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Executive Summary

Today, with few variations, state laws surrounding child abuse and neglect look remarkably similar. All share similar definitions regarding abuse and neglect; all require professionals to report suspicions under threat of prosecution; all provide confidentiality to anyone involved in an investigation—from the person making the allegation to the children and family members involved. These similarities are not accidental, but were accomplished with relative ease a quarter-century ago. They are the intended consequences of a federal law first passed in 1974 known as the Child Abuse Prevention and Treatment Act (CAPTA).

• Although much public attention has focused on the cost of public assistance (the former AFDC program), child welfare is a more expensive governmental activity and the more complicated. In 1995, the federal government spent about $11,698 per child in foster care, whereas it spent only $1,012 for each person receiving welfare benefits. When factoring in state costs, the average cost increases even further to $21,092 per child in foster care versus $2,499 for each person receiving a welfare check.
• The United States has had federally mandated child-protection laws for over a quarter of a century. Since these mandates have been in effect, child maltreatment rates have increased tremendously and child-protection agencies’ ability to handle the increase has declined:
• When CAPTA was enacted in 1973, child-protection agencies handled about 60,000 reports of abuse and neglect; today they handle 3 million.
• Substantiation rates have plummeted from a high of 61 percent in 1976 to a current low of 31 percent.
• Early estimates on confirmed abuse and neglect, while far from exact, ranged from 6,500 in 1967 to 360,000 in 1974.
• In 1997, child-protection agencies confirmed that 963,870 children were abused or neglected by their parents.
• Around the same time, more than 130,500 children entered foster care bringing the total number of children being taken care of by the state to 520,000.
• Less than 20 percent of all substantiated cases of child maltreatment go to criminal or civil court.
• Most children can remain home safely, even after a substantiated incident. Fewer than 20 percent of the three million children investigated are in sufficient danger that they have to be removed from their family.

Although spoken of in terms of social services, the child-protection function of child welfare is essentially a police action. The state conducts an investigation of a family based on an allegation and can use police power to enter a home and take a child or children into protective custody. The key difference is that for child-protection agencies (CPS), unlike the police, the focus is not on the perpetrator, i.e., the parent, but on the victim, i.e., the child. Hence it is the child who is removed, not the parent, when the situation is dangerous. This concentration on the child instead of on the one who causes harm is part of the problem. It is the result of treating child maltreatment, with rare exceptions, outside of the bounds of criminal prosecution, for behavior that if perpetrated against anyone other than a relative would result in assault charges.

The pervading problem in child welfare is one of perverse incentives that undermine personal responsibility. The child-protection system is built upon the notion that child maltreatment is remediable with the right therapeutic treatment. Child abuse is not regarded primarily as a violation of justice, but as either a symptom of illness or the result of economic deprivation. Parents are not at fault. Because abuse is not seen as a moral problem, it must be susceptible to professional help. It is therefore not surprising to find reluctance to ever pronounce any given parent irredeemable.

Child-protective services are the most-intrusive arm of social services, because child-protection workers have the power to determine whether or not a child should be removed from his family, sometimes permanently. Services always come with the understood threat of taking children away, whether that threat is real or only perceived.

Most families will never come into contact with the child-welfare system, because most families do not abuse or neglect their children. Most who do come in contact with this system live in poverty and are headed by a single mother. Families in crisis will always defy easy solutions. No policy proscription can prevent some parents from assaulting their children. Yet, some solutions can be teased out that would lower the numbers of children harmed by the very people who are meant to protect them—and do so without excessive public interference into the private lives of families.

The primary recommendations for reform are as follows:

1. Narrow the scope of child abuse and neglect definitions. Scholars and child-welfare experts from across the political spectrum agree that narrowing the scope of child abuse and neglect would allow CPS to focus on the most drastic cases. Much that is now defined as child abuse and neglect does not merit governmental interference.
2. Place the investigatory powers with the police. Police are trained in matters of investigation. It is the nature of child protection to be accusatory. Cloaking the investigation under social services and anonymity does nothing to hide that essential fact. The behavior that we are discussing is criminal in nature; therefore police should gather the evidence. Once the scope of what constitutes child abuse is appropriately narrow, local police would be the best government agency to conduct investigations. If the investigation suggests a crime was committed, the case would then proceed to court for adjudication.
3. Re-criminalize child abuse and neglect Having already narrowed the scope of child abuse and neglect to serious cases, what remain are cases of assault and serious neglect. That means that the standard would be the same if someone harmed a stranger’s child or her own. Now child abusers are only guaranteed punishment if they harm someone not related to themselves. Most importantly, criminal cases require public records and due process.
4. Repeal mandatory reporting laws that are in effect in all the states. Mandatory reporting laws, designed to encourage those who work with children to report incidents of maltreatment, have had two negative effects. First, they encourage unnecessary reporting because professionals must report all of their suspicions under threat of prosecution. While such prosecutions are rare, one shouldn’t have to report suspicions. Reporting should be restricted to more concrete evidence of a crime. Second, mandatory reporting discourages fellow citizens from taking positive neighborhood action with families in trouble. Citizens tend to consider that their responsibilities have been met when they call an anonymous hotline, because that is what the law tells them to do. Knocking on the door and offering help to a family, which is troubled, but not engaged in criminal behavior, may be the more appropriate alternative.
5. Make child and family services voluntary. Having separated criminal behavior from deficient parenting, we could enable caseworkers to do what they were trained to do and what they do best, i.e., social work. Without the threat of child removal hanging over their heads, parents might more willingly accept services—such as help with parenting skills. Knowing that an agency only provides services, parents might be more receptive to receiving such help. Moreover, these services should be privatized, as private agencies with performance-based contracts tend to work more effectively than state bureaucracies.

INTRODUCTION	1
THE TWO EXTREMES OF THE PENDULUM	5
CHILD-PROTECTIVE SERVICES: HOW THE SYSTEM IS STRUCTURED	12
A. Defining the Problem	13
B. Federalizing the Problem	14
C. Funding Streams: Who Pays for These Services?	18
D. The Structure: Who is Responsible?	19
E. Intake and Screening	20
F. Investigating and Risk Assessment	21
G. Court Determination	22
H. Casework: Monitoring and Service Provision	23
NUMBERS GAME: WHAT THE DATA TELL US	26
A. NCANDS: What CPS Agencies See	26
B. NIS: A More Comprehensive Look	32
WHERE SHOULD WE GO FROM HERE?	35
A. Recommendation for Reform	35
B. Conclusion	37
ABOUT THE AUTHOR	38
OTHER Reason Public Policy Institute STUDIES	38
FURTHER RECOMMENDED READINGS	38
GLOSSARY OF TERMS AND ABBREVIATIONS	39

Despite a slight decline in recent years, the number of children who are abused and neglected by their parents remains at staggering heights, even after a quarter-century of federally mandated child-protection laws. The United States has gone from around 60,000 reports of abuse and neglect in 1973, when the Child Abuse Prevention and Treatment Act (CAPTA) was enacted, to 3 million in 1997. The ability of child-protection agencies to substantiate or prove maltreatment has never been very high, so some of the reports might be credibly dismissed as mistaken allegations, especially since the average citizen’s awareness of child abuse and his duty to report his suspicions have also risen since the 1970s. Substantiation rates have plummeted from a high of 61 percent in 1976 to the current low of 31 percent. But mistaken allegations and increased awareness taken together cannot account for the precipitous rise in the number of substantiated cases of child abuse. Prior to federalizing the issue, national estimates on confirmed abuse or neglect, while far from exact, ranged from 6,500 in 1967 to 360,000 in 1974. More recently, the number of substantiated cases is significantly higher. In 1997, 963,870 children were abused or neglected by their parents, according to the U.S. Department of Health and Human Services. Around the same time, more than 130,500 children entered foster care bringing the total number of children being taken care of by the state to 520,000.

Not all abuse and neglect cases that are substantiated involve serious or life-threatening incidents. In fact, only a small fraction of the caseload represents serious traumas or fatalities. So the question becomes, what does a normal case look like? And if it is not a serious incident the first time a family is investigated, is there a likelihood that it will grow worse over time? Finding answers to these questions is important because public policy surrounding child abuse and neglect is usually driven by serious and fatal incidents of abuse and neglect. Politicians are often faced with the hard choice of supporting more funding for social services without a proven track-record or being accused of failing to protect children from harm. Understanding what most cases look like and what the research suggests regarding the treatment of child abusers will enable legislators to make informed decisions.

Many child-protection critics across the political spectrum have suggested that child-protective service (CPS) agencies are unnecessarily involved with many families just because they are poor. The inability of parents to clothe and feed their children adequately because of financial need, they argue, should not count as willfully malicious behavior. Because neglect makes up the majority of cases, there seems to be a degree of truth to this assertion. Nonetheless, some research suggests that it is precisely neglect cases that eventually turn deadly. In 1996, an average of 45 percent of child-abuse deaths involved neglect. Other studies also suggest that the incidence of children seriously harmed by abuse and neglect has risen dramatically over the past decade. But before we can tease out the answer to these more complicated questions, other more basic ones have to be addressed.

To begin, just how pervasive is the problem of child abuse and neglect? How many parents abuse their children? Is it a problem of family formation? Does corporal punishment inflate the incidence rates? How many times are a family’s privacy rights invaded unnecessarily? Those are the systemic questions. Next, there are the structural ones. Have child-protection service agencies always existed? How are they organized? Can anyone predict who will abuse? Can we treat those who harm their children so that they do not repeat the abuse later?

Any serious consideration of child-abuse policy should discuss these critical questions dispassionately. When the subject is child abuse, however, it is often hard to take the emotion out of the debate. Too often, reaction to a tragedy and the understandable desire "never to let it happen again" drives public policy. But a dispassionate look at child-abuse policy is critical if we are to avoid past mistakes. Insufficient objectivity regarding child abuse and neglect can imperil lives.

Once investigated for child abuse or neglect, a family is never the same. In the most extreme scenario, children are removed from their home and placed in foster care, sometimes for years. In that case, the child-welfare system may remain involved in that family’s life forever. Even if the children were not removed, the family can be affected in numerous other ways. In the case of a false allegation, parents must account for how they have raised their children to a state authority. They must disprove a negative, a difficult proposition in any circumstance, but especially unnerving if it involves one’s children. The ensuing fear that governmental authorities could decide to tear their family apart never goes away, inhibiting how parents comport themselves in public and causing them to wonder who thought they were harming their children. Trust in their neighbors and other associates erodes.

If an allegation is substantiated, there are more tangible results, even if the children are allowed to remain home: a parent’s name on a central registry that permanently bars his or her ability to get certain jobs; requirements that parents get certain services; and, periodic check-ups by social workers to see how the family is faring until the case is closed. The policy challenge is how to ensure that those who harm their children are held accountable for those actions while, at the same time, limiting interventions to those situations where clear evidence of abuse exists. The challenge is complicated by the growing recognition that past CPS-intervention policies do not appear to have diminished abuse or neglect.

Few who work at the front end of the child-welfare system think that it is in a healthy state, no matter whether one looks at the systemic questions or structural ones. Disarray abounds at the agency level, from heavy caseloads resulting in reports that go uninvestigated to high rates of caseworker burnout, a result of looking after the gruesome details of parental abuse and neglect. But child-welfare agencies are used to operating in a crisis mode, having done so since the emphasis shifted in the 1960s from family assistance to what the scholar, Duncan Lindsey, has termed the "soft policing" of child abuse and neglect.

Those who work in the field of child protection have developed a bit of trench humor to describe public policy as it relates to child welfare. They are fond of saying that policy is set by the pendulum, which swings from crisis to crisis. A child death translates into a policy of removing children too easily from their homes and keeping them in foster care too long. An overzealous removal rate then triggers the opposite reaction, dictating that too many children stay in dangerous settings as the agency tries to be more "family friendly." This policy remains in effect until another child dies under the agency’s watch. Letting pendulums set policy is not a rational course of action nor is it the only alternative available.

This study takes a critical look at child protection and child abuse to determine how to achieve the proper balance between government intrusion into routine family life and government intervention when citizens, in this case children, are being harmed. Having laid out the theoretical and practical problems of the current structure of child welfare in which child protection operates, the study will suggest several reforms tailored to encourage both responsible parenting and responsible policing. Before proceeding, however, let us look at two actual cases that illustrate the difficulties inherent in child protection.
 

Discussions surrounding child protection are usually infused with emotion. For those who do not follow the inner workings of the child-welfare system, the subject of child protection usually arises after a case makes headlines. Unfortunately, cases only make headlines when something dreadful happens: either a child dies or an agency’s interference turns the life of a normally functioning family upside down. Neither scenario reflects positively upon the agencies charged with protecting children from abusive parents. Neither scenario engenders dispassionate thought. The usual public reaction to child-protection agencies is anger: either the government is doing too much or too little, depending upon which story is making headlines. Meanwhile, child-protection workers have the seemingly impossible task of deciding whether or not to remove a child from a home, knowing that they will get the blame if something goes wrong.

Born weighing only four pounds, seven ounces to a crack-addicted twenty-six year old, Nia Scott of Sarasota, Florida required intensive neonatal care during the first weeks of life. Although the hospital did its job of restoring her to health, Nia didn’t make it to her third birthday. Nia’s older brother, born crack-addicted, was already in foster care. The Scotts had been involved with child protection since 1992, when their mother, Chrisandra Scott, habitually took her newborn son to crack houses. By the time of Nia’s death, five years later, the Scotts’ file was already six inches thick.

While her mother spent eighteen months in drug treatment (where she became pregnant with her third child), Nia thrived under the care of a loving foster mother. She was placed back with her mother when Chrisandra completed treatment. Although Chrisandra Scott soon returned to abusing drugs, abandoning her child with her boyfriend for days at a time, the child-protection agency did not intervene. Hearing of Chrisandra’s behavior, Nia’s former foster-mother phoned the child-protection hotline repeatedly. Child protection did not perform the required follow-up monitoring visits. This failure was made more likely because the Scott family moved across county lines and jurisdictions. Nia was beaten to death by her mother’s new boyfriend in what was described as a "potty training" incident; her mother had disappeared the night before saying she was going to the store and failed to return until she heard that Nia was dead. Upon discovering the circumstances surrounding her death, the public was understandably outraged.

To make matters worse, 61 other Florida children died the same year, tying a state record that no one was proud of. These deaths occurred at the same time that Florida experienced an unprecedented rise in reports. In 1997, the Department of Child and Family Services (DCFS) received 128,000 reports of abuse and neglect; of those reports, the department confirmed 68,500 incidents, a much higher rate of substantiation than the national average. All told, Florida had a 52 percent jump in caseload that year. In the aftermath of the 62 deaths—with five occurring in one week where the agency admitted making mistakes in each case—the Florida legislature radically restructured DCFS, passing a law requiring the complete privatization of all child-welfare services by 2003, going even farther than the state of Kansas by requiring the privatization of child protection.

That was not the first time that Florida—or other jurisdictions across the country—had responded to such devastating news with a call for reorganization. In fact, Florida’s DCFS had already been reorganized twice within the last six years. The legislature also allocated $15 million in additional funding for a nationally popular prevention program called "Healthy Families" in 1998. While it is too soon to tell whether the privatization of child protection will result in a lower incidence of maltreatment, prevention programs like "Healthy Families" already have a track record that is not very promising.

Public attention would probably only be focused on child deaths were it not for the journalists who have covered the prosecutions of ritual sexual abuse that have made headlines in recent years. One has only to name a few of the communities involved-Manhattan Beach, California; Dade County, Florida; and Wenatchee, Washington-to conjure up a vivid reminder of prosecutorial abuse.

The most recent case surfaced in the small town of Wenatchee in 1994 after a local police detective, Robert Perez, began investigating the molestation allegations of his 11-year old foster daughter. Initially the child named only her parents, but as she was rewarded with attention and applause every time she named someone else, the numbers of those accused quickly grew and the allegations became more convoluted. Detective Perez's investigation and the manner in which he proceeded eventually pitted everyone in the town against each other.

The girl and her siblings were initially removed from their homes because of physical, not sexual, abuse. She had lived with the detective and his family for six months before she made any allegations of incest. Only later did anyone notice that her initial and later embellishments occurred whenever she wanted to deflect attention from her own misbehavior. During one of the trials, Detective Perez admitted that her accusations began after he had threatened to send her to a mental institution. With the enthusiastic support of the child-protection agency, a year-long investigation ensued. Many more children were taken from their families, interviewed, and after repeated questioning, spun elaborate, but similar, tales of satanic worship and sexual abuse eventually involving a minister, his wife, and their entire Pentecostal church. The children—sometimes members of the same family—who refused to corroborate the stories were diagnosed with post-traumatic stress disorder and placed in therapy, sometimes in out-of-state institutions. Anytime a member of the community (including the pastor) protested that the charges were fabricated, they found themselves charged in the conspiracy and had their children removed as well.

Many of the children later recanted. But not before 43 adults—most of whom were desperately poor, unable to read, write, or afford good attorneys were charged with 30,000 counts of rape involving 60 children. Not understanding what they were doing, some even signed confessions, fearing that unless they cooperated, they would never see their children again. Over a two-year period, ten were convicted, while 18 pled to lesser felony charges.

While 11 still remain in jail, the Innocence Project Northwest, a group of law professors and students at the University of Washington, has worked successfully to overturn many of their convictions, largely on evidentiary grounds. The damage inflicted, however, is irreparable. Not only were many imprisoned and their reputations destroyed, some of the accused have lost their children forever, as the state terminated their parental rights and the children were adopted by other families. Other children still remained in foster care by summer 1999, even though their parents’ cases had been dismissed or overturned.

The children themselves are also scarred, both those who cooperated with the prosecution and those who did not. Research has consistently demonstrated that memory, particularly a child’s, is incredibly malleable, especially if a trusted adult, such as an authority figure, plants suggestions through leading questions. An unreliable memory, a young person's inability to distinguish between fact and fiction, and a child’s desire to please adults can lead to disaster in incompetent hands. Imagined events, moreover, seem no less real to a child. Those children, who became convinced that they had been sexually tortured in their church, remain convinced today. Those that were not convinced but cooperated with authorities later admitted they did so because they were told they had to admit to the abuse before they could go home. Now they have to live with the guilt of breaking up their families.

Unlike Florida, Washington state has not reacted with legislative calls to reorganize the department. But the public eventually demanded an official accounting, particularly after investigative reporters began covering the story across the state and nationally. An official review, conducted by the ombudsman for the Washington Office of Family and Children, was released on December 23, 1998. The ombudsman, Vickie Wallen, noted many improprieties about the investigation, not the least of which was allowing a foster parent to be the lead investigator on a case involving his foster daughter. However, the state still has not backed down on its claim that children were molested. As Wallen noted in the report,

It is difficult to determine how the department could meaningfully assess the Wenatchee cases without knowing more about what occurred in the child interviews . . . . CPS investigative process was not documented well enough to allow our staff to ascertain whether investigative mistakes occurred that led to errors in the accuracy of how the investigators were understanding what the children were actually saying . . . . We cannot hold the system accountable without knowing more about what happened.

Not every state official cooperated in Wenatchee. One social worker, Juana Vazquez, was fired when she protested the manner in which the investigation, particularly the interrogation of the children, was conducted. She was later awarded $1.57 million in damages in a civil suit against the Washington Department of Social and Health Services for wrongful termination. Another state employee was arrested for interfering in a police inquiry; his civil suit is supposed to go to trial sometime in 1999. The state legislature is currently considering a bill that would clarify how such investigations and interviews of child witnesses are conducted plus require training for caseworkers in interviewing techniques.

Cases like Wenatchee hold public attention precisely because they were prosecuted in criminal court and people went to jail. Criminal cases require public records and due process. But that is not the norm in child-protection cases. Less than 20 percent of all substantiated cases of child maltreatment go to court, either criminal or civil. Thus, with rare exceptions, most cases of child abuse and neglect never leave the social-service agency for independent review. That makes less sensational cases of social workers’ overreach hard to find and even harder to document, because agency records are sealed, even to those involved. Outside of knowing what the finding is, parents who are investigated cannot even access the files themselves. Those who complain publicly of mistreatment at the hands of social workers are easy targets for insinuation by agency staff hiding behind confidentiality.

Before despairing, critics should remember that, while child abuse has always occurred, such high rates of abuse have not. While no amount of government intervention can stop all abuse, even its most hideous forms, from occurring even if funds were unlimited, it should be possible to lower the numbers of children harmed by the very people who are meant to protect them—and to do so without excessive public interference into the private lives of families. Part of the problem with the current approach lies in the structure and purpose of child-protection agencies, which, if altered could lead to better outcomes.

The pervading problem in child welfare is one of perverse incentives that undermine personal responsibility. The child-protection system is built upon the notion that child maltreatment is remediable with the right therapeutic treatment. Child abuse is not regarded primarily as a violation of justice, but as either a symptom of illness or the result of economic deprivation, depending upon which theoretical model of abuse the social worker follows: the medical or the ecological model. Parents, according to either theory, are not at fault. Because abuse is not seen as a moral problem, it must be susceptible to professional help. It is therefore not surprising to find reluctance to ever pronounce any given parent irredeemable.

Deciding to intervene in cases of abuse and neglect is not a problem in and of itself; rather, it is the manner in which such intervention is carried out. Child-welfare advocates were long ago successful in removing all but the most severe cases of child abuse and neglect from the criminal-justice system. At the same time, what constituted child maltreatment grew to encompass evermore-expansive concepts such as emotional abuse and educational neglect. By forsaking the courts of criminal law, in which determinations of justice and injustice are made and punishments meted out, child-welfare agencies took on the much larger task of attempting to heal family members who have gone wrong. The therapeutic regimen is carried out by providing various services from things as simple as housekeeping to as complicated as long-term therapy for pedophiles, depending upon the presenting problem.

This model of treatment creates two perverse and contradictory courses of action: barely veiled force, on the one hand, and unjust behavior on the other. Case workers always hold the well-understood threat of taking away one’s children if one fails to comply with agency dictates. Conversely, the parent is given multitudinous chances to improve to the risk and detriment of the child, because abuse, unless severe, is not seen as a criminal problem.

Although spoken of in terms of social services, the child-protection function of child welfare is essentially a police action. The state conducts an investigation of a family based on an allegation and can use police power to enter a home and take a child or children into protective custody. The key difference is that for CPS, unlike the police, the focus is not on the perpetrator, i.e., the parent, but on the victim, i.e., the child. Hence it is the child who is removed, not the parent, when the situation is dangerous. This concentration on the child instead of on the one who causes harm is part of the problem. It is the result of treating child maltreatment, with rare exceptions, outside of the bounds of criminal prosecution, for behavior that if perpetrated against anyone other than a relative would result in assault charges.

What exactly do agencies mean by abuse and neglect? Definitions of maltreatment are codified in state statute, although very much influenced by federal legislation. These laws can be further refined by departmental regulation. The regulatory impetus is for precision, but that means that much governance is done through policy issuance of which the general public is often unaware. This ignorance makes it difficult to complain about enforcement actions until one finds oneself at the wrong end of a child-protection investigation and discovers one has violated policy. For example, how many parents know that it is considered neglect in Fairfax County, Virginia to let one’s seven-year-old child play unattended in the backyard? This standard was set by child-protection staff attempting to define the vagaries surrounding neglect. Once substantiated, however, one is placed on the state’s central registry of known child-abusers.

While state definitions vary, all states tend to follow these broad definitions:

For purposes of abuse and neglect, a child is anyone under 18. Sometimes states use the qualifier "serious" to modify the child's risk of maltreatment; this qualifier allows the caseworker some leeway regarding removal to foster care. Narrowing the definitional scope is a recent development as state legislatures have responded to the increased demands on the child-welfare system stemming from cases that were more serious. Indiana, for instance, uses the qualifier "serious" to modify endangerment for both abuse and neglect.

Whatever one thinks about the appropriateness of corporal punishment, it is not necessarily child abuse per se. Note that punishment must be developmentally appropriate. Spanking or shaking an infant can cause internal damage, even death, to the child; hence it is a potentially life-threatening form of abuse. CPS agencies spend very little time on cases of corporal punishment; where they most often become involved is when such punishment crosses the line: when, for example, such punishment involves scalding (as in scalding a child as a form of potty-training), the use of implements that can cause internal damage to punish a child, or the burning of a child.

Neglect is the single-biggest subset of maltreatment, constituting almost 60 percent of the caseload. It is also the hardest to describe because it encompasses a disparate variety of behavior from simple inattention to more complicated behaviors. Neglect includes both failing to foresee possible harm and failing to provide minimal nourishment and attention. It includes failing to supervise a child that could, but did not necessarily, cause accidental harm to a child, as well as more pathological behavior by the parent that results in, for example, starvation or "failure to thrive." CPS can be involved in both kinds of cases, although the latter are decidedly more serious and usually require removal. A recent U.S. Department of Health and Human Services (HHS) publication on the problem of substance abuse and child abuse notes: "Neglect is especially predominant in child maltreatment reports in which the parent has a substance abuse problem." While child welfare does not catch all problems, "Of children prenatally exposed to drugs, most studies find that approximately 10 to 20 percent enter foster care around the time of birth and that about a third do so within a few years."

Neglect also includes the subset of medical neglect. Medical neglect becomes particularly problematic when the neglect is due to religious belief. Cautious of interfering in the free exercise of religious liberty, the state usually steps in only to remove the child temporarily; the child gets the medically necessary treatment, such as an appendectomy or antibiotic treatment, and then CPS returns the child to the parents without any further intrusions. Only in a few states is religiously motivated medical neglect treated as criminal; prosecution occurs usually as a result of a child's death. 

Today, with few variations, state laws surrounding child abuse and neglect look remarkably similar. All share similar definitions regarding abuse and neglect; all require professionals to report suspicions under threat of prosecution; all provide confidentiality to anyone involved in an investigation—from the person making the allegation to the children and family members involved. These similarities are not accidental, but were accomplished with relative ease a quarter-century ago. They are the intended consequences of a federal law first passed in 1974 known as the Child Abuse Prevention and Treatment Act (CAPTA), sponsored by Walter F. Mondale in the Senate and Patricia A. Schroeder in the House.

Before the passage of CAPTA, federal authority regarding child abuse and neglect was limited to suggestions (such as model reporting laws) and some general funding under the Social Security Act. Even suggestions from the federal government, however, shape state policy. In 1963, the Children’s Bureau in the U.S. Department of Health and Human Service (HHS) wrote a model law for reporting suspected child abuse and 13 states soon enacted the suggested legislation, prompted largely by an article by C. Henry Kempe and his colleagues in the Journal of the American Medical Association.

In the article, Kempe, a Denver physician, presented findings on what he termed "the battered child syndrome." Kempe had garnered evidence that some children under three were showing up in emergency rooms with broken bones—spiral fractures specifically. Because of the way the bones had broken, which could now be detected on x-ray, they could not be the result of falls. In other words, the damage appeared to be intentionally inflicted and could not have occurred in the manner that the parents claimed. He also noticed that these same children had sustained previous fractures over time.

By the passage of CAPTA, every state already had reporting laws. But the desire to federalize the problem of child abuse and neglect intensified after the compelling testimony from a panel of experts (including Kempe), victims, and perpetrators of child abuse. Expert testimony coupled with the riveting statements from an anonymous parent who told of her abusive behavior provided the impetus for federalizing the problem.

The passage of CAPTA in 1973 formalized and cemented a trend already begun in the states of making child welfare primarily a governmental concern. But it began as a private effort. In the late 1800s, voluntary and private associations of citizens who wanted to help poor children such as Societies for the Prevention of Cruelty to Children (SPCC) and Children's Aid Societies, began springing up across the nation. By the 1920s, there were 250 societies spread across the East Coast and in the Midwest affiliated under the American Humane Association. As Patricia Schene, an expert in child protection at the University of Colorado at Denver, writes, "These private agencies, supported by public and private funds, investigated reports of child abuse and neglect, filed complaints against the perpetrators in court, and aided the courts in prosecution of those complaints. Some SPCCs were given police powers and could take custody of children pending the investigation." These private agencies were not hampered by regulations. The "child rescuers," as they were often called, were not hesitant about removing children from families they deemed unworthy. The first annual report of the SPCC records its mission as:

. . . to seek out and to rescue from the dens and slums of the city those little unfortunates whose childish lives are rendered miserable by the constant abuse and cruelties practiced on them by the human brutes who happen to possess the custody or control of them.

This attitude began to fade in the progressive era with the belief that whole communities, not just the children, could be restored and transformed from squalor. But that only replaced the oversight of fellow citizens with that of a government agency. In many ways, the child-welfare system is still coping with the effects of the progressive movement's optimism.

By the 1950s, the District of Columbia and 35 other states already had legislation mandating that child-welfare services be provided by state agencies. In 1956, the states had 5,628 employees dedicated to child welfare; by 1977, just three years after the passage of CAPTA, that number had risen to 30,000.

CAPTA was an important piece of legislation for many reasons. It proved an amazingly effective change agent using a relatively small amount of money by federal standards. CAPTA federalized the issue of child abuse and neglect by creating the National Center on Child Abuse and Neglect (NCCAN) with a staff of twenty-five at its peak. NCCAN was originally located at the U.S. Department of Health, Education, and Welfare. Later, it moved to the newly created Department of Health and Human Services (HHS), continuing until 1998 when its status was lowered to the Office of Child Abuse and Neglect (OCAN) and its staff reduced. Although its organizational status is lower, its funding level is not. The original law also authorized a national commission of experts that convened several times annually and issued reports under federal auspices that shaped policy nationally.

Over the years, NCCAN has funded demonstration and research grants and contracts on various aspects of abuse and neglect. With each reauthorization of CAPTA, discretionary funding shifted to reflect congressional interests on the subject. But its greatest impact was at the state level. CAPTA granted money to states that adopted laws mirroring regulations drawn up by the NCCAN based upon guidelines within CAPTA. If states adopted these laws, they would be awarded what came to be known as "basic state grants." States could use that money for a broad array of purposes, as long as it fell under the general guidelines of "developing, strengthening, and carrying out child abuse and neglect prevention and treatment programs." Two further state grants were added in the 1980s: one addressing child sexual-abuse and one geared toward encouraging states to spend money on prevention efforts.

Until 1996, CAPTA had been reauthorized and refined over the years with little substantive changes. Before then, however, the federal government, through HHS, exercised tight control over state legislation regarding the definition of child abuse and neglect and the manner in which child protection was handled. If a state wanted continued access to funding under the "basic state grant," its laws had to be reviewed yearly by both a federal program-officer and HHS attorneys. With the reauthorization of CAPTA in 1996, however, the states were given greater leeway and authority to determine what constitutes child abuse and neglect. Under the new act, the required definitions are looser (for example, states can now use the qualifier "serious" to modify abuse). Moreover, states may now certify that they are in compliance, instead of having to submit proof to HHS. Still most states (except Indiana, Maryland, and Pennsylvania) had already complied with the pre-1996 requirements.

The most important requirements were as follows:

1. Child Abuse and Neglect Laws. HHS was exacting about state compliance. (See definitions above for general outline.) No limitation, omissions, or qualifications were allowed.
2. Mandatory Reporting. While the law left states latitude as to who would be required to report, the state had to mandate reporting, usually, at least for professionals such as teachers and doctors. Some states make all citizens mandatory reporters. Mandated reporting is coupled with the threat of prosecution if one fails to report a suspicion. Note that reporters do not need proof; just a suspicion triggers the reporting requirement.
3. Comprehensive CPS System. This requirement obligated states to set up a complete system capable of handling all aspects of child maltreatment from toll-free hotlines all the way through the investigatory process and disposition.
4. Confidentiality of Records. States were only allowed to release information to other governmental agencies with a need to know such information. For example, if a family crossed jurisdictions, the state could forward the confidential records. Or if a child died, the records could be given to the child-death review team for investigation. With the 1996 reauthorization, states are allowed even more leeway to release some details to the public in the event of a child’s death.
5. Anonymous Reporting and Immunity. States had to take all reports, including anonymous ones. States also had to guarantee anonymity as well as immunity from prosecution if the reporting person made a good-faith report.

Once states verified that they met these and other requirements, they could qualify for the "basic state grant" funding. Most states did comply. The few states that failed to meet all the requirements only failed to meet the strict definition of maltreatment: all states had reporting laws and a complete child-welfare system capable of responding to reports of maltreatment.

 

Despite the similar sounding names, child-welfare services are distinct from welfare services (formerly Aid to Families with Dependent Children or AFDC, now known as Temporary Assistance to Needy Families or TANF) and have been for some time. Since welfare reform, TANF services have shifted from being a check-delivery system for single mothers to one aimed at helping mothers attain self-sufficiency by entering the workforce. In contrast, child-welfare services are governmental services provided to families in distress. That distress may have been exacerbated by poverty, but is not the sole cause of government intervention.

Although much public attention has focused on the cost of public assistance (the former AFDC program), child welfare is the more expensive governmental activity and the more complicated. In 1995, the federal government spent about $11,698 per child in foster care, whereas it spent only $1,012 for each person receiving welfare benefits. When factoring in state costs, the average cost increases even further to $21,092 per child in foster care versus $2,499 for each person receiving a welfare check.

Source: Mark E. Courtney, "The Costs of Child Protection in the Context of Welfare Reform," in The Future of Children: Protecting Children from Abuse and Neglect, vol. 8, no. 1 (Spring 1998), pp. 93-94.

Money for child welfare services comes from multiple funding streams at various levels. Local, state, and federal sources are all used, although each stream comes with its own restrictions. While difficult to tabulate, experts estimate the costs for child welfare at more than $11.2 billion a year. But this estimate is incomplete. It does not include local funding, expenses from law enforcement, or from health and mental-health services. To give a sense of how much money is not accounted for in direct federal and state funds, consider the following example. A mother in Kansas recently had her parental rights terminated for her five children due to neglect. The state paid $4,000 worth of dental expenses as all of the children’s teeth had rotted because the children were still bottle-fed, even though the oldest child was over five years old.

Welfare and child welfare are still related via funding because, in order for the states to access federal dollars for foster-care placement, the child must be AFDC eligible. Since 1961, the federal government has matched foster-care payments if a child’s family is eligible for welfare and the child is placed in a licensed home. This funding is not insignificant; it can range anywhere from 50 percent to 78.6 percent of the foster-care payment. In addition, states have access to federal dollars that can be used to pay for administrative costs, training, and other services. Table 2 provides a listing of various federal funding-streams that states may use in allocating funds to child protection.

Source: Mark Courtney, "The Costs of Child Protection in the Context of Welfare Reform," p. 90.

 

CPS agencies, while paid for by a mix of funding and sometimes administered at the state level, are always provided at the local level. The caseworker must be able to get to the family’s home in a timely fashion. Thus every community has a CPS agency nearby. The amount of local control varies from state to state; sometimes child protection is state-administered and sometimes county-administered. If it is administered at the county level, the state is often little more than a pass-through for federal funding. Otherwise, CPS agencies are generally managed by a department of the governor’s choosing, usually wherever social services are located. Many states, especially after welfare reform, have reorganized their departments of health, removing social services to a separate department. Florida’s CPS unit, for example, is within the state’s Department of Children and Family Services. The state of Texas, however, runs its child-protection unit through its Department of Regulatory and Protective Services. The bottom line is that there is no required configuration for these services. To receive federal money, however, states do need to comply with federal requirements.

When an agency receives a report of suspected maltreatment, it must follow procedures. Table 3 provides a quick checklist of what an agency goes through in considering a report of abuse and neglect. The procedures are detailed below.

The first step is called intake. Someone makes a call, usually to a toll-free hotline number, alleging that someone—either a parent, guardian, or caretaker—is abusing or neglecting a child or children. This is called a report. Persons reporting abuse can choose to remain anonymous or can leave their name and where they can be reached in case the investigator has any follow-up questions. From there, the intake worker determines whether or not the case falls within the state guidelines of maltreatment. The state of Virginia, for example, no longer even considers reports of corporal punishment because Virginia’s caseload is backed up with more urgent cases. Other states no longer count educational neglect (truancy) as a problem for CPS to handle, so the caller might be referred to the state’s department of education.

Who makes the determination regarding the report varies from state to state. Sometimes it is the intake worker (the person at the other end of the phone); at other times, states separate this function off into a unit utilizing more highly trained workers. Arkansas, for instance, has transferred all of its screening and investigations to its state troopers, placing the investigation outside of the social-work world.

Screening a report for investigation is a complicated task. To determine whether a report should be screened in, i.e., accepted for investigation, the screener has to decide whether the report is credible. Key criteria for consideration are:

When a report does not rise to the level of further investigation, it is "screened out." Some families screened out are eligible for other services and may be referred for them, such as family-support services, so that whatever troubles they are having will not worsen. This is known as a differential response. Missouri employs this method of serving families as a way of addressing family problems without the adversarial nature of an investigation attached.

Once a decision is made to investigate, the screener determines how urgent the report is—whether an investigator should be sent immediately or whether it can have a less-heightened response. The timeframe that CPS has to respond to any given complaint can be specified in state statute or departmental regulation. The judgment required to make that determination, however, is based on the kind of abuse alleged, whether there have been previous incidents involving this family, and who is making the report. Physicians, for example, have higher substantiation rates than anonymous reporters. If the physician thinks it is serious, there is an increased likelihood that it is. Next, the report goes to the investigator.

The investigator must first find where the children are, interview them, and all family members in order to determine the accuracy of the report. Children are interviewed without the presence of the parent, i.e., the alleged perpetrator. The investigator’s task is to determine whether a case is substantiated or unsubstantiated. Substantiated means that the preponderance of evidence suggests that the incident occurred; unsubstantiated means that the investigator could not find evidence of abuse or maltreatment. Remember that this is not a police investigation, so the standard of evidence is considerably lower. Some states add a third tier to the system of findings, i.e., indicated. Indicated means that there is some, but not sufficient, evidence to think that the allegation occurred. States have added this third possibility out of concern for the numbers of cases that originally were unsubstantiated but later returned with substantiated abuse or neglect.

If the report is substantiated, the investigator has another set of decisions to make. If a child’s injuries are severe or the report involves a child’s death, the police will become, or may already be, involved. Otherwise, the investigator makes several determinations:

• Is the child in danger?
• Was this a one-time incident or habitual?
• Is there a likelihood of recurrence?

Those are just a few considerations that go into an investigation. Sometimes agencies use a risk-assessment tool to figure out whether the child needs to be removed from the home; but caseworker judgment is always paramount.

At this point, the investigator often decides that future risk to the child is not sufficient to warrant removal but that the family could benefit from services. More often than not, the children can remain home safely, even after a substantiated incident. Fewer than 20 percent of the three million children investigated are in sufficient danger that they have to be removed from their family. To put this number in perspective, consider that there are currently over 520,000 children in foster care. When children are not removed from their home and the case is substantiated, CPS may need to make follow-up visits to ensure that the family has remained stable. If the child or children must be removed, CPS will have to involve the judicial branch.  

Source: Adapted from Pat Schene, "Past, Present, & Future Roles of Child Protective Services, in The Future of Children: Protecting Children from Abuse and Neglect, vol. 8, no. 1 (Spring 1998). 

While most child-abuse cases do not result in criminal prosecution, a CPS agency still needs court approval to remove a child from the home. Once in foster care, a child and his or her family will remain involved with the court until the child returns home, is adopted, or ages out of the foster-care system. To attain court approval, the CPS agency first files a petition with the court for emergency removal and temporary custody; this must be filed no later than three days after the removal. The child is usually put into temporary shelter until a suitable foster home is found. Federal regulations require that if a child is removed, the child be placed in the least-restrictive and most home-like setting; sometimes that takes time. Next, either the child is returned home or will have to stay in foster care for awhile. In the latter case, the agency will have to file for temporary custody. Then, the child-welfare agency makes a case plan or a permanency plan detailing how, when, and if it will be safe for the child to return home. The judge's role is to review the case to see if the agency has followed regulations regarding permanency. That means that the caseworker should recommend either a return home or, if there is no improvement over a period of time, termination of parental rights. The court is required to review cases periodically (as is the agency) to ensure that children do not drift aimlessly through the system.

 

Once a child enters foster care, the case and the requirements surrounding it become infinitely more complicated. Foster care is supposed to be a temporary placement for children. Once a child is removed from home by CPS, the child is placed in foster care, usually a home (sometimes a formal arrangement in a relative’s home), a shelter, a group home, or even a residential treatment center (if the child has emotional problems). The child remains in care—often moved from one placement to another—while the parent (or parents) undergoes treatment or counseling in an attempt to become a fit caretaker. The caseworker must set clear goals for parents so that they know what must be done in order for the children to return home. The plan will also detail when the parent can visit with the child. As Duncan Lindsey, at the School of Public Policy and Social Research at the University of California at Los Angeles, notes: "one of the most important variables determining a child’s progress while in foster care was the extent of parental visiting, which affected both the length of stay and how well the child adjusted while in foster care." Failure by the parent to attend supervised visitation with the child is one indication that the parent is uninterested in reforming and may lead the caseworker to consider termination.

The majority of children, however, are slated to return home. In fact, 60 percent of children currently in foster care are supposed to return to their homes eventually, according to the latest data from the U.S. Department of Health and Human Services. Returning home, however, does not cease their involvement with CPS. Once reported, parents are likely to be reported again. In fact, many children will return home only to reenter foster care at a later date. The most-comprehensive national study suggests that the foster-care reentry figure is as high as 30 percent. For those who are allowed to stay home, the story is not any better. In one longitudinal study conducted by Michael Wald, former Deputy Secretary for HHS, and his colleagues at Stanford University, over half of his sample of children who remained at home after a substantiated incident of abuse and neglect were abused again within two years.

At all points in the decision-making chain, CPS has the authority to provide family services, however "between 40 percent and 60 percent of cases in which maltreatment is substantiated receive no subsequent services." The track record of those who do receive services is not all that promising. Family-preservation services, for example, have never been able to demonstrate their effectiveness.

Family preservation is a form of therapeutic treatment that has been around since the 1970s in which intensive services are provided to families whose children would normally be placed into foster care. With family preservation, caseworkers make themselves available, sometimes twenty-four hours a day, to a limited number of families for a short time (from six weeks to six months), in an attempt to get the family over a specific crisis and show the parents how to handle the stress without abusing or neglecting their children again. The worker will help organize every intimate detail of a family’s life: teaching parenting skills; helping with the shopping, cleaning, and bill paying; providing transportation to appointments and counsel to family members.

But initial claims of family preservation’s success were based upon lower foster-care rates that result when agencies use family preservation. Peter Rossi, emeritus professor at the University of Massachusetts at Amherst, points out that avoidance of foster care is a terrible outcome to test because it is the intervention, not the outcome. Instead, he cautioned evaluators to look at indices such as child safety and future rates of abuse as better measures of whether family preservation works. Richard J. Gelles, Chair of Child Welfare and Family Violence at the University of Pennsylvania, has also called attention to the bad effects of intensive intervention when it comes to serious cases of child abuse. Gelles notes that all rigorous studies of family intervention have failed to show that working intensively with parents for a short period of time has any affect on future abuse rates or future need for foster care. An extensive evaluation of family preservation in Illinois showed little effect upon the families who got these intensive services and in fact, these families had a higher placement rate in foster care. Duncan Lindsay puts it starkly: "the more rigorous the research design, the more convincing has been the evidence that these services have failed to provide significant improvements for clients."

 

Part 4

Because reliable data are both critical to public policy and expensive to gather, the two most-complete efforts of data collection to date have been mandated and funded by Congress. The privately funded Prevent Child Abuse America (PCAA), formerly the National Committee to Prevent Child Abuse, has also gathered data from the states over the years. While PCAA has done so for a longer period of time than the federal government, its numbers are point-in-time, aggregate data only and hence, not unduplicated. In other words, because PCAA does not work with raw (and continuously updated) data, some reports may be accidentally counted more than once; some cases counted as substantiated may not be. Despite this qualification, PCAA’s numbers have always tracked closely with the public data-sets.

The two official sources of data are known as the National Child Abuse and Neglect Data System and the National Incidence Studies of Child Abuse and Neglect. (There have been three incidence studies: NIS-1, -2, and –3.) Both of these federal efforts are managed by the Children’s Bureau in the U.S. Department of Health and Human Services (HHS). Each data set represents a different method of counting maltreatment. Each study shows us something different about child abuse and neglect.

 

The National Child Abuse and Neglect Data System, known as NCANDS, has been collected annually from state child-welfare agencies since 1991. From its inception, CAPTA required that the federal government develop a data system to collect and analyze case-based information on child abuse and neglect. NCANDS captures what state child-welfare agencies know about child abuse and neglect by taking data directly from their management-information systems, compiling the data nationally, while checking that the files are as accurate as possible. NCANDS catalogs each report of abuse and neglect by type, records whether or not it was confirmed and who reported it, and provides general characteristics on both the victim and the perpetrator. The latest report, Child Maltreatment 1996: Reports from the States to the National Child Abuse and Neglect Data System, provides the most-complete picture of child-protective investigations available.

Beginning with the latest report, HHS has also begun incorporating more-detailed information from 11 states; this effort is known as the Detailed Case Data Component or the DCDC of NCANDS; the DCDC collects an additional 98 elements from 11 states. Children in these 11 states, moreover, constitute approximately one-third of the child population in the United States. This detailed information allows for a more-refined analysis by providing more information about what kinds of cases CPS agencies are seeing annually.

NCANDS tells us the following about children who are abused and neglected and who are known to the child-welfare system. First, child-protection agencies investigated over two million reports in 1996 involving over three million children. CPS agencies were only able to substantiate 28.3 percent of the allegations. CPS investigations indicated abuse in an additional 6.1 percent of the cases. In an overwhelming majority of investigations—57.7 percent—CPS agencies were unable to substantiate that children had been harmed.

 The low levels of substantiation have led many experts from across the political spectrum to call for a narrowing of the purview of child protection, particularly when considering that the substantiation rate has declined by 38 percent over the last two decades. Either CPS is intruding into too many families’ lives unnecessarily or its ability to detect maltreatment is seriously flawed.

Professionals who report suspected child abuse and neglect have the highest substantiation rates; however, no profession has a higher than 35 percent substantiation rate. Law enforcement had the highest substantiation rate of 35 percent, followed by education personnel with 32 percent, and medical personnel with 27 percent. This figure includes both substantiated and indicated cases; considering only substantiation rates, no one has a higher accuracy rate than 20 percent. The lowest rate of substantiation comes from childcare personnel, victims, and perpetrators. On the other hand, anonymous reporters have a substantiation rate of 14.8 percent. Figure 3 provides details on substantiation rates based on who does the reporting.

Out of the 3 million children whose families were investigated, CPS agencies substantiated or indicated 970,000 cases of child abuse and neglect. The cases broke down into the following subsets of maltreatment:

• 58 percent were cases of neglect
• 22 percent were physical abuse
• 12 percent were sexual abuse
• 6 percent were emotional abuse
• an additional 15 percent fell into the category of "other."

When comparing data over the years, these numbers have held fairly constant, with a slight decrease in sexual abuse and a slight increase in neglect. The decrease in sexual abuse may be due to a backlash from episodes like Wenatchee.

From the details of the cases, NCANDS also reveals some information about the victims. According to NCANDS, the younger the child, the more dangerous it is to be in an unstable household. Two-thirds of all neglect cases (62.9 percent) occur to children who are under eight years old. Three out of every four children who died from abuse and neglect were three years old or younger. Girls were maltreated slightly more often than boys were, 52 percent versus 48 percent. Girls were also much more likely to be sexually abused than boys (77 percent of all sexual abuse victims were girls). While the majority of children maltreated were white, African-American and American-Indian children make up a disproportionate number of the victims compared to their representation in the population at large.

Parents are the usual perpetrators, accounting for the majority of all cases of abuse and neglect (77 percent). Four out of every five incidents involve a perpetrator under the age of 40. Although public attention has focused on teenaged mothers, those at highest risk for abusing a child are between the ages of 30 and 40. In the majority of cases (61 percent), a woman is responsible for the harm.

Because NCANDS data have been collected over time, we can begin looking for trends. As can be seen from Table 4, from 1990 to 1996 the number of children harmed by abuse or neglect has increased by 17.6 percent. Some states’ abuse rates have risen dramatically in the past six years: California’s abuse rate has gone up 132 percent; Washington, D.C. by 82.8 percent; New Mexico by 102 percent; Idaho by 230.6 percent. On the other hand, some states have actually decreased their caseloads: New Jersey by 46.1 percent, Virginia by 27.5 percent, and South Dakota by 36.7 percent. Further analysis of why rates in certain states rose and fell will yield useful information for policymakers in years to come. Furthermore, a refined analysis of the DCDC to determine how many children suffer repeated incidents of maltreatment may lead to a better understanding of when the termination of parental rights and the release of the child for adoption are appropriate.

Source: U.S. Department of Health and Human Services, Child Maltreatment 1996: Reports from the States to the National Child Abuse and Neglect Data System, (1998) Table 2-2, p. 2-6.

 

While NCANDS measures the cases of maltreatment that state agencies know about, it cannot tell us whether the state made an accurate assessment of the cases investigated. Nor can it tell us anything about the cases that child-protective agencies screened out or the ones t