Recently in Daniel Pollack Category

Just published in Temple Political and Civil Rights Law Review is an article, Foster Care as a Mitigating Circumstance in Criminal Proceedings. The article addresses the question: should a history of foster care involvement serve as a legitimate mitigating circumstance for a defendant in a criminal trial?

According to the article:

The sensationalism of many criminal trials, especially those of a capital nature, often result from the aggravating circumstances impacting the victim. Conversely, the mitigating circumstances that affect the accused‘s criminality rarely grab headlines. During the sentencing phase of a criminal trial, mitigating factors may justify leniency or otherwise serve to lessen the sentence for the crime with which the accused has been charged. Whether a particular factor will be considered a mitigating one will depend upon the particular facts of the case.

The federal Sentencing Reform Act of 1984 provides guidance in this process, but each state maintains the discretion to dictate its own criteria within the confines of constitutional constructs. The United States Supreme Court has increasingly addressed the importance of clarity in the presentation and consideration of mitigating evidence, which is integral to the trial and sentencing of an accused.

Should a history of foster care involvement serve as a legitimate mitigating circumstance for a defendant in a criminal trial? Although this article does not provide a definitive answer, it does attempt to provide a better understanding of the foster care experience to those contemplating the question.

Part I provides a general introduction to the topic of foster care. Part II discusses different types of foster care. Part III discusses the impact of foster care on children. Finally, Part IV offers a brief conclusion.

For a copy contact Daniel Pollack, a Professor at Yeshiva University’s School of Social Work in New York City, and a frequent expert witness in child welfare cases. He can be contacted at dpollack@yu.edu, (212) 960-0836

The Jerry Sandusky criminal trial is over; the civil lawsuits are in active settlement mode. Undoubtedly, the entire country is more tuned into child abuse than it ever was. The National Conference of State Legislatures reports that about 105 bills on the reporting of suspected child abuse and neglect have been introduced in 2012 legislative sessions in 30 states and the District of Columbia. ¹ All of them include a penalty for failing to report suspected child abuse.

Oregon is one of the states which recently enacted child abuse reporting legislation. It added to the list of mandated reporters any employee or volunteer of organization providing child-related services or activities, any employee of a higher education institution, and any coach, assistant coach or trainer of child athlete and individual who provides guidance, instruction or training in youth development activities and youth camps.

Overlooked in the wake of this new awareness is the sad reality of false allegations of child abuse. There is no disputing that child abuse is a serious and pervasive worldwide problem. ² In most situations, abuse allegations are made responsibly, based on actual abuse. Sometimes they are not.

To address this concern, Oregon also passed legislation regarding the false reporting of child abuse. The law ³ reads:

(1) A person commits the offense of making a false report of child abuse if, with the intent to influence a custody, parenting time, visitation or child support decision, the person:

(a) Makes a false report of child abuse to the Department of Human Services or a law enforcement agency, knowing that the report is false; or

(b) With the intent that a public or private official make a report of child abuse to the Department of Human Services or a law enforcement agency, makes a false report of child abuse to the public or private official, knowing that the report is false.

(2) Making a false report of child abuse is a Class A violation.”

In fact, most states ⁴ have similar statutes. For instance, Arkansas ⁵ provides that:

“(a) A person commits the offense of making a false report under this chapter if he or she purposely makes a report containing a false allegation to the Child Abuse Hotline knowing the allegation to be false.

(b) (1) A first offense of making a false report under this chapter is a Class A misdemeanor. (2) A subsequent offense of making a false report under this chapter is a Class D felony.”

Colorado ⁶ provides that “No person … shall knowingly make a false report of abuse or neglect to a county department or local law enforcement agency. Any person who willfully violates the provisions …commits a class 3 misdemeanor and shall be punished … [and] shall be liable for damages proximately caused thereby.”

The repercussions of false abuse allegations are traumatizing and stigmatizing to the child allegedly abused. The child may have to undergo unnecessary psychological and medical examinations. And commonly, rifts between the child and his or her parents and siblings may develop. In the divorce and custody context, an accusation of child abuse may begin in family court, but it can quickly wind up in civil, criminal, and juvenile courts.

When child abuse allegations are true, CPS must do everything possible to protect the child. When false accusations are made, the accused individual's morally upright reputation can be permanently damaged. CPS workers know that abuse allegations are difficult to prove. Learning to decipher false allegations from real ones is a demanding and perpetual challenge. In either case, they can lead to protracted and difficult legal battles.

1 http://www.ncsl.org/issues-research/human-services/2012-child-abuse-mandatory-reporting-bills.aspx

2 See e.g. Lalor, K. & McElvaney, R. (2010). Child sexual abuse, links to later sexual exploitation/high risk sexual behavior and prevention/treatment programmes. Trauma, Violence and Abuse, (11), 159-177.

3 ORS 419B.016.

4 AR, CA, CO, CT, DE, DC, FL, GA, HI, ID, IL, IN, IA, KS, KY, LA, ME, MA, MI, MN, MO, MT, NE, NY, ND, OH, OK, OR, PA, RI, SC, TN, TX, VI, WA, WY. A summary of state laws regarding penalties for the failure to report and false reporting of child abuse, written by the Child Welfare Information Gateway, is available at https://www.childwelfare.gov/systemwide/laws_policies/statutes/report.cfm.

5 Title 12, Subtitle 2, Chapter 18, Subchapter 2, § 12-18-203.

6 CRS Title 19, Article 3, Part 3, § 19-3-304.

Daniel Pollack is a professor at Yeshiva University’s School of Social Work in New York City and a frequent expert witness in child welfare cases. He can be reached at dpollack@yu.edu. This article originally appeared in Policy & Practice, 71(1), 30 (2013).

Caring for a foster child, especially in a therapeutic setting, is a full-time undertaking. Because it can have severe emotional repercussions on the family, respite care by another trained foster parent or other professional is frequently made available.

Respite care is an intervention that may reduce the risk of abuse or neglect to the foster child (Goldman, Salus, Wolcott, & Kennedy, 2003) while it simultaneously offers welcome benefits to the caregiver (MacDonald & Callery, 2004). Indeed, one study (Chan & Sigafoos, 2001) found that the more frequently families made use of respite care, the lower their scores were of perceived family conflict.

Not only does respite care provide a break for foster parents, it also may provide a challenging opportunity for foster children to have an added degree of independence and allow them to experience relationships with people outside their customary environment. Alternatively, there may be an advantage to have the respite care professional come to the foster children’s home so that the foster children can stay in familiar surroundings. In either case, respite care may not just be welcome, it may be clinically indicated as well.

For these reasons, there is a consensus among professionals and researchers that providing respite care is a national concern^* and a significant recruitment and retention tool for foster parents (Corkin et al., 2006).

States allow respite care to take a number of forms: informal help from family, friends, and neighbors, or formal respite care in or out of the user’s home. There is not a single blueprint for providing, administering, or funding respite care.

Many states allow respite care to be used on a regular basis. Nebraska emphasizes that it is helpful “especially in cases where the child's needs are high or foster parents have several children. Respite can be provided by a family member of the foster parent or by a provider” (Nebraska Health and Human Services Manual § 7-001.10). Nonetheless, some states require that child care providers used for children who are wards of the state must be licensed or approved by the department, and Central Register and law enforcement checks must be done on all respite providers (e.g. Nebraska Health and Human Services Manual § 7-001.10).

Some states (e.g., Wisconsin (DCF 56.21) and Vermont (He-C 6355.19)) mandate that formal respite care providers be held to a similar standard as foster parents, with safety being the key issue. In Kentucky (922 KAR 1:310.Section 6(7)(j)1), the administrative regulations require that the child-placing agency identify and make available necessary supports to a foster home, including a plan for respite care.

Often overlooked may be issues of information sharing and confidentiality. Prior to a child being placed in a respite care setting, especially an extended one, to what extent must information be shared between the child placing agency and the respite care provider, as well as between the foster parents and the respite care providers?

Ultimately, from a legal, policy, and practice perspective, respite care may be second best, but it should never be second rate.

*See Public Law 96-272, the federal “Adoption Assistance and Child Welfare Act of 1980” as amended by Public Law 105-89, the Adoption and Safe Families Act of 1997, and the Indian Child Welfare Act, 25 U.S.C. Sections 1901-1963. Section 1915(c) (42 U.S.C.S. § 1396n(c)) of the Social Security Act permits states to include in their Medicaid plans non-medical services, such as case management, habilitation services, and respite care. § 1396n(c)(4)(B).

Endnotes

Chan, J. B., & Sigafoos, J. (2001). Does respite care reduce parental stress in families with developmentally disabled children? Child & Youth Care Forum, 30(5), 253-263.

Corkin, D., Price, J., & Gillespie, E. (2006). Respite care for children, young people and families: Are their needs addressed? International Journal of Palliative Nursing 12(9), 422-427.

Goldman, J. Salus, M.K., & Wolcott, D. & Kennedy, K. Y. (2003). A Coordinated Response to Child Abuse and Neglect: The Foundation for Practice. Office on Child Abuse and Neglect (HHS), Washington, DC. Available here. (Site last visited 11-28-11)

MacDonald, H., & Callery, P. (2004). Different meanings of respite: A study of parents, nurses and social workers caring for children with complex needs. Child: Care, Health & Development, 30, 279-288.

Daniel Pollack is Professor at Yeshiva University’s School of Social Work in New York City, and a frequent expert witness in child welfare cases. He can be contacted at dpollack@yu.edu, (212) 960-0836. This article originally appeared in Policy & Practice, 70(6), 31.

Following a child abuse/neglect investigation, a child protective services (CPS) investigator, usually in consultation with his or her supervisor, determines if the report should be substantiated or unsubstantiated. If the report is substantiated it means that the information gathered supports a finding of child abuse or neglect. If the report is unsubstantiated it means that the information gathered does not support a finding of child abuse or neglect.

Each state has its own unique scheme governing the practical application of the term “unsubstantiated” or other similar term. The resultant legal sufficiency of this term is extraordinarily complex. An unsubstantiated finding does not necessarily mean abuse or neglect did not take place; it just means there were insufficient or inadequate facts to rule the allegation as "substantiated." Indeed, “many of the children in unsubstantiated cases are eventually the subjects of subsequent CPS referrals” (Child Welfare Information Gateway, Children’s Bureau/ACYF, 2003, p. 1).[See Reducing Re-referral in Unsubstantiated Child Protective Services Cases at http://www.childwelfare.gov/pubs/focus/researchtopractice/researchtopractice.pdf]

From a policy and legal perspective, what are the implications of multiple, consecutive "unsubstantiated" findings, especially when the reports precipitating the findings are from different sources? How do we weigh the credibility of those sources? If the allegations involve abuse in foster care, day care, or a residential treatment facility, at what point should children no longer be placed in that home or facility despite no concrete finding of substantiated maltreatment?

Let’s take a brief look at two states’ definitional schemes. Kentucky (922 KAR 1:330, Section 1(9) & (11)) defines "substantiated" as: (a) An admission of abuse, neglect, or dependency by the person responsible; (b) A judicial finding of child abuse, neglect, or dependency; or (c) A preponderance of evidence exists that abuse, neglect, or dependency was committed by the person alleged to be responsible. "Unsubstantiated" means there is insufficient evidence, indicators, or justification present for substantiation of abuse, neglect, or dependency.

In contrast, Maine (10-148, Chapter 201, V. G., L. & O.) holds that “substantiated” means an administrative determination made by the Department of Health and Human Services that an individual or legal entity was the person responsible for a child who was subject to “abuse or neglect” where either (1) the abuse or neglect was of high severity or (2) the individual or legal entity poses a threat of harm to children for whom the individual or legal entity may become responsible through employment or volunteer activities.

“Indicated” means an administrative determination made by the Department that an individual or legal entity was a person responsible for a child who was subject to “abuse or neglect,” that the abuse or neglect was of low to moderate severity, and that the individual or legal entity poses no threat of harm to children for whom the person might be responsible through employment or volunteer activities. “Unsubstantiated” means an administrative determination made by the Department that a child was not subject to “abuse or neglect.”

Note that Maine’s definition of “unsubstantiated” implies that no abuse took place. Kentucky’s definition of “unsubstantiated” is less definitive; there is simply insufficient evidence, indicators, or justification for substantiation. Converting these definitions to a mathematical metaphor, should Maine place a value of zero on cases which are unsubstantiated? What number should be used for Kentucky? Common sense forces us to conclude that multiple reports of alleged maltreatment, even though all unsubstantiated, indicate that where there's smoke there may be fire.

Whatever the exact definition of “unsubstantiated,” departments should strongly consider undertaking a rigorous performance audit of each case in which multiple unsubstantiated allegations are made. The purpose would be to establish whether supervisors and administrators are sufficiently satisfied that the case information is thorough and the previous findings are accurate and reliable. Multiple allegations of abuse/neglect are not merely a series of isolated incidents; they must be seen cumulatively, possibly portraying a history of harm.

Daniel Pollack is professor at Yeshiva University’s School of Social Work in New York City, and a frequent expert witness in child welfare cases. He can be reached at dpollack@yu.edu. This article originally appeared in Policy & Practice, 70(4), 36.

A recent study identifies the nation's most dangerous traffic intersection. It’s at Flamingo Road and Pines Boulevard in Pembroke Pines, Florida. The insurance company’s engineer who compiled the report notes that the intersection meets appropriate design standards and is regulated by traffic lights. He said traffic volume and driver error were two important factors in the high number of crashes.

One of the most dangerous intersections of every state’s child welfare system is the decision whether to remove or leave non-abused siblings in a home in which another sibling has been abused or neglected. Like the dangerous intersection in Pembroke Pines, CPS workers often face high caseloads (“traffic volume”) and constant life-threatening decisions (the possibility of “driver error”).

A Pennsylvania case¹ involved “an appeal from the determination of dependency where the adoptive father sexually abused one of the children. The trial court removed the victim child from the home, placed her into foster care while allowing the non-abused child to remain under court ordered protective supervision in the parents’ home.”

The Pennsylvania court wrestled with this knotty issue: “When a finding is made that a child is well cared for, safe in his parents' home, and has neither been physically or sexually abused, can the child be found dependent because a sibling has been abused or neglected?”

Because another child of the parent “had been the victim of physical abuse resulting in serious bodily injury, sexual violence or aggravated physical neglect by the parent” the court determined that there were sufficient “aggravating circumstances” as defined by Pennsylvania statute and ASFA² to designate the non-abused child as dependent.

Yet, as Bean (2009) notes, the vagueness of the “aggravated circumstances” exception “invites inconsistent and thus unpredictable decisions about when a state should expend efforts to reunite a child with his or her parent.”³

The court went on to eloquently frame the challenging legal landscape: “The trial court had the unenviable responsibility of evaluating the testimony of parents, children, expert witnesses, CYS officials and other interested parties. The factual determinations had to be melded with intricate legal concepts, which balance the rights of the parents to care for and control their children while protecting the welfare and safekeeping of the children to assure them a wholesome and adequate life.”

Accordingly, even if CPS finds safety concerns it may still determine that it is safe to leave an at-risk child or his or her siblings in the home. In that event, a safety plan is created by ensuring that needed support is organized or provided to help preserve and stabilize the family.

It is axiomatic that trauma to one child reverberates throughout the family, disrupting its balance and creating potential dire consequences for the non-abused siblings (Hill, 2003).⁴

For this reason, as Hollingsworth, Glass and Heisler (2007) write, “It is imperative during an investigation of abuse in which a targeted child has endured physical abuse, neglect, or bizarre discipline that the siblings also be evaluated”(pp. 84-85).⁵

Just as we rigorously evaluate dangerous traffic intersections to minimize future accidents, so too, additional research is needed to determine when it is safe to leave seemingly non-abused children in a home where substantiated abuse or neglect has recently taken place.⁶

1 In the Interest of: S.B., Appeal of: F.B. and A.M.B., and In the Interest of: E.B., Appeal of F.B. and A.M.B., 833 A.2d 1116, 286 PA Super 2003 (August 6, 2003)

2 Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (codified at 42 U.S.C. § 671 et seq. (2000)). See also the Family Preservation and Support Services Act of 1993. Pub L 103-66. Stat 107.312.

3 http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=kathleen_bean

4 Hill, A. (2003). Issues facing brothers of sexually abused children: Implications for professional practice. Child & Family Social Work 8(4), 281-290.

5 Hollingsworth, J., Glass, J., & Heisler, K. (2007), Empathy deficits in siblings of severely scapegoated children: A conceptual model. Journal of Emotional Abuse, 7(4), 69-88.

6 Tavkar, P., & Hansen, D. (2011). Interventions for families victimized by child sexual abuse: Clinical issues and approaches for child advocacy center-based services. Aggression and Violent Behavior, 16(3), 188-199. Also see Baker, J., Tanis, H., & Rice, J. (2001). Including siblings in the treatment of child sexual abuse. Journal of Child Sexual Abuse, 10, 1-16.

Daniel Pollack is a professor at Yeshiva University’s School of Social Work in New York City and a frequent expert witness in child welfare cases. He can be reached at dpollack@yu.edu. This article was originally published in Policy & Practice, 70(3), 42, 44.

The lack of a clear legal “standard of care” for the evaluation and screening of prospective adoptive, foster, and kinship applicants directly undermines the child placement process, the physical and emotional development of children placed in adoptive and foster homes, and the adjudication of legal issues arising when children are harmed.

Often, it is only when a lawsuit is filed that society is forced to take a hard look at its legal expectations, and it is then compelled to acknowledge that there may be a very real distinction between child welfare’s “best practice” standard and the legal standard of care.

So begins an article by Professor Dan Pollack writing in the Capital University Law Review.

Anyone wishing a copy of this thought-provoking and engaging law review article can contact Professor Pollack directly at dpollack@yu.edu.