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The Oxford Introductions to U.S. LawFamily Law$

Brian Bix

Print publication date: 2013

Print ISBN-13: 9780199989591

Published to Oxford Scholarship Online: April 2015

DOI: 10.1093/acprof:osobl/9780199989591.001.0001

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Abuse and Neglect

Abuse and Neglect

(p.109) Seven Abuse and Neglect
The Oxford Introductions to U.S. Law

Brian H. Bix

Oxford University Press

Abstract and Keywords

This chapter examines the doctrines of abuse and neglect, two categories of criminal liability and civil liability terms for when children can be taken from their parents. It begins with an overview of standards for abuse and neglect before turning to culture and religion as defenses against claims of abuse and neglect. It then considers procedural protections to parties who are facing termination of their parental rights and concludes by explaining foster care within the context of family law and practice.

Keywords:   abuse, neglect, criminal liability, civil liability, children, parents, culture, religion, foster care, family law

THERE ARE LIMITS to parental rights and limits to state deference to parental choices. These are expressed in doctrines of abuse and neglect—which are both categories of criminal liability and civil liability terms for when children can be taken from their parents. Sometimes the override of parental prerogative is for a limited time and a limited purpose (regarding parental decision making in (e.g.) medical, educational, and religious matters), where particular decisions are thought to be extremely harmful to the child, but that the caregiving competence of the parent(s) is not otherwise questioned.1

There was a time, and not that long ago, when what happened within a family (especially if it occurred in the privacy of the home, but even to some extent if it spilled out into public places) was considered “not anyone else’s business,” and certainly not the government’s business—with few limits this side of murder. This is no longer the case:2 abuse of children, like the domestic abuse of adult partners, is considered a crime and, in the case of children, (p.110) appropriate grounds for removing children, and, in more serious cases, the termination of parental rights.

According to a recent report of the U.S. Department of Health and Human Services,3 772,000 children were maltreated in the United States in 2008, slightly more than 1 percent of all children.4 Of those, 71 percent suffered neglect, 16 percent were physically abused, 9 percent were sexually abused, and 7 percent suffered psychological maltreatment.5

While much of the law of child abuse is relatively uncontroversial—few would argue that those who severely beat their children or molest them sexually should not be subject to punishment—there are some areas where the borders of appropriate behavior are more controversial: for example, regarding which forms of corporal punishment are acceptable (this example is revisited in section B, below). Also, as already noted, the finding of abuse can be separated from the question of when children should be separated—temporarily or permanently—from their parents.

Children can also be taken from their parents’ home on the grounds of “neglect.” Neglect is a failure of a parent to give his or her children a sufficient amount of food, clothing, shelter, or medical care to reach minimal standards of child care, or a general failure to supervise the child.6

One should note that both law and social practice seem to move, pendulum-like, between a focus on protecting children (even if that (p.111) means breaking up families) and a focus on maintaining families (even if that means keeping some children in situations where their well-being is clearly at risk).

A. Standards for Abuse and Neglect

The standards of abuse and neglect vary from state to state; they are usually set by statute, though often in terminology too vague to give much guidance either to parents or to courts.7 Of the two, abuse tends to be the more clearly defined; however, even with abuse laws, there are many areas of controversy and uncertainty. One such area is corporal punishment: at what point—with what means of punishment, or level of injury caused—does discipline become abuse (or battery)? Both the social services agencies and the courts vary greatly in their response to such questions.8

There are policy questions about possible secondary legal effects of a finding of abuse. For example, if a parent abuses one child in that parent’s care, should that be a sufficient ground for removing (temporarily or permanently) other children from that parent’s care, even if there is no evidence of that parent having harmed those other children? If a parent knows of but does not stop the abuse (p.112) of that parent’s child by someone else in the house (whether the other legal parent, a step-parent, a temporary partner, or someone else), is that sufficient grounds for taking the child away from that parent (perhaps on the basis that the failure to protect is a kind of “neglect”)?9 Answers to these questions tend to vary greatly.

By its nature, child abuse is a harm that often occurs without witnesses (other than the child, who may be too young or too scared to offer helpful testimony). Often the evidence of abuse is circumstantial—the injuries suffered by the child. While abusers often explain such injuries away as the result of unfortunate accidents, doctors have developed criteria for determining what sorts of injuries are almost certainly caused by abuse, not accident—“battered child syndrome.”10

Regarding neglect law, there are two significant issues: when parental poverty should be a “defense” to charges of neglect; and what to do in cases where refusal of medical treatment is grounded on sincere religious belief. As already noted, “neglect” is usually defined in terms of a failure to provide children with a minimal level of food, clothing, shelter, medical care, and so forth. This is usually understood as some fault on the parent’s side. However, as there are now limits and conditions on the grant of state support for the poor,11 there is a real possibility that a parent’s failure to provide minimum levels may be based on short-term financial limits rather than any unwillingness or incompetence on the parent’s part.12

(p.113) B. Cultural and Religious Defenses

A different sort of question comes when the parental misbehavior is grounded on sincere religious belief. This comes up regularly for parents who refuse to give their children conventional medical care because of the parents’ beliefs (for example, Jehovah’s Witnesses or Christian Science). A number of states have express legislative exceptions holding that when refusal of medical treatment is religiously based, it will not count as “neglect.”13 (Courts in some of these same states have held that this protection is limited to neglect actions and does not extend to prosecutions which involve charging a parent with causing a child’s death through a failure to intervene medically.14)

C. Procedural Protections

Where the state is attempting to terminate a parent’s rights based on an accusation of abuse or neglect, proof must meet the heightened “clear and convincing” standard (rather than the usual standard of proof for civil cases, “preponderance of the evidence”).15 At the same time, there is no federal constitutional requirement that legal counsel be provided to parties who are facing termination of their parental rights.16

(p.114) D. Foster Care

Within family law and practice, foster care is the in-between place. Foster caregivers are nominally employees of the state, hired to care for children temporarily, subject to termination at the will (and sometimes at the whim) of the state agency in charge. Though long-term foster caregivers frequently build strong bonds with the children in their care, the caregivers generally have no legal right to continued contact with those children, unless such a right is expressly given by the state.17 Children are sent to foster care when there are doubts about their parents’ ability to care for them, but the objections are not (or not yet) strong enough to justify termination of parental rights. (Foster care is also used as a temporary home for children whose parents have had their rights terminated, but the hope is that foster care placement in that case will be short-term, while a permanent, adoptive placement is arranged.)

According to recent data,18 a little over 400,000 children are in foster care at any given date, and about 646,000 are in foster care at some point during the year. Of that number, about 104,000 are officially “waiting to be adopted,” and about 51,000 were in fact adopted during the course of the year. “In most states, a third or more of the children placed from foster care are being adopted by the individuals or couples who had served as their foster parents.”19 Federal law has attempted to speed the movement of children from (p.115) foster care to permanent adoption placements,20 but there clearly remains much work to be done.21

Suggested Further Reading

Bibliography references:

Elizabeth Bartholet, Nobody’s Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative (Boston: Beacon Press, 2000).

Sarah H. Ramsey &Douglas E. Abrams, “A Primer on Child Abuse and Neglect Law,” Juvenile and Family Court Journal, vol. 61, pp. 1–31 (2010).

U.S. Department of Health and Human Services, Child Welfare Information Gateway, Acts of Omission: An Overview of Child Neglect (2001), available at http://www.childwelfare.gov/pubs/focus/acts/. (p.116)


(1.) For example, this might come about in relation to a parent’s religiously based refusal of medical care for a child. That issue is considered, briefly, in section C, infra, and again in chapter 16, section E.

(2.) The interaction of social norms and government action in that process is well documented in Barbara Nelson, Making an Issue of Child Abuse (Chicago: University of Chicago Press, 1984). Nelson is particularly good in showing how various pressures led to a construction of the problem in terms of (medical) deviance, discounting structural or systemic explanations, and possible connections with poverty.

(3.) U.S. Department of Health and Human Services, Child Maltreatment 2008 (2010), available at http://www.acf.hhs.gov/programs/cb/pubs/cm08.

(4.) According to the same study, this was a significant decrease from a total of 903,000 in 2006.

(5.) “New Federal Report Shows Drop in Child Abuse Rates,” Associated Press, Apr. 1, 2010.

(6.) Some medical and legal authorities also refer to emotional neglect, where it is claimed that a child can suffer greatly in a household where the child is not shown even minimal levels of loving support, and can suffer severe and long-term harm from the deprivation, even in cases where the child otherwise receives adequate food, shelter, clothing, and medical care and is not the subject of physical or sexual abuse.

(7.) However, most claims that such statutes are so vague as to be unconstitutional have been rejected. See, e.g., State v. Watkins, 659 N.W.2d 526 (Iowa 2003). Such claims do occasionally succeed, though often there are additional factors, e.g., suspicion that the statute is being applied in an egregiously racist way. See, e.g., Roe v. Conn, 417 F. Supp. 769 (M.D. Ala. 1976).

(8.) See, e.g., Willis v. State, 888 N.E.2d 177 (Ind. 2008) (mother’s punishment of “five to seven swats on [an eleven-year-old son’s] buttocks, arm, and thigh” was within her parental privilege, and thus a full defense to a charge of battery on a child); DYFS v. K.A., 996 A.2d 1040 (N.J. App. Div. 2010) (mother’s striking of child several times did not constitute child abuse); Dep’t of Children v. C.H., 5 A.3d 163 (N.J. App. Div. 2010) (mother’s striking of child several times did constitute child abuse; K.A. distinguished on the basis that it was a single isolated incident, while C.H. involved a pattern of excessive corporal punishment and inflicting injuries in vulnerable areas); Simons v. State, 803 N.W.2d 587 (N.D. 2011) (father’s twenty-four swats over two hours with wooden back-scratcher on two-year-old because child would not say “sir” constituted abuse).

(9.) E.g., State v. Williquette, 385 N.W.2d 145 (Wis. 1986).

(10.) C. Henry Kempe et al., “The Battered Child Syndrome,” Journal of the American Medical Association (JAMA), vol. 181, pp. 17–24 (July 7, 1962).

(11.) Under what had been known as welfare reform—the new official title is “Temporary Assistance for Needy Families” (TANF).

(12.) See, e.g., Erica Turcios, “Remaining versus Removal: Preventing Premature Removal When Poverty Is Confused with Neglect,” Michigan Child Welfare Law Journal, vol. 12(4), pp. 20–28 (Summer 2009). As others have pointed out, there often appears, in practice, to be two different family law systems: one for the relatively rich (deferential and nonintrusive) and one for the poor (intrusive, demanding, and leading to a much higher frequency of parental rights suspensions and terminations). See Jacobus tenBroek, “California’s Dual System of Family Law: Its Origin, Development, and Present Status” (Parts I, II, & III), Stanford Law Review, vol. 16, pp. 257–317, 900–981 (1964), vol. 17, pp. 614–682 (1965); see also Marsha Garrison, “Why Terminate Parental Rights?,” Stanford Law Review, vol. 35, pp. 423–496 (1983), at p. 432 (“[t]he foster care system’s lack of concern for natural parents reflects centuries of a dual family law—one for the rich and one for the poor.”).

(13.) A related question comes when a parent applies what local social and legal norms consider to be excessive corporal punishment, but justifies the action, in the face of an abuse charge, by stating that this level of punishment is required by sincere religious belief or by the foreign culture in which the parents were raised.

(14.) E.g., Hall v. State, 493 N.E.2d 433 (Ind. 1986); Walker v. Superior Court, 763 P.2d 852 (Cal. 1988); Commonwealth v. Twitchell, 617 N.E.2d 609 (Mass. 1993).

(15.) Santosky v. Kramer, 455 U.S. 745 (1982).

(16.) Lassiter v. Department of Social Services of Durham County, N.C., 452 U.S. 18 (1981).

(17.) In Smith v. Organization of Foster Families For Equality and Reform, 431 U.S. 816 (1977), the question was officially left open, but the Supreme Court strongly hinted that foster caregivers had no constitutional liberty interests in continued contact with the children in their care. More recent federal appellate courts have come to the same conclusion.

(18.) U.S. Department of Health and Human Services, Administration for Children & Families, Children’s Bureau, Trends in Foster Care and Adoption, FY 2002–FY 2011 (2012), available at http://archive.acf.hhs.gov/programs/cb/stats_research/afcars/trends_july2012.pdf.

(19.) Joan Heifetz Hollinger &Naomi Cahn, “Forming Families by Law,” Human Rights, pp. 16–19 (Summer 2009), at p. 18.

(20.) Under the Adoption and Safe Families Act of 1997, 42 U.S.C. §§ 671(a)(15)(D), 675(5)(e), states receiving federal funds must, under most circumstances, seek the termination of parents’ rights when a child has been in nonkinship foster care for fifteen of the previous twenty-four months.

(21.) For a critique of the child welfare system and recent moves to speed adoption, arguing that both work against the interest of families and children who are poor or racial minorities, see Dorothy E. Roberts, “Poverty, Race, and New Directions in Child Welfare Policies,” Washington University Journal of Law & Policy, vol. 1, pp. 63–76 (1999).