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 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.
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 childprotection 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:
- 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.
- 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.
- 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.
- 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.
- 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.