Since the 1993 National Research Council (NRC) report was published, numerous changes have been made to federal and state laws and policies designed to impact the incidence, reporting, and negative health and economic consequences of child abuse and neglect. This chapter reviews the foundations for the development of child abuse and neglect law and policy and describes the current environment of laws and policies related to child abuse and neglect at both the federal and state levels. Also discussed is the evaluation and analysis of these laws and policies. Related research needs are detailed as well.
Policy change in the child protection arena frequently has resulted from a synergistic set of factors: (1) the development of and reporting on evidence that a specific practice reform has had a positive impact, (2) the existence of one or more models or demonstrations of successful implementation of such reforms, and (3) a combination of clinician and advocacy community support for legislation that further promotes the reforms. Thus, for example, it was these factors that led to federal legislative policy reform making voluntary home visiting more widely available through Section 2951 of the Patient Protection and Affordable Care Act. This Maternal, Infant, and Early Childhood Home Visiting Program is designed to strengthen and improve related programs and activities, improve coordination of services for at-risk communities, and identify and provide evidence-based home visiting programs that can improve outcomes for families residing in at-risk communities.
Although the scope of what constitutes “policy” includes both legislation and government agency regulations, protocols, and so on, this chapter
addresses primarily the evolution of federal and state laws on child abuse and neglect as they affect knowledge and practice. Regulations and protocols are typical results of the process of implementing laws at the state and local levels. However, a nonstatutory “policy” reform can also be national in scope. Examples are the recommendations for policy reform issued in the early to mid-1990s by the U.S. Advisory Board on Child Abuse and Neglect.
For example, recommendation 13 of the Advisory Board’s first report, Child Abuse and Neglect: Critical First Steps in Response to a National Emergency (U.S. Advisory Board on Child Abuse and Neglect, 1990, p. 138), calls on the Secretary of Health and Human Services (HHS) to “launch a major coordinated initiative involving all relevant components of the Department of Health and Human Services to promote the systematic conduct of research related to child abuse and neglect.” The Advisory Board’s second report, Creating Caring Communities: Blueprint for an Effective Federal Policy on Child Abuse and Neglect (U.S. Advisory Board on Child Abuse and Neglect, 1991) focuses on the broad federal government response to child abuse and neglect. The report calls for enactment of a “National Child Protection Policy,” one goal of which would be to drive the child protection–related actions of all federal agencies. The report includes a nine-page “Proposed National Child Protection Policy” and a call for an appropriate federal research agency to determine the cost of implementing such a policy, as well as the cost of not doing so. To help prevent child abuse and neglect, the report’s recommendations also include the first call by a blue-ribbon federal panel for national implementation of universal voluntary neonatal home visitation (what the report calls a “dramatic new federal initiative aimed at preventing child maltreatment”). Included as well are four pages of recommendations for improving federally supported research and evaluation related to child abuse and neglect.
The Advisory Board’s fourth report, Neighbors Helping Neighbors: A New National Strategy for the Protection of Children (U.S. Advisory Board on Child Abuse and Neglect, 1993), again addresses federal research policy, calling on federal agencies to subject federally supported child protection activities to rigorous evaluation; calling on the National Institute of Mental Health to solicit research aimed at clarifying the relationships among social support, culture, and child abuse and neglect; and urging that federally supported research also assess children’s, parents’, neighbors’, and workers’ own experiences of the context in which child abuse and neglect occurs and their perceptions of systemic responses to the problem.
At its core, the debate around the development of laws and policies to help prevent child abuse and neglect involves questions of public value (Pecora et al., 2000). It also involves trade-offs entailed in law making between public benefit and private interests. For example:
• What is the balance between children’s fundamental right to be safe and parents’ right to raise their children as they see fit?
• Should the government’s role be to offer families, on a voluntary basis, services related to the protection of their children, or to force families to accept services they could construe as unwanted government intrusion into family life?
• How can policy promote fairness in child protective interventions, recognizing, for example, that some families come from different cultures whose practices may not coincide with what is covered by child protection laws?
• What is the appropriate balance between the due process rights of parents not to have child abuse or neglect case records preserved by child protection agencies in cases that are very old or in which a report of abuse or neglect was not substantiated and the authority of states to maintain appropriate central registries of child abuse and neglect case-related data that might later be used as part of child protection efforts?
The development of child abuse and neglect laws and policies should include the application of reason, evidence, and an evaluative framework to such decisions (Pecora et al., 2000). The application of reason refers to public discourse by practitioners, advocates, researchers, and legislators (Pecora et al., 2000). The evidence for passing laws and changing public policy is derived from a variety of sources, some explicitly guided by research and scientific evidence and others reflecting social consensus about legitimate government activity. For example, even though research evidence suggests that lengthy incarceration for acts of violence is not always necessary for community safety, it is widely supported by citizens because of the societal functions of punishment for wrongdoing and justice for victims.
The evaluative framework for child abuse and neglect laws and policies lies with the ability to anticipate and deal with a series of predictable problems that occur as a result of the laws’ and policies’ implementation. Research helps answer questions when those answers are critical to effective implementation. For example:
• Is banning the behavior targeted in legislation, such as certain forms of corporal punishment that are most likely to cause serious injury to a child, likely to reduce the rate of child abuse and neglect-related fatalities?
• Are safe haven laws (permitting a mother to, without legal consequence, abandon a newborn child safely) constructed so as to reduce the number of child abandonments and even deaths of unwanted children that would have occurred in the laws’ absence?
• Are there sufficient resources to educate those persons included in a law as mandated reporters of child abuse and neglect, and what is the impact of changing the requirements for who must report or what must be reported?
• Is there sufficient public support for changing the definition of what constitutes child abuse and neglect under state law?
Given these complexities, the research design needed to evaluate laws and policies is not always the same as the design one would use to evaluate practice interventions. Although some laws and policies can be evaluated by random assignment (e.g., studying the differential response approach of social services in responding to child abuse and neglect reports), random assignment cannot be used if it would differentially affect the legal rights of citizens, if it would subject citizens to unequal treatment under the law, or if it would place children in jeopardy. Furthermore, simply studying the incidence of child abuse and neglect in the aggregate (such as at the state or national level) is unlikely to aid in determining and attributing its potential causes.
Another difficulty in evaluating laws and policies related to child abuse and neglect is that adherence to a law, such as a mandatory reporting law, often is predicated on public knowledge, understanding, and support that frequently vary across practitioner disciplines, as well as within and among states. Finally, many of the changes in child abuse and neglect laws and policies over the last few decades have been incremental changes to existing legislation (such as the federal Child Abuse Prevention and Treatment Act [CAPTA]). In those cases, what is needed in terms of law and policy analysis or evaluation is research on the implementation and augmentation of the law or policy, rather than the core law or policy itself.
Given these difficulties in conducting analyses of laws and policies and the fact that laws and policies vary by state, the paucity of research in this area is unsurprising.
Federal and state laws define what constitutes the abuse and neglect of children. They also designate those who must report suspected child abuse and neglect, or make all citizens with reason to suspect abuse and neglect mandated reporters. State laws addressing the abuse and neglect of children were passed in all 50 states following the 1962 amendments to the Social Security Act that required all states to include child protection in their child welfare systems (Myers, 2008). At the same time, the 1962 article “The Battered Child Syndrome” (Kempe et al., 1962, 1985) gave rise to public concern that many voluntary societies for the prevention of cruelty
to children were disappearing, having been largely replaced by government counterparts known today as child protective services agencies.
In 1974, passage of CAPTA1 established state responsibilities for child protection and supported the execution of these responsibilities with new federal money for state programs and national research. CAPTA has been reauthorized multiple times, most recently in 2010 (CWIG, 2011a). As discussed below, CAPTA provided a federal definition of child abuse and neglect and set into motion a series of reforms of state laws, policies, and practices.
One direct consequence of CAPTA was the establishment within HHS of a National Center on Child Abuse and Neglect. This center was subsequently made an office with, unfortunately, far fewer staff, as a part of reorganization within the department. CAPTA also created authority for the aforementioned U.S. Advisory Board on Child Abuse and Neglect,2 a blue-ribbon expert panel, but after releasing four reports, it was disbanded and never revived.
Some support for child abuse and neglect research has continued to be provided by the Office on Child Abuse and Neglect. However, policy-related research continues to be extremely underdeveloped. Important research-appropriate policy issues affecting hundreds of thousands of children annually relate to such topics as
• mandatory reporting;
• child abuse central registries (record-keeping repositories) and related issues of constitutional rights;
• education of potential child abuse and neglect reporters, sometimes tied to health professional licensing;
• the use of safety and risk assessment instruments by child protective services agency personnel;
• training in child abuse and neglect and family violence in medical and other professional schools;
• organization of child protection service delivery at the state or county government level;
• adoption of new approaches to working with families in which child abuse and neglect is suspected, such as differential response and family group decision making;
• in increasing numbers of states, replacing the traditional process of making substantiation decisions in all cases of reported child abuse and neglect that are investigated with an assessment process that does not label parents as having abused or neglected their child;
1U.S.C. 42 § 62.
2U.S.C. 42 § 5102.
• use of kinship foster care as an alternative to traditional foster care;
• emphasis on the safety, permanency, and well-being of children after termination of parental rights; and
• the appropriate role for law enforcement and the courts in helping families care for their children and in helping to ensure that children’s safety, permanency, and well-being needs are addressed.
Some policy changes appear never to be questioned, even in the absence of evidence to support their wisdom. These changes include instituting or broadening the scope of mandated reporting of suspected child abuse and neglect. Policy research could and should assess the likely consequences before policy changes are made—for example, when a definition of abuse or neglect is broadened to include children who are witnesses to or otherwise exposed to domestic violence in the home.
Since the 1993 NRC report was issued, a variety of controversies have arisen that strongly suggest the need for additional policy-related research. These include, for example, concerns about racial and socioeconomic bias in the making of child abuse and neglect reports (Drake and Zuravin, 1998; Drake et al., 2011; Lane et al., 2002; Magruder and Shaw, 2008) and wide variation in the interpretation of legal requirements by mandated reporters for reporting reasonable suspicion of child abuse or neglect (Levi and Brown, 2005). It is critical that legislators and program administrators support research designed to carefully examine the federal and state laws that guide responses to child abuse and neglect and build a new knowledge base to guide the implementation of policy changes.
This section reviews key federal laws and policies designed to address the incidence and consequences of child abuse and neglect that have been enacted over the last several decades and suggests areas in which future research is needed.
The Child Abuse Prevention and Treatment Act
In 1974, CAPTA3 authorized, among other things, very modest funds for a state grant program focused on initial child protective intervention in cases of suspected abuse or neglect; Congress has since appropriated these funds annually. Despite the limited funding they have received, all states have made significant changes to their child abuse and neglect legislation as mandated by CAPTA’s eligibility requirements. CAPTA has been reau-
342 U.S.C. § 5101 et seq.
thorized every 4-8 years since 1974 (CWIG, 2011a), and reauthorizations have nearly always modified or added new eligibility conditions; as a result, the language of state laws has undergone continual changes to comply with CAPTA.
Definitions in CAPTA
CAPTA sets 18 as the age up to which states must have laws on reporting of child abuse and neglect that mandate a child protection system response. The committee knows of no research on how states and counties respond to reports of abuse or neglect involving older teens, or on what child protection agency practices best address youth aged 16 or 17 who are reported as suspected victims for the first time.
CAPTA also limits the term “abuse and neglect” to acts or failures to act by parents or caretakers. Some states do not so limit the perpetrators of abuse and neglect, but include reporting of child abuse and neglect allegedly committed by those outside of the child’s home (as a recent example, sports coaches). The CAPTA limitation on who a perpetrator of abuse and neglect may be results in many states having skewed data on child abuse, especially child sexual abuse, because only intrafamilial incidents may be reported in many states. The committee knows of no research that has looked at how a state’s definition of a perpetrator of abuse and neglect affects children’s protection from abuse and neglect overall.
In one of its periodic congressional reauthorizations, CAPTA also gave states the option of mandating reporting of only those acts, or failures to act, of alleged abuse and neglect that are recent and that have resulted in physical or emotional harm to the child that is considered serious. Although few states have such limiting language in their definitions of what must be reported, there is no evidence on whether this limiting language results in abused and neglected children falling through the cracks or whether child protective services agencies receive large numbers of reports in which the harm to children is not considered serious.
Likewise, the committee has seen no research on how the CAPTA definition of sexual abuse, which was broadened to include acts related to the production of child pornography, statutory rape, and prostitution of children, has affected the protection of those children. Given the wider recognition of and concern about child sexual victimization, research on the impact of states having this broadened language on reportable sex crimes involving children would be most helpful.
Still another expanded definition of what is understood to be child abuse and neglect, and again one that has not to the committee’s knowledge been studied, is the inclusion of a form of medical neglect, or the “withholding of medically indicated treatment of disabled infants with life-
threatening conditions.” These have been referred to as “Baby Doe” cases, and a great deal of attention was originally focused on a few cases of severely disabled infants in hospitals who died after allegedly being deprived of treatment (U.S. Advisory Board on Child Abuse and Neglect, 1991). The Baby Doe provision of CAPTA remains in effect, but the committee could find no research on the frequency, outcomes, or cost of handling these cases. This type of case is different from the more general “medical neglect” of a child’s health needs, which sometimes leads to child protective interventions. There are occasionally religious reasons for withholding treatment (e.g., parents who refuse a blood transfusion, transplant, cancer treatment, etc., on religious grounds). CAPTA requires states to have processes in place whereby a court can order treatment in these circumstances. Another “medical neglect” issue potentially arises in cases where infants are left in neonatal intensive care units for weeks or months at a time, and their parents fail to visit. The committee is unaware of research related to any of these issues.
Title I of CAPTA
The State Grant Program under CAPTA is for “improving the child protective services system” of each state, specifically by supporting a wide range of comprehensive activities. To obtain CAPTA funding to support their child protective services programs, states must comply with congressionally mandated eligibility conditions. Not counting the Baby Doe (protection of severely disabled newborns) response requirement described above, CAPTA currently includes more than 20 requirements for state laws or statewide programs that must be met for a state to receive an annual State Grant. During the years since these provisions were incorporated into federal law, little to no investment has been made in studying how these requirements are best implemented.
State legislatures have continually added to these provisions, in different ways. For example, state legislatures have broadened the scope of who must report suspected child abuse and neglect, penalized the making of false reports of abuse and neglect, extended access to child protective services records to members of multidisciplinary child protection teams, required cross reporting of cases by child protective services to the police (and vice versa), and required that a child’s guardian ad litem be an attorney. Again, little or no investment has been made in research to learn whether these changes better protect children.
Few of these changes to CAPTA have ever been examined scientifically with respect to their positive or negative impact. For example, one change to CAPTA mandated hospital referrals to child protective services when infants are born with and identified as being affected by illegal substance
abuse, even though the birth of a drug-exposed newborn is generally, in and of itself, not legally considered abuse or neglect. The latest 2010 reauthorization of CAPTA added to this requirement a referral to child protective services for children born with a fetal alcohol spectrum disorder (Children’s Bureau, 2011).
Research is similarly lacking on the implementation of other additions to CAPTA’s eligibility requirements. They include (1) a requirement for public disclosure of findings or information in cases of child abuse and neglect-related fatalities or near fatalities, (2) prompt expungement of child protective services records for certain purposes when reports are determined to be unsubstantiated or false, (3) a mechanism for individuals who disagree with an official finding of abuse or neglect to appeal that finding, (4) a requirement for child protective services employees to advise adults accused of abuse or neglect of the allegations made against them at the time of initial contact with child protective services, (5) mandated training of child protective services caseworkers on their legal duties to protect the rights of children and families, and (6) a requirement for every child under age 3 who is substantiated as an abuse or neglect victim to be referred for early intervention services funded under Part C of the federal Individuals with Disabilities Education Act (IDEA).
Some other CAPTA eligibility requirements track emerging best practices in the field. Except for the support of the Children’s Bureau in studying the implementation of differential response and some statewide studies of that practice reform, however, the committee is unaware of any investment in research to determine how these CAPTA-promoted best practices are being implemented across the country.
One eligibility requirement of CAPTA that has been studied involves important state citizen oversight of child protective services. Every state must establish and maintain “citizen review panels” to examine the policies, procedures, and practices of child protective services. Panel examination is supposed to include a review of handling of specific cases and the extent to which child protective services is effectively discharging its responsibilities. Although research has examined the impact of these panels, further study of how their recommendations have or have not resulted in positive reforms of their states’ child protection systems is needed.
Discrepancies/Issues with Reported Child Abuse and Neglect Data
CAPTA mandates that states annually provide “to the maximum extent practicable” a data report that now (since the 2010 CAPTA reauthorization) includes 16 separate types of data (Children’s Bureau, 2011). Some of the required data are straightforward, such as (1) the number of children reported as suspected child abuse and neglect victims; (2) the number of
those reports that were substantiated, unsubstantiated, or determined to be false; (3) the number of child abuse and neglect-related deaths, both in the children’s homes and in foster care; and (4) the number of child protective services personnel in different categories (e.g., intake, investigation), their average caseload, and their education and qualifications and training requirements. Compiling accurate data on other data elements is more difficult, and research is needed to determine how states can better collect these data. Examples include (1) the number of substantiated child victims receiving or not receiving services; (2) the number of children removed from their home, organized by disposition of their cases; (3) the number of families receiving “preventative services”; (4) child protective services response times, from initial investigation to provision of services; (5) the number of children reunited with their family after foster placement; and (6) cases in which a family received “family preservation services,” but within 5 years was the subject of further reports of abuse or neglect or a child fatality.
Several additional data elements required by CAPTA are even more difficult to collect. They include data on (1) the number of children provided a court-appointed advocate in their abuse and neglect cases, and those advocates’ average number of out-of-court contacts with their child clients; (2) the number of children under the care of the child welfare system who were transferred into the custody of the juvenile justice system (what are called “crossover youth”); (3) the number of children referred to child protective services for prenatal drug or alcohol exposure; and (4) the number of children eligible for referral to the Part C IDEA program, as well as the number actually referred. Again, a study of best practices for accurately collecting these data would be helpful to the states.
Other Components of CAPTA Needing Policy Implementation Research
Children’s Justice Act CAPTA includes two additional state grant programs. The first is a program funded through the U.S. Department of Justice but implemented by the Children’s Bureau. Known as the Children’s Justice Act, its formal name is Grants to States for Programs Relating to Investigation and Prosecution of Child Abuse and Neglect Cases. As with the CAPTA State Grants and the State Prevention Grants (in Title II of CAPTA, discussed below), all states have been deemed eligible for, and receive, this funding. Although the legislation requires a comprehensive evaluation of the state’s systems related to child maltreatment, there has been insufficient investment in examining how the goals of this part of CAPTA have or have not been adequately achieved.
CAPTA Title II Prevention Grants to states Title II of CAPTA provides grants to states in amounts greater than those provided under the Title I
State Grant Program. Called Community-Based Grants for the Prevention of Child Abuse or Neglect, the purpose of this funding is “to support community-based efforts to develop, operate, expand, enhance, and coordinate initiatives, programs, and activities to prevent child abuse and neglect and to support the coordination of resources and activities, to better strengthen and support families to reduce the likelihood of child abuse and neglect” and “to foster an understanding, appreciation, and knowledge of diverse populations in order to be effective in preventing and treating child abuse and neglect.”
In contrast with the Title I State Grants, which lack an evaluation requirement, Title II requires that states “describe the results of evaluation, or the outcomes of monitoring, conducted under the State program to demonstrate the effectiveness of activities conducted under this title in meeting the purposes of the program.” Although descriptive summaries of how some states have used these funds are available (Children’s Bureau, 2013; Summers et al., 2011), the committee is unaware of any comprehensive examination/synthesis of these mandated evaluations or of any overall research on how Title II–funded programs have directly impacted the prevention of child abuse and neglect. Nor is the committee aware of any studies of how a focus on “diverse populations” may have led to improvements in preventing child abuse and neglect among different racial and ethnic groups.
CAPTA discretionary funding for demonstration projects Although it is very limited, each year CAPTA discretionary funding is used to support individual grants for state and local child abuse and neglect-related projects. CAPTA requires these discretionary grant projects “to be evaluated for their effectiveness.” Funded projects must provide for such evaluations either as a stated percentage of their demonstration grant funding or as a separate grant or contract entered into by HHS for the purpose of evaluating that project or a group of projects. Because Congress has listed discrete areas for demonstration funding (and will likely add others in the future), it would be helpful to know more about whether the policy reforms suggested by prior congressionally enumerated grant areas have in fact been achieved. Therefore, it would again be helpful to the field if support were provided for a study examining these evaluations and their findings overall.
CAPTA research priorities set by Congress Congress has mandated that the Children’s Bureau, “in consultation with other Federal agencies and recognized experts in the field, carry out a continuing interdisciplinary program of research, including longitudinal research, that is designed to provide information needed to better protect children from child abuse or
neglect and to improve the well-being of victims of child abuse or neglect.”4 At least a portion of such research is to be field initiated. CAPTA lists the areas in which such child abuse and neglect research may be funded. This list of research areas raises two concerns. First, the extremely limited funding appropriated for research under CAPTA means that few of these areas will be topics of research grants. Second, there are many important areas on this list that have never been the subject of any CAPTA (or other federal) research grant funding, and these issues also need attention.
Need for Enhanced Research Funding
CAPTA has since 1974 been the federal law that most directly relates to, and provides very modest funding for, improved identification and intervention in cases of child abuse and neglect. However, CAPTA establishes expectations for actions by states’ child protection systems that are too often largely unmet. At each periodic reauthorization of CAPTA, members of Congress have added provisions to the law requiring (through additions to State Grant eligibility requirements) that state and county child protective services systems do more, but always without providing any increased federal resources. The committee hopes the above discussion will serve as a roadmap for the administration and Congress to enhance the financial support provided under CAPTA. This enhanced funding is needed to expand the national child abuse and neglect research portfolio and provide the added knowledge required to achieve a significantly improved child protection system. (See also the detailed discussion of research funding in Chapter 7.)
The Victims of Child Abuse Act5
In addition to CAPTA, several other federal laws contain the words “child abuse” in their title or focus primarily on the immediate response to the identification of abused and neglected children. Originally enacted in 1990, for example, the Victims of Child Abuse Act (VCAA) has for more than two decades provided support for the work of children’s advocacy centers (CACs) and enhancement of the prosecution of child abuse cases (through the National Center for the Prosecution of Child Abuse, a program of the National District Attorneys Association) (Subchapter I). The VCAA also has been a vehicle for funding of Court-Appointed Special Advocate (CASA) programs (Subchapter II) and training and technical assistance to judges who hear civil child protection (dependency) cases (through grants
4CAPTA Sec. 104, 42 U.S.C. 5105.
542 U.S. Code Section 13001, et seq.
to the National Council of Juvenile and Family Court Judges) (Subchapter III). Each year since the VCAA became law, millions of dollars have been appropriated to support these activities. Although there have been evaluations of the effectiveness of CAC and CASA programs, as well as of the work of “Model Courts” supported with Subchapter III funding, there is a need for additional, independent scientific studies of the impact of these programs on the responses to child maltreatment. The VCAA has continued to be an essential funding mechanism for improvements in government reactions to reported and substantiated child maltreatment, but it is important now to allocate funds so that Congress can be better informed about the effectiveness of the reforms this law has long supported, which can best be accomplished through rigorous research.
Subchapter IV of the VCAA contains a federal requirement for reporting of child abuse (but not “neglect”) that occurs on “Federal land or in a federally operated (or contracted) facility.” This makes this provision, in essence, the federal lands equivalent of the state mandatory reporting law requirement of CAPTA. The VCAA language about reporting (i.e., what to report, when to report, who must report, cross-reporting obligations, immunity for reporters, penalties for failure to report, and training requirements for prospective reporters) is quite different from that in CAPTA. To the committee’s knowledge, no research has been conducted on the operation or impact of this federal lands child abuse reporting law, including how the differences between its provisions and those of CAPTA impact child abuse reporting, investigation, and intervention.
The Child Victims’ and Child Witnesses’ Rights Law6
Also enacted in 1990, the Child Victims’ and Child Witnesses’ Rights law provides a framework for how child abuse victims who are involved in “Federal court prosecutions of offenders” are protected throughout the judicial process. The purpose of this legislation is to minimize the trauma experienced by child abuse victims as a result of their involvement in the federal criminal court system. Once again, the definitions in this law differ from the abuse definitions in CAPTA. The law authorizes federal judges to take a variety of measures to aid child victims or witnesses. These include, for example, (1) using alternatives to live in-court testimony of child victims, (2) setting limits on challenges to the competency of child witnesses, (3) providing privacy protections for child victims/witnesses, (4) describing special requirements related to child victim impact statements, (5) use of multidisciplinary child abuse teams, (6) appointment of a guardian ad litem for a child victim or witness, (7) allowing testifying children to have an
618 U.S. Code Section 3509.
adult support person with them, and (8) establishing a procedure to ensure a speedy trial of child victim cases. Although this law was intended to reduce system-related child trauma, the committee is unaware of any studies of the implementation of its provisions.
Laws on Reporting and Responding to Child Abuse in Indian Country7
The Indian Child Protection and Family Violence Prevention Act of 1990 was enacted to address the perceived lack of reporting of child abuse and neglect by Indian nations. It established mandatory reporting of child abuse and neglect on Indian lands.8 However, no regulations have ever been adopted under this act, and no funding is currently being provided for its implementation. Again, moreover, the definitions of child abuse in this act and in CAPTA differ. Unlike CAPTA, this act includes a prescribed criminal penalty for failing to report abuse and for inhibiting or preventing the making of a report (the latter is a provision not found in any of the other federal laws described). Congress also established a special procedure for dealing with these reports, required a unique database for the reports, provided for grants to improve treatment of Native American child abuse victims, and otherwise supported improvements in investigation and other interventions in these child abuse cases.
The committee is unaware of any research on the incidence of or responses to child abuse on Indian reservations. The committee urges HHS and the Department of the Interior, Bureau of Indian Affairs, to support data collection and studies that can inform Congress on how these 1990 laws have or have not reduced child abuse in Indian country or improved the reporting of and intervention in these child abuse cases.
In 1978, Congress enacted the Indian Child Welfare Act (see Chapter 5).9 The purpose of this legislation was to “promote cultural and familial preservation for Indian children,” not only in cases related to child welfare system intervention but also in other custody and adoption cases. However, only “sparse empirical research has examined the implementation of and outcomes associated with this landmark legislation” (Cross, 2006, 2008; Limb et al., 2004, p. 1279), and thus this is an area also in need of federal research attention.
Finding: CAPTA provides the legal foundation for state and national child abuse and neglect prevention and treatment activities, yet many impacts of CAPTA have not been evaluated through rigorous re-
718 U.S. Code Section 1169 and 25 U.S. Code Section 3201 et seq.
8P.L. 101-630, 18 U.S.C. 1169a.
925 U.S.C. § 1902.
search. Topics lacking research include the effects on child protection of (1) state and county responses to first-time reports involving older teens, (2) state definitions of perpetrators, (3) the inclusion of language limiting reporting to recent and serious acts, (4) the inclusion of broadened language on reportable sex crimes, (5) various expansions of medical neglect definitions, (6) state responses to State Grant program requirements, (7) CAPTA-promoted best practices, (8) citizen review panel recommendations, (9) programs funded by Children’s Justice Act grants, (10) programs funded by CAPTA Title II Prevention Grants, and (11) CAPTA discretionary grant evaluations.
Finding: To identify best practices to support state and county implementation of CAPTA requirements, research is needed on (1) responses to first-time reports involving older teens, (2) implementation of State Grant program requirements, and (3) data collection for difficult data elements that states are required to report to the Children’s Bureau.
Finding: CAPTA includes research priorities identified by Congress. Nevertheless, the funding appropriated for research under the act has been too limited to address more than a few of the research priorities identified, and many key priorities have never received CAPTA or other federal research grant funding.
Finding: The VCAA funds CACs, the National Center for the Prosecution of Child Abuse, and CASA programs and sets requirements for the reporting of child abuse on federal lands. While research has examined the effectiveness of CACs and CASA programs, no research has been conducted on the operation or impact of the federal lands child abuse reporting law.
Finding: The Child Victims’ and Child Witnesses’ Rights law was designed to reduce the trauma experienced by child abuse and neglect victims as a result of their involvement in the federal criminal court system, but no studies have examined the effects of implementing the law’s provisions.
Finding: The Indian Child Protection and Family Violence Prevention Act established mandatory reporting of child abuse and neglect on Indian lands, but no research has examined the incidence of or responses to child abuse and neglect on Indian lands.
Finding: The Indian Child Welfare Act established tribal authority over decisions to place American Indian children in out-of-home care,
but little empirical research has examined how the act has been implemented and what effect it has had on the experiences of American Indian children in the child welfare system.
This section reviews key state laws and policies addressing child abuse and neglect that have been enacted in recent years and suggests areas in which future research is needed.
Laws Establishing Definitions of Child Abuse and Neglect,
Laws Defining Drug Use as a Form of Child Abuse and Neglect,
and Laws Pertaining to Witnessing Domestic Violence
As previously discussed in this chapter, CAPTA establishes a minimum threshold for the definition of child abuse and neglect beyond which states are free to develop their own variations. These state definitions, established by state legislative and child protective departmental authority, consistently include definitions of physical abuse, sexual abuse, neglect, and emotional abuse (CWIG, 2011b). At the same time, these definitions vary, and some states specify additional types of abuse and neglect. For example, states consistently define physical abuse to include physical injury, but many (38) (CWIG, 2011b) also include situations in which the child is threatened with or is at substantial risk of harm. Failure to provide and supervisory neglect generally are included in neglect definitions, but some states also specify educational neglect (24 states) and medical neglect (7) (CWIG, 2011b).
Variation is seen as well in state definitions of child abuse and neglect-related “near fatalities.” Since data on these events are not captured in the CAPTA-created national surveillance system—the National Data Archive on Child Abuse and Neglect (NDACAN)—no guidance on their definition is provided at the federal level. According to a 2011 Government Accountability Office (GAO) report that presents results of a survey of child welfare administrators in the 50 states, the District of Columbia, and Puerto Rico, 32 states have a state law or policy that defines a near fatality; however, these definitions may or may not be congruent (GAO, 2011). Partly as a result of confidentiality restrictions, coordination among jurisdictions and state agencies is limited. This limited coordination presents further challenges for reporting data on both abuse/neglect-related fatalities and near fatalities as part of national surveillance systems (GAO, 2011). Inadequate support has been provided for research that would help identify best practices in overcoming barriers to uniform identification and data collection for cases of the most severe forms of child abuse and neglect.
Exacerbating confusion over the legal definition of child abuse and
neglect are differences in the guidelines or standards for defining child abuse and neglect among and within disciplines, agencies, and professional groups. For example, standards for what is considered a case of child abuse and neglect may vary among the courts, child protective services, and health care providers within a state, as well as among individuals within those groups (CWIG, 2011b). New research is critically needed to better understand how these differing standards and interpretations affect the protection of children from abuse and neglect.
Nearly all states have laws within their child protection statutes that address the issue of substance use by parents. CAPTA funding is predicated on having procedures in place for notification of child protective services when babies are born exposed to substances and on having plans in place for their safe care. States vary as to whether these procedures are formally included in their definition of child abuse and neglect or separate statutes on such referrals and care are in place. For children in the home who are exposed to drug activity of their parents, many states have expanded their civil definition of child abuse and neglect to include this situation, others address it in their criminal statutes, and still others have enacted enhanced penalties for drug crimes conducted in the presence of children. Again, this lack of uniformity in legal approaches is exacerbated by the lack of research on what approaches are best suited to addressing the problem.
Finally, although the definition of domestic violence also varies across states, many state laws consider cases in which a child witnesses violence among family members to be a form of child abuse and neglect. Currently, 23 states have laws designed to protect children from exposure to domestic violence in the home, although variation exists among these laws (CWIG, 2012a). Several states have specific definitions of witnessing such violence, including being physically present or in the vicinity or being able to see or hear the act of violence. Several state laws are explicit about the child being related to the adult victim or perpetrator; other state laws apply to any child. Legal consequences for violating these state laws include criminal penalties resulting in jail time, fines, or both; mandated counseling; removal of visitation privileges; or mandatory supervised visits of noncustodial parents. In Georgia, for example, committing an act of violence in the presence of a child is termed third-degree child cruelty and is considered a misdemeanor (CWIG, 2012a). Here also, the lack of research on the impact of these legal approaches results in policy making in a highly controversial area without evidence-based support.
Even though state-level data collection has expanded markedly in the past three decades, no evaluations have examined the relationship between
instituting laws defining child abuse and neglect and demonstrated improvements in child safety. Differences in state laws defining abuse and neglect have been summarized (e.g., CWIG, 2011b), but no evaluations have explored the relationships between differing abuse and neglect definitions and their impact on child safety. Further, no evaluations have focused on improvements in child safety or well-being associated with the inclusion of educational neglect, medical neglect, parental drug abuse, or exposure to intimate partner violence in abuse and neglect definitions.
Maintaining a safe environment for children is one of the least clear-cut elements of defining or legislating child neglect. Charges that a parent has failed to protect a child from danger (i.e., violence in the home) “exemplify the lack of clarity in this concept and related legal practices. Protection of the child from … harm in the home might seem … to be one of the most basic parental responsibilities … however, there is no consensus on what constitutes a threshold of dangerousness in children’s exposure” (Kantor and Little, 2003, p. 340). The federal court case of Nicholson v. Williams, U.S. Court of Appeals (2nd Cir. 2, 171), served as a caution to states to legislate carefully in this area. Perhaps for this reason, many states do not address domestic violence issues within their child protection laws.
Several studies have been conducted on legislative and policy shifts related to identifying children who witness domestic violence. A 2008 study of the San Francisco Police Department assessed the effectiveness of a new policy requiring officers to complete supplemental documentation for any incident or crime involving domestic violence, with the goal of identifying children who may have been exposed. Findings suggest the policy shift had a clear effect on officers’ documentation of domestic violence-related incidents, resulting in improved identification of children exposed to violence in the home (Shields, 2008). Although Shields looked only at the experiences of one locality, those experiences may inform other localities on policy updates aimed at increasing rates of identification of children exposed to domestic violence.
A 2006 analysis of the Minnesota legislature’s 1999 decision to amend the definition of child neglect to include exposure to domestic violence revealed that changes in legal definitions are not always the best solution for children and families experiencing violence (Edleson et al., 2006). The law was repealed during the next legislative session because of the short-sightedness of legislators who believed a “modest” language change would ensure that child welfare agencies reached children being exposed to violence in their homes; social service agencies estimated the changes would cost the state millions of dollars, for which no funds were appropriated. The language also implicated domestic violence victims as perpetrators of child abuse and neglect. Kantor and Little (2003) suggest that the problem with Minnesota’s amended definition (and others like it) was ambiguity.
For example, were children considered victims if they heard the violence occurring but did not see it?
No rigorous studies are available with which to understand the impact of varying child abuse and neglect definitions, and in particular, the inclusion of medical neglect, substance abuse, and domestic violence, on child safety and well-being. Although data are not available with which to compare abuse and neglect rates before and after specific child abuse and neglect laws were established, the more recent passage of laws identifying substance abuse and domestic violence as child abuse and neglect related could be explored. Studies could also examine underlying mechanisms thought to explain the impact of these phenomena on untoward outcomes. Such research could intervene to reduce the elements of that risk to see whether doing so improved child and family outcomes.
For example, studies could be conducted in states that impose enhanced criminal penalties for perpetrators who commit domestic violence in the presence of a child to determine the effect, if any, of those laws and policies on deterrence and whether changes occurred in the number of victims seeking help. Cross and colleagues (2012, p. 13) recommend further research on the effects of differential response on exposure to domestic violence: “Differential response [DR] holds promise for responding to EDV [exposure to domestic violence], but the methods through which DR addresses EDV need to be articulated, and the prevalence of EDV in DR cases and the effects of DR on EDV need to be studied.”
Laws on Mandatory Reporting
Mandatory reporting of child abuse and neglect has its origins in the United States, where model statutes for laws designed to introduce this process were first drafted in the early 1960s (Kalichman, 1999; Mathews and Kenny, 2008). Indeed, all states either designate specific professions whose members are mandated by law to report child abuse and neglect or have a universal mandate requiring all citizens to report child abuse and neglect. Individuals designated as mandatory reporters vary across states, and include but are not necessarily limited to social workers, teachers and other school personnel, physicians and other health care workers, mental health professionals, child care providers, medical examiners, and law enforcement personnel (CWIG, 2012b). Other professionals specified as mandated reporters in selected states include clergy, court-appointed special advocates (CASAs), animal control officers, domestic violence workers,
substance abuse counselors, video and film processors, and most recently sports coaches and other adults in youth athletic programs.
States impose penalties on mandatory reporters who fail to report suspected child abuse or neglect as required by law (CWIG, 2012c). These penalties range from misdemeanors in the majority of states to felonies for more serious cases or cases with multiple violations in other states. To prevent malicious or intentionally false reporting of cases, many states also impose penalties against any person who files a report known to be false. These penalties range from a fine, to a misdemeanor, to a felony for multiple cases, to jail time, and may include the potential for civil liability for any damages resulting from the false report.
During 2012, 107 bills were introduced in 30 states and the District of Columbia on the topic of reporting child abuse and neglect. Several of these bills identified individuals who should be included as mandatory reporters, and many specified enhanced penalties for failure to report (NCSL, 2012).
Other components of the mandatory reporting process that vary across states include (1) what types of abuse or neglect are required to be reported (including emerging definitions such as exposure to domestic violence or to drug activity, discussed above), (2) standards for making a report (such as the amount of alleged harm required for a report to be mandated or whether the reporting duty includes risk of future abuse, as well as reports of past abuse), (3) specification of when a communication is privileged or inapplicable to reporting situations, and (4) anonymity or confidentiality of reporters and the reporting documents. In 2012, pursuant to a mandate in the 2010 CAPTA reauthorization, HHS began studying the issue of liability of those who assist child protective services in their investigations or otherwise become involved in the child protection process after an initial report is made.
As a consequence of a much-publicized case involving children who had been sexually abused by a staff member of Pennsylvania State University, legislative interest has arisen across the country in broadening child abuse and neglect reporting laws to make all adults mandated reporters. The State Policy Advocacy and Reform Center (McElroy, 2012) conducted a comparative analysis of current state statutes to determine whether states with universal mandated reporting have higher reporting and/or substantiation rates. The analysis found that universal mandated reporting laws did not appear to be correlated with rates of calls coming into states’ hotlines. It did find that rates of substantiation were higher in states with universal mandated reporting laws. However, whether the increased rates were a function of more professionals reporting or increased reporting from the
general public was unclear. All other indicators (i.e., number of victims, rates of child abuse and neglect, rates by type) were not significantly different between reporting groups.
Several studies have indicated that professionals with mandatory reporting requirements have varying levels of knowledge and information regarding child abuse and neglect reporting (Alter et al., 2012; Alvarez et al., 2004; Davidov et al., 2012; Kenny, 2002; Khan et al., 2005; et al., 2012; Sedlak et al., 2010). This issue was recently studied with regard to the reporting of children exposed to domestic violence. In one study, nurse home visitors had uneven understanding of whether they were required to report child abuse or neglect if a child was present when intimate partner violence occurred (Davidov et al., 2012). Shields (2008) observed an increase in police documentation of children exposed to domestic violence in San Francisco after the implementation of a new policy and supplemental forms required for completion.
In a survey of physicians who had completed a course on child abuse and neglect as a prerequisite to licensure in New York State, 84 percent of respondents knew the signs of child abuse and neglect (Khan et al., 2005). Physicians from different practice specialties had significantly different understanding of the procedure for reporting suspected abuse and neglect. Pediatricians, emergency physicians, and family practitioners had more knowledge of this process than surgeons and internists (Khan et al., 2005).
In Minnesota, state law requires child protective services agencies to inform mandated reporters periodically about definitions and rules and any additional definitions or criteria approved by the county board (Alter et al., 2012). The state’s Office of the Legislative Auditor found that the agencies used a variety of approaches to update and inform mandatory reporters; the majority (79 percent) of mandated reporters appraised themselves as adequately informed about their responsibility to make a report, and nearly all of those mandated reporters knew whom to contact to make a report. Yet 27 percent of pediatric health professionals and 5 percent of school personnel surveyed indicated that they would make a report of suspected abuse and neglect to a designated individual in their workplace, whereas the law requires a direct report to child protective services or law enforcement (Alter et al., 2012).
Alvarez and colleagues (2004) estimate that 40 percent of professionals who are mandated reporters have failed to report child abuse or neglect at some time. They note a number of barriers to reporting abuse and neglect, including a lack of knowledge about its signs and symptoms and the ability to identify them correctly, lack of knowledge of reporting procedures, concern about negative consequences to the child or family, fear of retaliation, or a belief that child protective services will be unable to help.
In the survey of mandatory reporters in Minnesota, as many as 20
percent of mandated reporters considered not filing a report when they suspected abuse and neglect; the two most common reasons they cited were (1) they did not think their suspicions were strong enough to justify making a report, and (2) previous reports of suspected abuse and neglect had been ruled out by child protective services (Alter et al., 2012). The authors note an inherent conflict between the “reporting” mentality and the “screening” mentality that can lead to frustration on the part of reporters when their report is not screened in because of the more restrictive criteria for that process compared with reporting. While most of the mandated reporters asserted that the screening guidelines were “about right,” a sizable minority said that the guidelines were too strict. The authors note that providing information on specific screening requirements needs to be balanced with the risk that individuals will “prescreen” prior to reporting or will tailor reports to meet the specific screening criteria (Alter et al., 2012).
The most recent National Incidence Study (NIS-4) provides evidence that professionals may not recognize abuse and neglect in some cases, and in other cases recognize signs of abuse and neglect but do not report it (Sedlak et al., 2010). Professionals in schools were less likely to report suspected abuse and neglect than other professionals (Sedlak et al., 2010). Sentinels who had received training on reporting laws and procedures were more likely to have reported suspected child abuse and neglect than those who had not received such training (Sedlak et al., 2010), suggesting that additional training of the general mandated reporting workforce would increase reporting.
McElroy (2012) suggests the need for research comparing the rates of child abuse and neglect reporting and substantiation in states across several years, focusing on variability at the state level. This research could include a careful exploration of such variables as the definition of a mandatory reporter, whether the state is a “universal” reporting state, the definitions of child abuse and neglect, poverty rates, and the presence of a differential response system. Studies of the efficacy of training programs for mandated reporters, including how different training models have more or less impact with different audiences, could provide guidance to policy makers.
Legal Standards for Substantiating Child Abuse and Neglect
Once cases of child abuse or neglect have been reported, they must be investigated and verified. All states and territories have specific requirements for the initial response by agencies receiving reports of child abuse and neglect. In most states, a screening process is used to determine whether
a report will be accepted; this process includes a review of the report in the context of the state’s definitions of child abuse and neglect. Every state mandates that child protective services begin an investigation within a timely manner, usually within 72 hours, and in even less time when there is reasonable cause to believe that the child is in imminent danger (CWIG, 2009b). Although the methods used to determine which reports require immediate responses vary among states, almost every state uses a type of safety assessment. States most typically have a two- or three-tiered model for substantiation, and the standard of evidence varies from state to state (CWIG, 2009a; English et al., 2002).
The committee encountered no research on the impact on child abuse and neglect intervention of having different evidence standards for case substantiation, but a limited amount of research has examined certain aspects of substantiation across states. The Congressional Research Service reviewed all state evidence required for child abuse and neglect substantiation and ranked states according to least strict, more strict, and strictest standards. The level of evidence required was found to be correlated with reported rates of child abuse and neglect victims. For example, in fiscal year (FY) 2007, the 20 states with the least strict evidence required for substantiation reported 13.3 victims per 1,000 children, the 28 states requiring more strict evidence reported 9.4 victims per 1,000 children, and the 2 states with the strictest evidence requirements reported 1.7 cases per 1,000 children (GAO, 2011).
In Washington State, a three-tiered model for substantiation includes the categories of founded, inconclusive, and unfounded (English et al., 2002). The Washington Risk Model, a comprehensive decision-making tool established in 1987, was found by researchers not only to provide the risk information required in the central electronic data system but also to serve as an organizational framework for child protective services workers (English et al., 2002). Interviews with the workers revealed that multiple factors enter into the decision on substantiation, with determinations being based on the risk assessment as well as factors in the workers’ environment. Chronicity of abuse and neglect was found to be a key factor in the substantiation decision, with 84 percent of case workers stating that chronicity was of moderate or high importance in the determination. Workers used the Washington Risk Model to evaluate the severity of the case, articulate opinions to the court, clarify borderline situations, and support decisions (English et al., 2002).
Some states have developed specialized diagnostic centers to improve determinations of child abuse and neglect. Socolar and colleagues (2001)
conducted a case study of programs used for medical diagnosis of child abuse and neglect in five states.10 Three of the states (Florida, North Carolina, and Oklahoma) had operational programs, and two (Louisiana and Kansas) were in the process of implementing such programs. These centers were established in response to concerns about the quality, availability, and/or consistency of assessments of child abuse and neglect. All of the statewide programs had made training a priority, including for physicians, nurses, social workers, and any interested party. The authors found that state funding was critical to the support of programs, particularly statewide programs, but that it was important to ensure that the funding was diversified. They also noted that beyond the funding or the quality of the individuals within the programs, the success of such centers can depend as well on the establishment of alliances, adequate reimbursement, and recognition of the political climate in which the center operates (Socolar et al., 2001).
The literature cited in the previous section only hints at the complexity behind substantiation decisions, from issues of chronicity and workers’ concerns about child safety, to the availability of quality medical diagnoses, to sufficient training for the workforce. These issues cannot be explored in a vacuum, however, but need to be analyzed with regard to how definitions of abuse and neglect vary across states, the different models and requirements for screening reports, and the availability of services for families identified as being at risk. The issue of substantiation needs to be explored in conjunction with analyses of differential response.
Further work on substantiation also needs to be done in the context provided by the many studies showing that children involved in both substantiated and unsubstantiated abuse or neglected cases have very similar case characteristics and case outcomes (Hussey et al., 2005; Kohl et al., 2009). These findings show, quite conclusively, that this labeling decision does not effectively differentiate those children with a high likelihood of reabuse or those with a high likelihood of developmental delays from children whose reports of abuse or neglect are not substantiated.
Criminal Sentencing Laws
Criminal penalties for child physical and sexual abuse vary considerably across states, and they are presumed to be dependent on the nature
10Medical diagnosis refers to “medical assessment of suspected child abuse or neglect to arrive at a diagnosis, and systems for medical diagnosis to refer to programs that are established to foster the process of medical diagnosis” (Socolar et al., 2001, p. 443).
and severity of the abuse. Most states require convicted child sex offenders to be listed on a registry, in some states for their entire lives. Other possible penalties and/or consequences, in civil child protective court proceedings, may include termination or limitation of parental rights. An examination of the charges and penalties for one form of abuse, abusive head trauma, found weak relationships between fatality or severity and the type of felony charged. Race of the perpetrator was a stronger predictor of more serious charges (Keenan et al., 2008). Whether public knowledge of criminal and civil penalties actually helps prevent child abuse or neglect has not, to the committee’s knowledge, been studied.
Disclosure of Confidential Child Abuse and Neglect Records
Federal funding through CAPTA requires states to keep records of child maltreatment confidential to protect the rights of the child and the child’s parents or legal guardians. State statutes vary with respect to the persons or entities allowed access to the central registry and other child protective services agency records of abuse and neglect. Those typically allowed access include physicians; researchers; police personnel; judges and other court personnel; the person who is the subject of a report (who does not, however, have access to the identity of the reporter); a person who was an alleged child victim; and the parent, guardian, or guardian ad litem of an alleged victim who is a minor. In some states, feedback, or summaries of investigations and case outcomes, is provided to persons or agencies making the initial report, and such information may also be provided to prospective foster or adoptive parents or to other public agencies providing services to the child and family.
For most cases, public disclosure is not allowed. Some states, however, pursuant to an exception in CAPTA, allow public reporting of child protective services case information when child abuse and neglect-related fatalities or near fatalities are involved—for example, when a child in state or county custody dies, when clarification or correction of information released through other sources is needed, or when the perpetrator of abuse has been arrested or criminally charged. Several states allow access to registry or departmental records of abuse and neglect for those reviewing employment applications for the provision of child care or youth care or checking on the suitability of prospective foster or adoptive parents. The latter case falls under the federal Adam Walsh Child Protection and Safety Act of 2006,11 which requires states to “check any child abuse and neglect registry maintained by the state for information on any prospective foster or adoptive parent.” It is important to note that the committee is unaware
11P.L. 109-248, 42 U.S.C. 16990.
of any research establishing that any particular state statutory scheme for release of records in such cases is more likely to protect children than any other.
Safe Haven (Baby Moses) Laws
All U.S. states and Washington, DC, have enacted legislation to address infant abandonment and infanticide, in some respects the cruelest form of child abuse and neglect. In exchange for surrendering a baby at a safe location, safe haven laws normally allow one parent, or a representative of that parent, to maintain anonymity and to be protected from prosecution for abandonment or neglect. In most states, the laws apply to very young infants—72 hours old or younger (n = 15), 5 to 14 days old (n = 11), or 1 month old (n = 14)—but some states allow parents to drop infants off within 45 days, 60 days, or up to 1 year (CWIG, 2010). The legislation varies across states by (1) who may leave a baby at a safe haven, (2) what providers are considered safe havens, (3) how old an infant may be to be properly relinquished, (4) responsibilities of safe haven providers, (5) protections from liability afforded to providers, (6) protections for the parents in terms of anonymity, (7) protection of the father’s rights, (8) awareness campaigns, and (9) parental liability.
Analyses A number of commentators have written extensively about the purpose or impact of safe haven laws, referencing mainly anecdotal evidence or unofficial state data. Some have been critical, as in a white paper by the Evan B. Donaldson Adoption Institute, which suggests that safe haven laws have not been shown to be effective in minimizing unsafe infant abandonment; that the laws are limited by their inability to address the underlying causes of infant abandonment; and that the laws can interfere with aspects of child welfare policy, particularly with adoption statutes (Evan B. Donaldson Adoption Institute, 2003). Others hold a more optimistic view. In her commentary on the subject, Ayres (2009) suggests that public awareness of safe haven laws is the key to their effectiveness. Through a qualitative review of state-level policy changes in the form of case studies, she argues that increased public awareness of the laws through well-funded media campaigns has contributed to a reduction of unlawful infant abandonment.
To the committee’s knowledge, however, there have been no rigorous evaluations of the impact of save haven laws on infant abandonment or death. In fact, the tools needed to conduct an effective evaluation of these laws are not yet in place. States do not systematically collect data on infant abandonment, so it is not possible to make comparisons before and after enactment of the laws. While some notable efforts have been made to col-
lect statistics on infant abandonment using unofficial state data (see NCSL, 2003) or news reports (Pruitt, 2008), these data have been insufficient to allow an adequate assessment of the impact of safe haven laws. Further, the anonymity provisions of the laws preclude the collection of information necessary for evaluating the laws—whether women who surrender their baby at a safe haven would otherwise have abandoned their child in an unsafe place instead of pursuing a different, legally permissible course of action such as adoption. In her commentary on the topic, Oberman (2009) suggests that without information on the mothers who abandon their children, evaluating safe haven laws is nearly impossible.
Research needs Given the unavailability of certain data discussed above, the most rigorous study designs are not feasible for addressing this issue. However, time-series analyses (see, e.g., Albert, 2001) comparing rates of abandonment, death, and infanticide before and after implementation of state safe haven laws, combined with cross-state comparison of states with different age requirements, could help shed light on the issue. Factors that should be built into this design include, at a minimum, the amount of investment made in notifying the public about the availability of safe havens through signage and social media, the range of settings that are approved as safe havens, and the availability of other resources to prevent unwanted pregnancies. Other research designs that might be used to examine the impact of safe haven laws include instrumental variable approaches (see, e.g., Doyle, 2007) and regression discontinuity designs.
Child Abuse and Neglect Central Registries
Registries that maintain statewide information on individual child abuse and neglect cases remain a needed policy-related research focus. In addition, Section 633 of the Adam Walsh Child Protection and Safety Act required HHS to establish a national child abuse registry and to conduct a feasibility study regarding implementation issues. The interim report to Congress about the registry addressed the purpose of a national child abuse registry and its availability for employment and background checks. The same issues of accuracy, standard of proof, notification, appeal, expungement, availability to law enforcement or other non-child protection systems, and due process have not been carefully examined at the state level.
Representation of Children in Child Abuse and Neglect Proceedings
All states have provisions, mandated since 1974 under CAPTA, for appointing a guardian ad litem to represent the interests of a child in a case of child abuse and neglect that results in civil child protective judicial
activity. However, these provisions vary among states with respect to who is appointed, with some states appointing a lay individual, others requiring that an attorney be appointed, and others allowing volunteer CASAs to take on the role. In some states, a CASA may be appointed in addition to rather than as the guardian ad litem, while in other states, the court appoints legal counsel for the child as required by state law. There is no federally established standardized training for any of these positions, and states vary in their training requirements either through state laws, court rules, or continuing legal education obligations. While a National Quality Improvement Center on Legal Representation of Children is currently examining the impact of two different models of child representation, the committee is unaware of other rigorous comparative evaluations of different approaches taken across the country.
Child Fatalities Due to Abuse and Neglect
A number of developments have led to recent bipartisan legislation—the Protect Our Kids Act—designed to address child fatalities due to abuse and neglect. These developments include the rising number of known child abuse and neglect-related deaths even as rates of child abuse fall; a 2011 GAO report stating that such fatalities are undercounted and that states are highly inconsistent in the ways they track, count, and examine these fatalities (GAO, 2011); findings of research on children’s hospital admissions (Berger et al., 2011); and the almost daily media reports of the death of children due to abuse and neglect. The Protect Our Kids Act, signed by the President on January 14, 2013, created a national commission to examine child abuse and neglect-related fatalities and to recommend actions that should be taken to evaluate current programs and prevention efforts addressing the problem, as well as a comprehensive national strategy for reducing and preventing child abuse and neglect-related fatalities nationwide. The Children’s Bureau responded to concerns about rising rates of child abuse and neglect-related deaths by developing a contract for information gathering with Walter R. McDonald & Associates, as well as convening a 2012 meeting of child welfare directors and child fatality reviewers to examine their processes.
The literature in this area includes only three studies, just one of which had a quasiexperimental design. Palusci and colleagues (2010) found that in Michigan, policy changes made after an initial phase of reviews of child fatalities due to abuse and neglect appeared to have positive impacts. Decreases were seen in fatalities among children familiar to child protective services, and specific policy changes appeared to result in improved professional practice. During this same time, however, child fatalities due to unaddressed mental health needs increased, as did inaccuracies in medical
examiner findings—both of which are systems-level problems that cannot be addressed solely within the child welfare system. While they hesitate to assign causality, Palusci and colleagues (2010) suggest that it is important to consider whether changes proposed by the review panel could reasonably be expected to affect child abuse and neglect-related fatalities. A number of changes in state law, policy, and procedures during this time impacted child protective services procedures, including training, supervision, and peer review. The authors theorize that the review panel’s recommendations may have had an impact because of the familiarity of the panel members with the child welfare system and the formal process that exists for moving from reviews to recommendations to state action.
During its first 5 years of operation, the Arizona Child Fatality Review Program (ACFRP) identified 29 percent of deaths of children under age 18 as preventable, and 56 percent of deaths of children over age 9 (Rimsza et al., 2002). The ACFRP found that 61 percent of the child abuse-related deaths were preventable. Child protective services in Arizona were involved in 21 percent of the child abuse cases prior to the fatal injury or neglect; in two cases, out-of-state child protective services agencies were involved but did not report findings to Arizona. Additionally, the ACFRP identified two instances in which medical personnel were believed to have failed to recognize suspicious injuries. The ACFRP identified five deaths it believed were ruled incorrectly by the medical examiner as natural or accidental that should have been classified as due to child abuse or neglect (Rimsza et al., 2002).
Douglas and McCarthy (2011) report that the focus of child fatality review teams varies widely among states, although the focus of most teams includes fatalities due to child abuse and neglect. Additionally, there is little uniformity with regard to content areas in the legislation establishing such teams. The most frequent content areas included in state laws are the composition of the team (93.4 percent), confidentiality concerns (86.9 percent), review outcomes (86.9 percent), the team’s purpose (95.6 percent), and the team’s selection of cases (58.7 percent) (Douglas and McCarthy, 2011).
In most states (89 percent), the stated purpose of the team is to prevent future deaths, but fewer than two-thirds of states require reports from the team to the executive branch of government or the child welfare system, only half of states require public education as a result of the team’s reviews and recommendations, and even fewer states require a public report from the team (although many print them) (Douglas and McCarthy, 2011). States whose establishing legislation for the teams was passed early in the development of such teams were more likely to have an investigative focus for the team. Higher crime rates marginally but significantly predicted that a state’s team would focus on prevention (Douglas and McCarthy, 2011).
More rigorous research is required to assess the effectiveness of such
teams in preventing deaths due to child abuse and neglect. Given the varying scope of the teams in each state, this research would need to account for several potentially confounding variables, including how the states define deaths due to child abuse and neglect.
Research also is needed to better understand what are referred to as “near fatalities” (i.e., children hospitalized for abuse and neglect who are labeled as in serious or critical condition), as well as to look across data systems, as in Putnam-Hornstein’s (2011) examination of abuse and neglect and birth and death records in California. The latter study provided insight in the area of risk factors, noting that previous reports of physical abuse were correlated with child abuse and neglect-related deaths.
Finding: State laws differ significantly in defining child abuse and neglect. Very little research has examined the impacts of state definitions of child abuse and neglect on child safety, including the effects of instituting state definitions; changing state definitions to include educational neglect, medical neglect, parental substance abuse, or exposure to intimate partner violence; and differences among state definitions.
Finding: Differences in state definitions of child abuse and neglect-related “near fatalities,” the exclusion of data on fatalities and near fatalities from NDACAN, and limited coordination among jurisdictions and state agencies pose challenges to tracking and analyzing the most severe cases of child abuse and neglect. Insufficient research has been conducted to identify best practices for overcoming these barriers.
Finding: The guidelines and standards for defining child abuse and neglect vary significantly within states among the various disciplines, agencies, and professional groups involved in preventing, identifying, and responding to the problem. No research addresses the impact of these variations on the safety of children.
Finding: Research on state mandatory reporting laws reveals higher rates of substantiation in states with universal mandated reporting laws. Research on professional mandated reporters indicates that many do not report suspected cases of child abuse and neglect because of multiple barriers. Some evidence indicates that additional training of the general mandated reporting workforce could increase reporting.
Finding: While no research evaluates the impact of states’ different evidence standards for case substantiation on intervention outcomes, states with more strict evidence requirements for substantiation were
found to have lower reported rates of child abuse and neglect than states with less strict evidence requirements.
Finding: Limited research reveals that complex substantiation decisions are tied to the chronicity of abuse, workers’ concerns about child safety, the availability of quality medical diagnoses, and workforce training. Furthermore, research conclusively finds that children involved in both substantiated and unsubstantiated abuse or neglect cases have very similar case characteristics and outcomes.
Finding: Criminal penalties for child physical and sexual abuse vary across states, but research has not examined whether public knowledge of criminal and civil penalties helps prevent child abuse and neglect. Furthermore, analysis of charges and penalties for abusive head trauma has found race to be a stronger predictor of more serious charges than fatality or severity.
Finding: Beyond the CAPTA requirement that states preserve the confidentiality of child abuse and neglect records to protect the rights of the child and the child’s parents or legal guardians, state statutes vary with respect to the persons or entities allowed access to central registries of child abuse and neglect and other case records. No research establishes that any state’s statutory scheme for releasing records leads to better protection of children.
Finding: No rigorous evaluations have examined the impact of safe haven laws on infant abandonment or death. Such evaluations are hampered by the lack of systematic collection of state-level data on infant abandonment and by anonymity provisions in the law that make it impossible to interview women placing their children in safe havens about alternative courses of action.
Finding: State CASA provisions vary significantly, but an ongoing study of two different models of child representation by the National Quality Improvement Center on Legal Representation of Children is the only known rigorous comparative evaluation of different approaches.
Finding: Recent federal action designed to address child fatalities due to abuse and neglect includes the Protect Our Kids Act, which established a national commission to examine fatalities, recommend actions for program evaluation, and develop a national strategy for prevention, and activities by the Children’s Bureau.
Finding: At the state level, the focus of child fatality review teams varies widely. One successful panel review of child fatalities was conducted in Michigan by experts familiar with the child welfare system; they suggested policy changes, which were followed by decreases in child fatalities. More rigorous research is required to assess the effectiveness of such panels in preventing deaths due to child abuse and neglect. Such research would benefit from improved definitions of near fatalities and from linking of data across systems.
The heterogeneity of state laws on child abuse and neglect offers an opportunity for a natural experiment that could help illuminate what does and does not work. The impact of policy change could be examined by studying state variations in such areas as mandated reporters, definitions of abuse and neglect, inclusion of the witnessing of intimate partner violence, and other elements included in state laws, as well as the range of penalties. As outlined in this chapter, opportunities also exist to examine variations in reporting laws, county- versus state-administered systems, differential response, mandated nursery-based preventive education in abusive head trauma, and education of mandated reporters about abuse and neglect. New research approaches should be considered, such as propensity scoring (D’Agostino, 1998) and difference-within-difference analyses (Shafrin, 2006), which can be powerful tools for examining policy-relevant questions. Explicit requirements for policy research should be part of any newly funded and developed child abuse and neglect research centers.
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