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

Child Abuse and Neglect Week 1
Defining Maltreatment
·         Physical abuse, neglect, sexual abuse, psychological maltreatment, and medical neglect.
·         CAPTA – made small sums of money available to states that would conform their child abuse reporting and investigation laws to minimal federal standards.
I.                    Introduction
a.       3 philosophical approaches
b.      Three approaches to this area of the law (child abuse/neglect):
c.       (1) parents rights
                                                              i.      parents have concrete and compelling individual rights and the government only has the authority to intervene under very limited circumstances (statutes written narrowly)
                                                            ii.      certain legislation gives fair warning to parents (immunizations, schooling, child labor) State can clearly intervene.
(2) states protective role
d.      Because the state has this role the statutes should be written to give the state wide authority to protect children
e.       Sets relatively vague and imprecise limits upon authority to intrude and doesn’t provide fair warning to parents.
(3) parens patriae
e. State has the power to act in the best interest of the children—can be very broad if the courts authorize this power
                                                               i.      Parent’s right approach
1.       Parent’s have compelling rights
2.       Gov’t can’t intervene except for very limited circumstances
3.       Statutes have to be written very narrowly
                                                             ii.      State’s protection approach
1.       Parens patriae- the state has the power to act in the best interest of the children. Judge has the freedom to use his own subjective views.
a.       That power can be very broad
b.      Both the courts and dept of children services feel they have this authority
                                                                                                                                       i.      Because they are protecting the children
                                                                                                                                     ii.      Troublesome because they are rationalizing their actions because they are doing something good
                                                                                                                                    iii.      But really exercising the state’s police power
                                                                                                                                   iv.      Police are often the initial person involved
c.       Continues now- leads to bizarre results
d.      How do you approach these cases to get a positive result for the children?
2.       Historical background
a.       Oblation
                                                                                                                                       i.      Allowed parents to donate children to monasteries and they would work for the church
                                                                                                                                     ii.      The parents retained some rights-similar to the foster system now
b.      There were sometimes an area where infants could be left anonymously
                                                                                                                                       i.      Parents would see this as a temporary solution
                                                                                                                                     ii.      Would place pins on clothes to identify their children to hopefully to be able to go back and pick them up
3.       Safe delivery of newborns acts
a.       Leaving infant children exposed
b.      States wanted to prevent this
c.       Laws allowed the parents to leave the children at hospitals, police stations or fire stations
                                                                                                                                       i.      Could do it anonymously
                                                                                                                                     ii.      Wouldn’t be charged with abandonment if left child at the safe harbor
                                                                                                                                    iii.      Statutes are still in place
d.      It has gotten to the point where they were being abused
                                                                                                                                       i.      Situation in Nebraska last year-leaving teenagers
e.      A better way to address this problems was to set up orphanages (alms houses)
                                                                                                                                       i.      Were for needy children
                                                                                                                                     ii.      The municipalities were claiming these houses were a better way to raise impoverished children than in their homes
                                                                                                                                    iii.      Morphed into houses of refuge-just a nicer name
4.       Ex Parte Crouse
a.       Parent couldn’t control child
b.      Sent child to house of refuge
c.       Parens Patriae power
d.      Could detain the daughter because the parents are allowing the power
                                                                                                                                       i.      It is a school for a reform not a prison
e.      Courts will often say- children are always in some type of custody
                                                                                                                                       i.      Either with the parents or the state
                                                                                                                                     ii.      Uses this to exercise the parens patriae power on children
                                                            iii.      Child welfare
1.       There are often unintended consequences
a.       AWOL children
                                                                                                                                       i.      Esp teenagers who leave their placement
b.      In Wayne County there is a specialized docket
                                                                                                                                       i.      AWOL docket
                                                                                                                                     ii.      The court decided to put them in the detention facility
1.       The problem is that it is illegal
2.       Children that are neglect wards cannot be put into detention facilities-state and federal law
3.       Not good policy to treat neglected children like delinquents
4.       State agencies will rationalize what they do to kids is for kids
2.       Orphan trains
a.       Went west and would be picked out to work on the farms
b.      92,000 children that were on the trains
c.       The first stop was in MI
d.      19th century
e.      Many of those kids weren’t orphans
                                                                                                                                       i.      Just kicked out of the house by parents too poor to care for them
f.        Farmers often exploited the children-unpaid laborers
g.       Often be sent to multiple placements
                                                                                                                                       i.      Farm to farm to farm because of multiple problems
3.       Dwayne B v. Granholm
a.       Kids in foster care were in multiple placements
b.      Suitability of the foster homes
                                                                                                                                       i.      Whether they have been officially licensed
                                                                                                                                     ii.      Including family member homes
c.       Made efforts to require relatives to be vetted like that but also be provided foster care support to them
4.       Mary Ellen Case (1874)
a.       She was indentured to someone when she was 18 mnths old
b.      Caretaker provided payments to take care of her
                                                              

s the statutory definition and intervention is likely to do more good than harm.
2.       Should adopt a strong presumption for parental autonomy in childrearing.
3.       Serious harms or imminent harms
4.       Age of child
d.      Michigan Case-In Rea Jacobs
                                                                                                                                       i.      Mother had a serious head injury and became unable to care for child mentally
                                                                                                                                     ii.      The state took over care of child
                                                                                                                                    iii.      Need culpability- she was not able to care
                                                                                                                                   iv.      In the second section no culpability required
1.       The home was an unfit place for the child to live in
                                                                                                                                     v.      The court could take jurisdiction over the child
                                                                                                                                   vi.      Is this a reasonable approach
1.       The parent is not at fault
2.       Shouldn’t be there be some intervention for the child in case like this.
e.      Current case
                                                                                                                                       i.      A 5 wk old baby died in care of parents
                                                                                                                                     ii.      Found that he had died of brain swelling caused by blunt force trama to the back of his head
                                                                                                                                    iii.      Some bruising on the front of his head
                                                                                                                                   iv.      Hemorring in both eyes all the way to the optic nerve
1.       Either because of shaking or a blow to the head
                                                                                                                                     v.      The parents didn’t testify in the trial-were the caretakers
1.       No one abused or hurt the child and just found him unresponsive in his bed-parents claim
2.       So who is responsible for it?
3.       Is the older child safe in the home?
4.       Do not know who is responsible.
5.       Is this enough for the court to take jurisdiction and take away parent rights?
                                                                                                                                   vi.      Have to fill in the gap-having a rigid requirement of culpability would lead to endangering the older child.
 
Child Abuse and Neglect Week 2
·         2/3 of the cases are neglect cases.
o   30% proceed, about 150,000 cases, are substantiated each year. (Have enough evidence to proceed)
o   Standard – Preponderance of the evidence to substantiate.
I. Definitions of Neglect
o   Classical view – parents’ failure to provide their children with basic support, including shelter, failure to protect from harm, failure to educate.