67 Corpus Juris Secundum. Parent and Child §10.
4. Wilkerson, A. E. (ed.). 77» Rights of Children, Emergent Concepts in Law and Society. Philadelphia: Temple University Press. 1973.
5. 59 American Jurisprudence 2d. Parent and Child §8,9.
6. Black, H. C. Black's Law Dictionary, Fourth Edition. St. Paul. Minn.: West Publishing Company, 1951.
7. Petition of Keich, 58 District and County Reporter 61.
8. Flammang, C. J. The Police and the Underprotected Child. Springfield. III.: Charles C Thomas. Publisher. 1970.
9. Katz, S. N. (ed.). The Youngest Minority, Lawyers in Defense of Children.
10. Grumet, B. The plaintive plaintiffs: Victims of the battered child syndrome. American Bar Association, Section of Family Law. A.B.A. Press. 1974.
11 . Terr, L. C. and Watson, A. S. The battered child rebrutalized: Ten cases of medical-legal confusion. Effective Utilization of Psychiatric Evidence. New York: Practicing Law Institute, 1970.
12. Kempe, H. C, et al. The battered child syndrome. J.A.M.A. 181 (1962). 17.
13. DeFrancis, V. and Lucht, C. L. Child Abuse Legislation in the 1970's. Denver: The American Humane Association, Children's Division, 1974.
14. Sussman, A. Reporting child abuse: A review of the literature. Family Law Q. 8 (fall, 1974), 3.
15. Dembitz, N. Child abuse and the law - Fact and fiction. Effective Utilization of Psychiatric Evidence. New York: Practicing Law Institute, 1 970.
16. Goldstein, J.. Freud, A., and Solnit. A. J. Beyond the Best Interests of the Child. New York: The Free Press, 1973.