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Child Abuse and Neglect
Wayne State University Law School
Ladd, William E.

CHILD ABUSE & NEGLECT
Ladd, Fall 2008
 
The History of Child Welfare Law
MCL 712A.2(b)(1) & (2) – ADD
o    Fed gov plays a large role in this—they pay states a great deal of $ to care for & protect children
o    2 elements of juvenile law & juvenile crt:
1.       Delinquency (juvenile justice)
2.       Dependency (child welfare)
o    Dependency Crt Juris:
·         H&les child maltreatment cses
·         Dependent Chid: Child who’s been adjudicated maltreated or is under state custody
·         Child Maltreatment: gen term used to describe all forms of child abuse & neglect , includes:
§ Physical Abuse- nonaccidental physical injury as result of caretaker acts
§ Sexual Abuse- involvement of dependent, developmentally immature children & adolescents in sexual activities that they don’t’ fully comprehend & are unable to give informed consent
§ Neglect- failure of caretakers to provide for child’s fundamental need
§ Emtnal or Psychological Abuse- verbal harassment of child by disparagement, criticism, threat & ridicule
§ These all encompass juvenile dependency
·         Child Abuse & Neglect (CAPTA defo)- any recent act or failure by caretaker, which results in death, serious physical/emtnal harm, sexual abuse/exploitation, or act/failure to act which presents imminent risk of serious harm 
o    Origins of Child Maltreatment & Protection
o    Maltreatment
o    Child Protection- Pre 16th century efforts to help kids were minimal d1 by private groups or churches
o      The Kindness of Strangers (John Boswell)- status of children in mid-evil times. Many practices & procedures for ab&1d kids. Many parents would ab&on kids, they would also be rescued. In Rome, kids of freed persons were free even if found or rescued by some1 else, their rgt was absolute throughout their life to protect children & parents
§ NOW- some states have Safe Drop locations- Safe delivery of newborns statutes which protect those who leave their children to be picked up- designate locations
·         Parents can leave their children here & presumably wont be punished
·         Short circuits the welfare system—allows adoption w/out protection proceedings
·         Prof. Ladd thinks its essentially ab&onment
o    16th & 17th Century Engl&: Creation of a System of Family Law:
§ Society moved from communal living to family groups
·         These groups had relationships to church & state, basis for law leading to juvi crts
§ Period of nonintervention into families (family autonomy virtually unlmted)
§ The Dual System
·         Theory based on social class
·         Only 2 justifications for intervention:
1.       Regulation of wealth- Orderly passages of prop (upperclass/rich)
2.       Regulation of poverty (lwr class/poor)
§ Elizabethan Poor laws:  Family Law for the Poor
·         Parliament passed Statute of Artificers (1562): poor children could be involuntarily taken from their parents & apprenticed 
·         Parliament passed Poor Laws: series of statutes authorizing removal of poor kids from parents at discretion of overseer officials & “bounding out” of children to local resident as apprentice until age of maturity- gave gov assumption of authority & obligation to care for poor kids; no state funding, community parish provided relief
·          Assumption of authority & obligation to care for poor children & Apprenticeships as means of that parentage
·         Poor Laws (1601) affected 3 areas:
Labor- unmarried laborer couldn’t refuse work in his apprenticed trade, wage capped
Travel- often restricted from moving to healthier economies, parish had authority to remove poor, foreigners weren’t parish’s responsibility
Intra-Family Support- 3 generations of ascending & descending parental support
Colonial America
·         American system- even less intervention than Engl&’s- expanded autonomy of nonpoor in 2 ways:
1.     Abolition of feudal l& tenures- prop passed by testator’s choice
2.     Private Prop Matters in Secular Chancery Crt- these crts heard private prop matters (not church or crown)
·         Apprenticeship: integral part of colonial N American poor law -ideal b/c kid paid his own way, trained in skilled labor, relief costs kept down, resulted in reduced idleness & unemployment
1.     Children operated almost as slaves
·         1st recorded abuse/neglect cse (1655): John Walker: 12 yr old apprentice killed by master: beaten & neglected until death: master convicted of manslaughter
2.     Role of gov’t intervention: absence of intervention except on rare occasions
19th Century America: Rise of Parens Patriae System: kids 1st developed class identity
Parens Patriae: state as provider of protection to those unable to care for themselves – ultimate parent or parent of the country
House of Refuge Mvmt & Ex Parte Crouse:
1st major event in child welfare- 1825- 1st house of refuge opened in NYC
Kids convicted of non-serious crimes or vagrant kids- sometimes parents allowed to send unruly kids
Sever corporal punishment, required to adopt Protestant teaching of reformers
Began w/ Society For Prevention of Pauperism: believed poverty was cause of crime committed by kids –> Could take kids w/out due process- ok b/c they weren’t being incarcerated, taken for protection (to save them from becoming criminals)
But children weren’t taken away for abuse or neglect, this was only for vagrant children
Vagrant children: impoverished, w&ering w/out home or regular employment/ income
Refuge Mvmt- pre-delinquency mvmt, focusing on salvageable, neglected, poor children
                        Reformatories: entirely state financed- were to be progressive institutions w/ civic & moral training, youth would be reformed by surrogate parent
Mary Ellen (Classic cse of happens to kids in foster homes- social workers don’t visit foster homes & kids get killed): Infant Mary (Tomas’s illegitimate daughter)- women took care of her, when aid stopped, she was given to state & apprenticed ; McCormack’s were supposed to teach her about God, lying & housekeeping, & had to report (they didn’t); She had never been kissed, Mary (T’s wife) whipped, struck w/ scissor, locked in bedroom when M left, not allowed to leave room , couldn’t play w/ kids, inadequately clothes, slept of piece of rug; M found guilty- 1 yr hard labor; ME went to live in orphan asylum
                                                                Lawyer who was founder of society of prevention of cruelty to animals
                                                                Mary Ellen testified in crt & was considered a credible witness
Ex Parte Crouse- 1st case upholding Refuge System: Warrant executed by M, in kid’s interest to be incarcerated, she was beyond control. D argued it was unconstitutional, crt rejected this b/c house wasn’t a prison, reformation not punishment; Crts adopted Crouse (state’s parens patriae duty & authority permitted seemingly unlmted intervention into family autonomy- including deprivation of kid’s liberty- no due process)
Special cses of Child Abuse
 Usually parents faced criminal charges for abuse, but kids not removed
Hewellette v. George- state gives minor kids protection from parental violence & wrongdoing, all kid can dem&
Scientific Development: 1860- Recognition of CAN by Dr. Tardieu- 32 kids who died of suspected abuse
 (IL 1899) 1st juvi crt: Progressive Era mvmt- “Child Saving”- saving those less fortunately placed- Takes kids out of criminal crts
Dependency & Neglect
 child found destitute, homeless or ab&1d
no proper parental or guardianship care
habitually begs or receives alms
found living in house of ill fame or w/ any vicious or disreputable person
home, by reason of neglect, cruelty, or depravity on parent/guardian’s part is unfit for kid
under 8 found peddling or selling, singing or playing or giving any public entertainment
 Charles Lawery Brace- 1855 minister- take poor kids off street & put on farms around country where they could have benefits of clean air, wholesome values, etc- MOST KIDS WEREN’T ORPHANS
Orphan Trains: Took 200-300 street kids to MI- people picked kid out at train station family expected to take care, & have them work, Keep train going west until the kids were g1
Many problems besides no follow-up, neglect, kids end up everywhere
Gault & Transformation of Delinquency out from Parens Patriae
 Kent v. US: (1966) (dismantling parens patriae authority) Transferring juvenile to criminal crt required procedural due process
In re Gault (1967) -> crt held 14th amend & bill of rgts was for adults & children & due process IS required
        Didn’t get rid of or lmt parens patriae
        Rgts created for juveniles: notice of charges, confrontation & cross-examination, prohibition against self incrimination & rgt to counsel
Dependency Crt- Beginning of the 21st Century
Child maltreatment- now central business of dependency crts (sig # of these kids in middle class)
 New Deal- 1930’s- Inseparable from welfare policy; Aid to Dependent Children (under SSA)- tied to requirement that parents provide suitable homes for kids- was 1 of operative support systems for poor children until Clinton in mid-1990s
1912: started change in laws- revolutionized
1962: Battered Child Syndrome- several drs headed by C Henry Kempe: 1 of most sig events leading to professional & public awareness of existence & magnitude of CAN in US & throughout world- many accidents are actually child abuse
1967: m&atory reporting laws- 44 states has adopted m&atory, other 6 had voluntary, now all states are m&atory
1974: Child Abuse Prevention & Treatment Act (CAPTA)- gave $ for ability to report child abuse, reports skyrocketed; States are required to have m&atory reporting statutes, reporter immunity, confidentiality, & appointment of guardians ad litem for children
1980: Adoption Assistance & Child Welfare Act- reunification of kids & parents; designed to remedy problems in the f

rial should be able to testify re:
Degree of force necessary to produce such a fracture would exceed that of normal child care
Any reasonable person would recognize that it would hurt child
Given child’s response, it did hurt
Physical Abuse: What kind of discipline is physically acceptable: Assault & battery b/t parents & children?- parents have rgt to teach & punish
·         Fractures: look at the story of how they broke it, little kids b1s are rubbery, breaks requires lots of force
Transverse/Greenstick Fractures- blunt force, blunt object or h&
Spiral/Oblique Fractures- very suspicious in infants, nonmobile kids
Metaphyseal & Epiphyseal Complex Fractures- shaking or pulling on end of limb- little fractures at b1s’ ends
Not frequently discovered until x-rays
Are organic reasons for fractures- i.e. osteogenesis imperfecta (glass b1s), Copper deficiencies
Age of fracture(s) may be important to determine who had access to kid when injury occured & whether multiple fractures occurred on diff occasions
·         Bruises:
Types of Bruises
Contusion- injury where skin isn’t broken
Ecchymosis- puprlish patch of skin
Petechiae- red or purple spots caused by burst capillaries
Bruises will generally have shape of what’s caused them
Accidental bruises: Certain parts way more likely to be bruised than other areas if they are intended
Bruises on back, buttocks & lateral thighs are genly result of excessive discipline
Some medical conditions that cause bruise-like markings, leukemia, birthmarks, hempohilia (bruising w/ little force)
·         Lacerations: cuts on skin, sometimes pattern of lacerations indicates abuse
Lacerations in the mouth heal very quickly
·         Burns:
Dry Burns- show imprint of what’s burned them (ie cigarettes); deeper the burn, more serious & suspicious the situation
Wet Burns- liquid burns
Immersion burns- dipped into very hot water
Stocking & Glove burns- h&s/feet put into hot water
Doughnut scalding burn: child put into tub water at top is hottest, water at bottom is coolest, so burn varies at diff parts of body
This can get bad when child is going through toilet training
Accidental burns tend to be glancing burns, as the child pulls back from the accidental contact
Scald burns around mouth may result from hot liquid or corrosive agent being forced into child’s mouth. Corrosive burns around & in mouth & throat may also be caused accidentally if child ingests corrosive agents found around house. Must identify corrosive agent causing burn & determine whether child would have had access to it
·         Internal (Abdominal & Thoracic) Injuries
When child’s abdominal wall is relaxed when hit, internal organs absorb most of blow’s energy, may be no abdominal bruising. Most likely internal injuries will be to abdominal organs (liver, spleen, pancreas, gastrointestinal tract, or bladder) b/c thoracic organs are protected by rib cage
·         Abusive Head Trauma: w/ skull fractures, very important to hear the story: serious head injury or death rarely result from short falls or falls down stairs
Shaken baby syndrome (Shaken Baby Impact Condition)- drs starting to shy away from syndrome b/c they don’t want to tie it to scientific community- When child is shaken, rapid acceleration & deceleration of child’s head tears cerebral veins, causing bleeding… May cause brain edema which can be further exacerbated by apnea (intermittent cessation of breathing causing lack of oxygen to tissues)
Injuries commonly seen w/ shaking include intracranial head injuries, eye injuries & skeletal injuries
·         Munchausen by Proxy Syndrome: parents make kids sick, for parent’s mental needs
Involves fabricating, simulating, or inducing symptoms in a child or tampering w/ laboratory samples or monitors resulting in unnecessary medical procedures being performed on the child for diagnosis or treatment
Usually involves the M, esp those w/ some kind of medical knowledge
Very difficult to diagnose