There are two separate components in the legal system’s approach to addressing child protection issues. The first, dating far back in the American legal system, is the criminalization of behavior by any adult who inflicts serious harm on a child, whether a parent, caretaker, or other. As law evolved, special labels, such as child endangerment, and special enhanced penalties for crimes committed against children, such as for sexual molestation, became part of the legal framework. The other component is a structure under civil law for child protective government agency and judicial interventions for parental abuse or neglect of children. This component is largely a 20th century development. As public child protective services agencies emerged in the second half of the century, a juvenile court structure for child protection intervention (which actually dates back to the early part of the century) became more sophisticated and complex.
The Criminal Law
When conduct of a parent or legal guardian of a child rises to the level of child abuse or neglect constituting a violation of the criminal law, there is authority on the part of prosecutors to bring criminal charges against that adult. However, most child maltreatment in the home, even when clearly in violation of criminal law, does not result in criminal charges against the child’s caretaker. Rather, such charges are generally reserved for the most serious of interfamilial offenses. These include serious inflicted physical harm to children, as well as sexual abuse. If a parent’s severe omissions or gross negligence in care of a child (e.g., leaving very young children unattended) results in severe harm to a child or in his or her death, criminal charges will also be more likely under criminal child endangerment or other similar laws. In recent years, special criminal laws for causing the death of a child by the infliction of child abuse have been enacted. In criminal child maltreatment cases, judges who hear these proceedings do not have authority to remove children from parental care or from the family home, but they do frequently exercise authority to separate the adult from the child by imposing upon the defendant child access-related conditions of bail, pretrial release, or—after conviction— probation. The criminal court can also, upon the adult’s conviction, order restitution to be paid on behalf of the child, restitution that could, for example, include payment for the costs of a child’s treatment.
Civil Child Protection Laws
In every state, judges have authority under special laws to intervene in the lives of families due to parental abuse or neglect of their children. It is important to note that most substantiated cases of child abuse or neglect never result in a caseworker filing such cases in court, since the majority of child protective services interventions with families involve voluntary provision of home-based services to reduce the risk of further child maltreatment—and no civil court intervention is seen as necessary. The most common reason why these court cases are initiated is the need for a caseworker to obtain judicial authority for removal of a child from the home. These court actions may have unusual names—such as dependency, care and protection, child in need of care or assistance cases—or simply abuse or neglect proceedings. The authority of judges or other judicial hearing officers in these cases includes issuance of orders to have a child removed from or returned to the home based on safety and other considerations, as well as a common but not universal authority to order parents into treatment or require them—if they have been resistant—to appropriately participate in child protective-related services provided to them. Either through a separate civil court proceeding initiated after a judge finds a child abused or neglected or as a later disposition in the abuse or neglect civil child protection case, judges have authority in extreme cases to terminate all parental rights. In the last 25 years, these abuse or neglect and termination of parental rights cases have become more complicated, involving multiple special hearings and judicial requirements for certain factual findings at various case stages and increased participation at hearings by a wider group of participants, including attorneys for children, parents, and the child protection agency; no lawyer volunteer guardians ad litem or court-appointed special advocates (CASAs); foster parents; relatives; and others.
Other Court Proceedings Related To Child Protection
In addition to criminal cases resulting from child maltreatment and civil child protective court interventions, there are additional judicial proceedings where child maltreatment issues may be addressed. The first is in the domestic relations, or family, court, where abuse or neglect allegations may arise for the first time in the context of a divorce or other proceeding brought by one of the child’s parents. Domestic relations judges are occasionally called upon to resolve cases where, for example, a parent seeks a change in custody or a restriction or prohibition on visitation by the other parent due to allegations of child sexual abuse in that other home. The second additional court environment where child maltreatment allegations may arise is the domestic violence court. In many cases heard in these courts, there are children adversely impacted by the violence occurring between the adults, and the court’s issuance of orders of protection, requirements placed upon batterers, and other actions taken by the judge may need to include special protections and services for the affected child. The third judicial forum where child maltreatment cases may be addressed is in juvenile court delinquency or juvenile status offender proceedings. When a child is arrested or otherwise brought before the court for a criminal act or for running away from home or school truancy, the court may be apprised of facts that suggest a critical underlying problem facing the child is abuse or neglect in the home. It would not be unusual in such cases for a civil child protective proceeding to then be initiated. Finally, child maltreatment issues may also arise in mental health proceedings brought in court by a parent or other person seeking to have a child, who presents a danger to himor herself or others, committed to a psychiatric facility.
Stages Of The Legal Process In Civil Child Protection Cases
These cases often are commenced by a petition filed by a child protective services agency caseworker, or his or her attorney, seeking a judge’s order to have a child removed from the home. In rare situations, a caseworker may seek, even earlier, a judge’s order to help him or her overcome parental resistance to completion of an investigation of reported abuse or neglect. For example, a court order may be sought to ensure access to the child for interviewing, medical examination, or other purposes or for entry into the family home. Even if the court issues orders to aid completion of the child protective investigation, that does not mean a full child maltreatment civil protection case must be initiated since the result of the completed investigation may not warrant the degree of family intrusion found in judicial proceedings. If the judge authorizes removal of a child from home, even that act may not mandate a full child protective judicial proceeding. For example, a court order may have been sought because young children were left at home without parental supervision, but later the parent’s explanation, and voluntary services offered to help prevent a reoccurrence of the situation, may negate any necessity to pursue further judicial action. If, however, there is a court-ordered emergency removal, then typically within 24 to 72 hours of that order (unless the child is returned home) there must be a court hearing (sometimes referred to as the shelter care or initial hearing) at which the parent is present, the issue of continued placement is revisited, and an attorney is appointed for the parent if he or she cannot afford one, as well as an attorney, guardian ad litem, CASA, or some combination appointed for the child. At this, the judge will often hear preliminary evidence related to the child’s alleged maltreatment, but this is not a trial or adjudicatory hearing—which comes later.
If the case is not dismissed at the shelter care or initial hearing, in many courts representatives of the child welfare agency, parent, and child will be asked to explore whether there can be an agreement (stipulation) as to the facts and possible resolution of the case. In some courts, there is a mediation program, family group conferencing process, or other mechanism to attempt resolution in a no adversarial manner. If such efforts fail or are not part of the court’s array of services, then the next phase of the case may include the filing of various legal motions and other activities geared toward sharing key information that led to court proceedings. This phase is often called the discovery process and typically involves attorney access to child protective services case records and other information vital for each of the parties (agency, parent, and child) to prepare for the trial of the abuse or neglect allegations. The trial is known as the adjudication (or adjudicatory) hearing. The rules of evidence strictly control witness testimony and the introduction in court of any material related to the allegations. The government child protection agency will have the burden of proving that the allegations in its petition are true. If the court concludes the child was abused or neglected, then the next phase will be the disposition hearing. At this, the court will review the child welfare case plan and specially prepared reports to the court, hear additional testimony, and then decide among several possible courses of action, ranging from having the child at home subject to ongoing child welfare agency protective case supervision, to (in some states) the ability of the judge to permanently terminate parental rights. The most common dispositional actions, if the child remains in foster care or other out-of-home placement, is to continue monitoring the agency’s implementation of the family’s case plan by setting periodic review hearings (often at 3to 6-month intervals) to help move as quickly as possible toward a safe and permanent placement for the child.
At and after the disposition hearing, judges have authority to order the child left with or returned to his or her parent, kept in the current placement, or placed elsewhere (e.g., with a relative). Federal law requires states receiving federal financial support for foster care placements to have judges hold one additional type of special hearing, known as the permanency hearing. At such hearing (which is supposed to be held no later than 12 months from the date the child enters foster care), the judge is required to make a case determination with one of the following options: the child’s return home immediately or at some date soon; permanent placement with a relative, foster parent, or other nonrelative; permanent legal guardianship; another specified permanent legal arrangement; or termination of parental rights to then permit the child to be adopted.
- Hardin, M. (2005). How to work with your court: A guide for child welfare agency administrators (2nd ed.). Washington, DC: ABA Center on Children and the Law.
- Jones, W. G. (2006). Working with the courts in child protection (3rd ed.). Washington, DC: U.S. Department of Health and Human Services, Children’s Bureau.
- National Council of Juvenile and Family Court Judges. (1995). Resource guidelines: Improving court practice in abuse and neglect cases. Reno, NV: Author.
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