2011-08-16 03:07:18 by admin
In 2005, more than 3.3 million reports of suspected Child Abuse or neglect were reported to state Child Protection agencies in the United States. Those reports led to a finding of substantiated maltreatment involving nearly 900,000 children, or about 12 per thousand, including 1,400 child fatalities, according to the U.S. Department of Health and Human Services. This entry reviews the general legal definition of abuse and neglect, the evolution of the role of the state in protecting children from maltreatment at the hands of their parents or caregivers, and the contribution of federal statutes to the shaping of state Child Protection policies. The entry concludes by highlighting the responsibilities state laws place on schools and educators to report suspected Child Abuse and neglect.
There is no single, authoritative definition of Child Abuse and neglect. Both federal and state laws define Child Abuse and neglect, with federal law providing a general definition that states tend to elaborate on in their civil and criminal codes. The federal definition, found in the Child Abuse Prevention and Treatment Act of 1974, provides that Child Abuse and neglect includes, as to a child under 18 years of age: “Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation” or “an act or failure to act which presents an imminent risk of serious harm.”
State laws aimed at protecting children provide greater definitional detail. They commonly enumerate and define what constitutes each of several forms of child maltreatment. These forms include neglect, physical abuse, sexual abuse, and emotional abuse. Insofar as each state’s definition may differ, it is important for educators to consult the provisions found in their state codes in order to appreciate the scope of Child Protection provisions applicable in their jurisdiction.
The legal status of children has varied dramatically over time and across cultures. Historically, in many cultures, children enjoyed no independent legal recognition from their parents or the family. In such times and cultures, the actions of parents with respect to their offspring were largely unchecked by societal authority, as evidenced in the extreme by the legally sanctioned practice of infanticide.
Over time, children in many societies have come to be legally recognized as individuals with interests separate and distinct from those of their parents. In such societies, including the United States, the government or state has not only accorded children independent legal status, but also moved, under the doctrine of parens patriae, to pierce family boundaries and interpose itself between the parent and child where the child’s welfare is threatened by the action or omission of the parents.
While extreme forms of maltreatment have long been prohibited in the United States, significant changes in the legal status and level of protection afforded children began to emerge in the late 19th century with the introduction of Juvenile Courts, and they grew throughout the 20th century with the first White House Conference on Children in 1909 and the creation of a national Children’s Bureau in 1912, followed a decade later by congressional action encouraging the formation of similar bureaus at the state level. As concern about the welfare of children grew, the rights of parents with respect to their offspring were being moderated.
Even though the Supreme Court’s opinion in Pierce v. Society of Sisters of the Holy Names of Jesus and Mary (1925) agreed that parents have certain Fourteenth Amendment liberty interests in making decisions regarding the education and upbringing of their children, it upheld those interests only insofar as the state interference was considered arbitrary or unreasonable. In its 1944 judgment in Prince v. Massachusetts, the Court upheld, against challenges under the First and Fourteenth Amendments, the prerogative of states to enforce laws regulating child labor by sanctioning anyone, including parents, who provided a minor with items to sell or distribute on the streets or in public places.
The independent legal status of children also gained stature in the ensuing decades. The Supreme Court extended legal protections in the form of assurances of procedural due process to minors in juvenile court proceedings in In re Gault (1967) and to secondary students in school disciplinary proceedings leading to suspension in a 1975 case, Goss v. Lopez. Within the same 10-year period, the Court, in a First Amendment case, Tinker v. Des Moines Independent Community School District (1969), declared students to be “citizens” for the purposes of the Constitution.
During the same period, new insights were beginning to emerge with respect to the phenomena of Child Abuse and neglect. A national survey of emergency room physicians by C. Henry Kempe, a Denver physician, led in the early 1960s to the identification of the “battered child-syndrome” as an alternative explanation regarding what brought certain children to the emergency rooms with multiple skeletal injuries in different stages of healing. This explanation was soon to replace the “accident-prone child” thesis previously prominent in the medical literature.
As often happens when a problem gains public recognition, federal policymakers respond. In 1974, Congress enacted the Child Abuse Prevention and Treatment Act providing grants to encourage states to strengthen their then rudimentary policies with respect to the identification of children who are abused and neglected and with respect to the provision of services to help families overcome maltreating practices or behaviors. That act served initially to establish a set of minimum standards for state Child Protection policies and agencies. Successive reauthorizations and amendments to that legislation, most recently in the form of the Keeping Children and Families Safe Act of 2003, have raised those standards while continuing to permit some state flexibility in the delineation and definition of various types of child maltreatment and in state responses to maltreatment. These reauthorizations and amendments have also recognized that competing values are associated with the importance of preserving the family as a social unit and with the need to ensure the safety of children in the short term and the permanency of alternative care arrangements in the long term should they be necessary.
At a minimum, though, statutes or administrative rules in virtually all states designate a department or agency responsible for Child Protection and prescribe its duties as well as procedures governing report screening and investigations, case assessment and substantiation, central registry maintenance, agency interventions and services, and court petitions for supervision, the removal of children, and termination of parental rights. The presence of common elements, if not common provisions, can be traced in substantial measure to federal inducements and capacity-building grants to the states.
Particularly relevant to educational officials are the reporting responsibilities of educators under state Child Protection policies. In virtually all states, educators as well as a host of other child-serving professionals, both inside and outside of schools, are designated as mandated reporters. This legally compels them, on forming a “reasonable suspicion” of abuse or neglect in virtually all states, as well as suspicion of an imminent threat to the safety and wellbeing of the child in other jurisdictions, to make an immediate report to the state Child Protection agency in the locality where the child is found or resides.
While the precise terminology used to trigger a report varies somewhat, state policies uniformly establish a low threshold similar to “reasonable suspicion” for requiring a report. State policies also encourage the making of reports by almost universally insulating mandated reporters from civil liability should their reported suspicions prove to be unsubstantiated after investigation by the Child Protection agency. This qualified Immunity shields educators in all situations except where reports are made in bad faith, recklessly, or where the reporter knows the report is false. On the other hand, most states expressly impose criminal sanctions or civil penalties on mandated reporters who fail to file required reports where they actually knew of or should have suspected abuse or neglect based on the exercise of ordinary diligence. The failure to report may also result in civil liability for educators, who can be held responsible in most jurisdictions for injuries sustained by the child as the proximate cause of their failure to carry out their duty as mandated reporters.
Charles B. Vergon
See also Child Abuse; Children’s Internet Protection Act; Goss v. Lopez; In re Gault; Pierce v. Society of Sisters of the Holy Names of Jesus and Mary; Parens Patriae; Tinker v. Des Moines Independent Community School District
Further Readings
Legal Citations