|Analysis of S. 1877 - The "Speak Up to Protect Every Abused Kid Act"|
December 7, 2011
RE: ANALYSIS OF S. 1877—THE “SPEAK UP TO PROTECT EVERY ABUSED KID ACT” (SENATORS CASEY AND BOXER)
CONCLUSION: S. 1877 WILL NOT ADDRESS THE PROBLEMS RAISED BY THE PENN STATE SEXUAL ABUSE SCANDAL AND WILL MAKE IT HARDER FOR CHILD PROTECTION AGENCIES TO PROTECT CHILDREN IN DANGER OF ABUSE OR NEGLECT.
In response to the scandal at Pennsylvania State University, Senators Robert Casey (D. Pa.) and Barbara Boxer (D. Ca.) introduced S. 1877, “Speak Up to Protect Every Abused Kid Act.” The following is an analysis of the major changes in law proposed in the pending bill, including issues of interpretation of the proposed amendments that raise significant implementation concerns.
I. Current Federal Mandatory Reporting Law (“CAPTA”)
The federal Child Abuse Prevention and Treatment Act (CAPTA), codified at 42 U.S.C. § 5101 et seq., was adopted in 1974 and creates a mandatory reporting requirement for all “recent” cases of child abuse causing imminent risk to a child. These cases are required to be reported to authorities in accordance with each state law’s definition of a “mandatory reporter.” Specifically, the federal law requires the following:
· Mandatory reporting of child abuse, which is defined as “any recent act or failure to act, on the part of a parent or caretaker, that results in death, serious physical or emotional harm, or sexual abuse or exploitation, or an act or failure to act that presents an imminent risk of serious harm.”
· An assurance in the form of a certification by the Governor of each State that “the State has in effect and is enforcing a State law, or has in effect and is operating a statewide program, relating to child abuse and neglect that includes provisions or procedures for an individual to report known and suspected instances of child abuse and neglect, including a State law for mandatory reporting by individuals required to report such instances.” (Italicized language is proposed to be amended in S. 1877).
Most states already define mandatory reporters broadly enough that all persons who come into contact with children through a professional relationship to children are treated as mandatory child abuse reporters under the relevant state reporting law. For example, doctors and teachers are mandatory child abuse reporters in every state. Similarly, psychologists and social workers are mandatory reporters in virtually all states. Indeed, some states define mandatory reporters so broadly that acupuncturists, animal control officers and funeral directors are mandated reporters. See, e.g., Illinois, 325 ILCS 5/4. Typically, only attorneys and clergy are excepted professions from the duty to report, due to the special privileged nature of the communications they receive from clients/parishioners.
States vary substantially in their definitions of abuse and neglect, but CAPTA sets a floor requirement as to what must be reported under state laws. States also vary substantially as to whether persons other than parents and guardians are potential targets of child abuse investigations. In many states, including Illinois (where the Family Defense Center practices and has litigated concerning the due process rights of persons who work with children in the child abuse investigation system) any professional person who cares for children can be the target of a non-criminal child abuse investigation and “registered” as guilty of a child abuse offense through a substantiated or indicated report. In a number of other states, however, including New York and Pennsylvania, only parents and persons acting in a parental capacity are subject to the child protection system investigation; abuse by non-parental figures is subject only to criminal investigation and determination.
II. Proposed Changes in S. 1877 to the CAPTA
A. New Proposed Language
In addition to the current definition of child abuse in the law, child abuse or neglect would also be defined to include “any deliberate act, on the part of an individual other than a parent or caretaker, that results in death, serious physical or emotional harm, or sexual abuse or exploitation, or that presents an imminent risk of serious harm to a child.”
In place of the language italicized in section I above, the Governor of each State would be required to certify that the State has provisions or procedures for an individual to report “suspected or known [in place of known “and” suspected] incidents of child abuse or neglect to a State child protective service agencies (sic) or to law enforcement agencies, which shall include a State law for mandatory reporting of such incidents, to either type of agency, by any adult.” (Language making a change to current law is indicated in bold.)
The four main changes made in the law introduced by these amendments thus include:
1. An expansion of the definition of child abuse to include “any deliberate act, on the part of an individual other than a parent or caretaker that results in death, serious physical or emotional harm, or sexual abuse or exploitation, or an act or failure to act that presents an imminent risk of serious harm;”
2. Inclusion of mandatory reporting of abuse by non-parents and non-caretakers when a “deliberate” act results in serious harm to a child;
3. A requirement that states provide a system allowing reports of abuse or neglect be made to both the child protective service agency and law enforcement agency, whereas current law only requires states provide a system for reporting to the child protective service agency;
4. A requirement that mandatory reports of child abuse be made “by any adult.”
B. Discussion of The Above Changes to Federal Law Included in S. 1877
The changes to federal law raise significant concerns about the ability of child protection agencies to ensure child safety; implement the required changes; correctly and consistently apply the new requirements; provide due process protections for persons identified in the reports; and provide adequate governmental and related agency resources to address the volume of calls that would result from the proposed changes.
1. The feasibility of implementation is in question, thus drawing attention away from those children most at risk and requiring State intervention.
Current statistics on reporting raise serious concern as to whether children and families would be served well by mandating that all adults, regardless of training or relationship to the child, be mandatory reporters. According to the U.S. Department of Health and Human Services 2009 Child Maltreatment Report (chapter 2), 6,000,000 children were the subjects of Hotline calls to child protection authorities. Sixty percent (60%) of the reports were from professionals mandated to report (mandated reporters under current law). However, only 23.4% of all Hotline calls (less than one in four) nationally result in a determination that the allegations are substantiated or indicated. See http://www.acf.hhs.gov/programs/cb/pubs/cm09/cm09.pdf.
Making all adults mandated reporters will lead to a massive increase in the number of calls that are not likely to be deemed meritorious by authorities. A radical increase in the number of persons who must report suspected abuse or neglect (i.e., all adults) and the circumstances in which reports must be made is likely to cause an exponential increase in the 6,000,000 figure of children already subject to abuse and neglect reports each year. Moreover, while the attention in the Penn State case has centered on child sexual abuse, it should be kept in mind that nearly 80% of Hotline calls concern neglect allegations (e.g., lack of food, clothing, shelter, or supervision), not physical or sexual abuse. While many cases of child abuse may be clear-cut and obvious, such as the sexual penetration of a young child by a parent or guardian, a substantial majority of child abuse calls—even those made by mandated reporters who have professional training in areas related to care of children—are deemed unfounded, meaning that the acts believed to constitute abuse were not, in fact, abuse, or sufficient credible evidence to support an abuse or neglect determination was not found during investigation.
2. Potential misapplication of the new requirements can place children and families at unnecessary risk of State intervention.
S. 1877 makes the dangerous assumption that every Hotline call made by an abuse or neglect reporter will receive a discriminating screening by child protection authorities. This assumption is dead wrong: State child protection authorities are overwhelmed by such calls and often send bogus allegations to the field for investigation. When these allegations are investigated, most are properly deemed unfounded. But even when the child protection agency has initially substantiated a report, federal court litigation has demonstrated very high rates of error. See, e.g., Dupuy v. McDonald, 141 F. Supp. 2d 1090 (N. D. Ill. 2001), aff’d in relevant part, 397 F. 3d 493 (7th Cir. 2005) (reporting a 74.5% reversal rate in Illinois of indicated findings upon neutral review by trained magistrates) (Note: Dupuy is a case in which the Family Defense Center is lead counsel).
Investigations are themselves highly traumatic for children and families. Currently, child abuse reports are very often made by contending family members in custody cases and can pit children between warring adults, and State systems do not effectively screen out such calls. Calls are also sometimes made by other persons who are seeking an advantage against an adverse party, by anonymous persons (anonymous reporting is permitted in many states) for reasons that are impossible to discern, and by well-meaning persons who have a genuine doubt as to whether abuse or neglect has occurred (including where a medical condition has been found that could be accidental or could be due to abuse). During investigations that ensue from these reports, children are often interrogated and traumatized, and parents are often forced to leave their home pending the outcome of investigations that prove to be unfounded. See, e.g., Dupuy v. Samuels, 462 F. Supp. 2d 859 (N. D. Ill. 2005), nominally aff’d and remanded, 465 F. 2d 757 (7th Cir. 2006) (detailing numerous examples of families threatened with the removal of their children into foster care if they did not separate from their children during an investigation, in cases that were ultimately unfounded). Clearly, child abuse calls that are unwarranted (because there is no genuine concern of real and harmful abuse occurring) are damaging to children and families and should be limited.
In addition, adding mandatory abuse reporting for many categories of harms to children committed by non—parents may be difficult to administer in a number of states that do not currently have investigative authority over non-parental abuse except under criminal law. Sensitive employment relationships are affected by these reports and care must be taken to avoid intrusion by child protection authorities into employment relationships when the facts of these allegations are still being investigated. Without more guidance as to how the outcome of such investigations will be processed in states that do not currently have non-parental abuse reporting, the legislation may cause significant harm to innocent employees who work with children, just as was occurring in Illinois at the time the Dupuy suit was filed. See 141 F. Supp. 2d 1090.
3. The definitions in S. 1877 raise considerable interpretation questions that will not be easy for states to implement consistently.
The provision in S. 1877 that expands the definition of “abuse” to include “any deliberate act, on the part of an individual other than the parent or caretaker, that results in death, serious physical or emotional harm, or sexual abuse or exploitation . . .” raises two significant questions: (a) how the “deliberate” nature of the act is to be inferred by the person making a report, since “deliberation” is a matter of intent that requires inferring a state-of-mind of the actor; and (b) whether a wide range of “deliberate” acts that happen to be “but for” causes of injury to a child will need to be reported to authorities. For example, medical treatment may be given deliberately, but it can have a harmful effect on the child that is not anticipated. The same can be said about a direction given to a child in a sporting activity that causes injury, as well as the wide range of commonplace accidents that occur due to some form of “deliberate” action by a person who does not intend harm or malice. Under S. 1877’s broad language, many innocent actions that are deliberate, but that cause unintended harm, could be subject to mandatory reports to law enforcement and child protection authorities.
4. The lack of sufficient resources to implement the new requirements increases the risk that calls concerning abuse and neglect will become lost in an uncoordinated and overwhelmed system.
S. 1877 requires that reporting of abuse and neglect is to be done to either or both law enforcement and child protective service agencies at the discretion of the reporter. Current law does not require states to provide for mandatory reporting to law enforcement authorities. S.1877 appears to create an unprecedented duty to make calls to criminal law authorities. It is unclear how calls made to law enforcement, rather than child protection agencies, will be sorted out. Child protection authorities do not have jurisdiction over many criminal offenses committed by persons who are not in a position of caretaking responsibility toward a child. Law enforcement authorities do not have the responsibility, generally speaking, to bring actions in family or juvenile courts with regard to the care and custody of the child. By giving to the abuse reporter the option of which agency to call, the legislation anticipates the necessity for significant resources and coordination of calling between law enforcement agencies and child protection agencies which currently may have much more limited cross-referral protocols (governing, for example, sexual abuse cases rather than all neglect cases).
5. S. 1877 does not include due process protections for children and families who are subjected to unwarranted investigations and erroneous findings, and States are already struggling to afford due process in the current system.
S. 1877 does not reckon with the legal rights of children and families to due process. Currently, several states are under court orders that require changes in the child abuse registry procedures. For example, the Illinois Department of Children and Family Services was sued in Dupuy for using “practically nominal” burdens of proof in “indicating” persons as guilty of child abuse and then failing to provide them timely hearings. California has been directed to develop due process procedures but has yet to do so. See Humphries v. Los Angeles County, 554 F. 3d 1170 (9th Cir. 2009). New York was sued for losing thousands of case files for appeals from registered findings of abuse. See Finch v. N.Y. Office of Children and Family Servs., No. 04 Civ. 1668, 2008 U.S. LEXIS 103413 (S.D.N.Y. Dec. 19, 2008). And there have been a number of state court lawsuits that have challenged the lack of due process in the investigation/finding system for Hotline calls. Opening the door to massive new investigations caused by “any adult” will carry with it a duty on the part of states to make due process available to those who come to be investigated, especially if “false positive” child abuse reports result.
Current law establishes mandatory child abuse reporting by a wide range of professionals who work with children. State and local child abuse investigation agencies labor under heavy workloads, with current levels of child abuse reporting reaching 6,000,000 children. A number of states have been sued to provide due process to protect against demonstrated high rates of unreviewed errors in investigation determinations. Fewer than one quarter of child abuse reports are substantiated (and even these are subject to high rates of reversals when reviewed by neutral magistrates), and of the substantiated cases nearly 80% concern allegations of neglect, not abuse. Efforts to broaden the mandate for child abuse reports, especially by requiring “any adult” to report suspected abuse, would be extremely challenging to implement without flooding already-strained systems and are likely to dilute the impact of State intervention and potentially hurt children who are true victims of abuse.
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