So much has been said about the child welfare system it begs the question: what more can be done to help abused and neglected children? The research and literature about what has been the seemingly “norm” is not very impressive. Maybe social service professionals have yet to find a method that is most effective, as the system of care evolves. It seems that something must change.
- What Could Be Changed In Child Welfare That Would Even Matter?
- What Does an Adult Welfare Model Look Like?
- How Do the Five Phases of an Adult Welfare Model Interact and Work?
Notes about this presentation and literature review as of 2018:
At the time of this presentation (first completed in 2005 continuing with work and other presentations from 2003) the information included in it and its associated literature reviews were deemed accurate by its author. This information is included, as of 2018, for informational purposes only. Current trends (those occurring in 2018) in child welfare are not included in this dated presentation. The presentation is provided here as a marketing sample for professional development and onsite program implementation concepts available by the author via special arrangements. It is for training and informational purposes only.
The Florida Investigation and Prosecution of Child Abuse Cases Law:
A Proposed Change to Florida State Statute 39
This Talking Points Memo, Policy Analysis Research Proposal and Power Point Slide Show is brought to you by Kurt D. LaRose as one component in a series of professional development and onsite training presentation material provided at TalkifUwant.com and it is published here (along with other such material) for informational, marketing, educational, training, and technological display purposes. This information was originally written and published in 2004 and 2005.
The well being of children has long been a policy centerpiece for child advocates. American history reveals that the forerunners of child welfare advocated for societal changes in the name of protection, justice, and stability for parents and children. In 1889 Jane Addams was heavily caught up in the idea of keeping families intact with her active role in the development of the Hull House in Chicago (About, n.d.), created partly to provide daycare for single working mothers.
The issue of child welfare was of particular interest to Addams. She worked to bring about the Juvenile Protective Association, the juvenile psychopathic clinic (later called the Institute for Juvenile Research), and was a key player in America’s first juvenile court (About, n.d., para. 3). This pioneer was involved in a great number of firsts in her pursuit of, and passion for change. Thus, the evolutionary process of child welfare is more than a century old, and the notion of change is embedded in its very foundation.
Early in child welfare history the federal government became involved in children’s issues. Long before the term permanency planning was coined, public figures placed value on the idea of keeping families together, and asserted the importance upon giving children stable homes. In 1909, just ten years after Hull House came about, the first White House Conference on Children was convened, and the historical debate about what would be in the best interests of children began (“Social Security Administration, n.d.).
The child welfare system in America has long been criticized for failing to meet the needs of abused and neglected children (Cherlin, 1999; Epstein, 1999; Pelton, 1992; Schorr, 2000). The criticisms range from minor idiosyncratic problems to far-reaching systemic problems. The media likely provokes the most vocal critics to take anecdotal cases and argue that children are being hurt and even killed while under state care (Bridges, 2003; Krugman, 1995). Individual cases are indicative of larger problems within the system, but the laws that govern the system are problematic as well.
To make an argument that laws need to be changed can be accomplished, in part, by reviewing existing and previous laws; also the research behind national and state child welfare programs should be assessed. It is argued that a great deal of child welfare research is problematic at best, so much so that it is hard to tell for certain what works and what doesn’t work (Disko, 1998; Littell, 2001). And while acknowledging various limitations, that is not to say the research does not have value. Besides, not everything is problematic within the system of child welfare; research exists that supports the system (and the sum of its various parts) as effective (Berrick, Barth, Needell & Jonson-Reid, 1997; Forsythe, 1992; Leon, 2002; Schechter, 2000; Taussig, Clyman & Landsverk, 2001; Walton, 2001).
It is somewhere in between the two extremes, of total failure and absolute success, that the system of child welfare should be analyzed. As a result of this analysis, while mindful of both strengths and weaknesses, it argued that it is time for new laws to be enacted, and old laws to be enforced.
The profession of child welfare is huge and is consumed within a complex maze of public and private organizations, staffed by workers whose education and experience have been questioned (Schorr, 2000). The organizational expanse of child welfare brings with it intrinsic areas of concern. The size of the system alone can induce sociological problems that cause resistance to change, a common dilemma that occurs within bureaucratization (Schaefer & Lamm, 1998).
In the United States federal child welfare policy is administered by the Children’s Bureau under the guise of the Department of Health and Human Services (DHHS); in Florida, state child welfare policy is administered under the Department of Children and Families (DCF). But beyond the agency level, there is of course a larger institution that governs both agencies; it’s called the law of the land – federal and state constitutions. Federally, child welfare policy evolves from the Social Security Act of 1935 (Barusch, 2002); in Florida child welfare policy evolves from state statute 39 (Proceedings, 2004).
For fiscal year 2003 the federal government budgeted over $16 billion dollars for the states to use in family assistance programs, of which child welfare service provisions are included (“Social Security,” n.d.). In 2001 Title IV-E foster care funding was $5.63 billion for the U.S. (“Title IV-E,” n.d.). State funding is contingent upon a multitude of complex mathematical formulas and other factors. Among these factors is that state run child welfare programs must meet federal outcome measures each year in order to obtain ongoing funding (“Social Security Online” n.d.); Florida’s child welfare system initially failed in six out of seven mandated areas of performance evaluated by the federal government (DHHS, 2001, Safety, Permanency and Well-being Outcomes sections). Florida also failed in five out of the key “seven systemic factors” in the same evaluation (DHHS, 2001).
It is common for child welfare professionals to highlight the consequences of abuse that is inflicted upon children and the literature supports negative influences (Jennie & Trickett, 2003; Pimlott-Kubiak & Cortina, 2003; Staudt, 2003). The literature also supports the possibility that foster care placement (and child welfare as a whole), can have equally troubling outcomes (Cherlin, 1999). Children in foster care perform lower educationally than non-foster care youth (Blome, 1997; Finkelstein, Wamsley & Miranda, 2002); adopted children have increased behavioral, emotional, and mental health problems (Simmel, Brooks, Barth & Hinshaw, 2001); there is a high correlation between being raised in foster care and homelessness (Roman & Wolfe, 1997; Zlotnick, Robertson & Wright, 1999); the emphasis on finding placements for children detracts from being able to adequately care for them (Whittaker & Maluccio, 2002); the average stay in foster care is three years (Association, 2002) and children in care can expect to be moved as many as six times (Blome, 1997; Staff & Fein, 1995); it is not uncommon for foster children to spend time in and out of jail (Johnson-Reid & Barth, 2000); foster children often are admitted to a placement without getting needed psychotherapy (Schroeder, 1993; Staudt, 2003); there are more kids in need of adoption then then there are adoptive parents (Brooks, James & Barth, 2002); social workers fail to report abuse and children end up injured or dead (Cherlin, 1999; Loewenberg & Dolgoff, 1996 as cited in Kirst-Ashman & Hull, 2001) and very little aftercare and follow-up services are provided to youth who leave the foster care system (Reddy & Pfeiffer, 1997). This list is not exhaustive, and could be expanded almost exponentially in review of other literature. The point is, that something needs to change, and the change needs to impact each and every child while also altering the system as a whole. Legislative action could provide the solution.
Another problem with the child welfare system is that it lacks a singular monitoring and policing authority such as an ombudsman program. The data from one study reveal that 15 states have developed such mechanisms (Bearup, 1999). In other words, on a national scale, 70% of state child welfare agencies do not utilize independent ombudsman programs to ensure quality control measures. Currently, Florida utilizes a volunteer oversight group, called the Florida Statewide Advocacy Council (FSAC) to monitor, in part, child welfare services; the state of Florida does not however, have a dedicated ombudsman program designed solely for monitoring child welfare practices. Research on the effectiveness of the FSAC is sparse (“Florida,” 2003).
Foster care is one component of the child welfare system; child protective services (CPS), family preservation and support, adoption, and independent living programs are components as well. The number of children in foster care has historically vacillated. In 1961 there were 245,000 children in care, but by 1999 that number had jumped to 500,000 (Schorr, 2000). One report indicates that in 1994 nearly one million children were residing with a total of 577,000 foster families (DHHS, 1997a). The United States Department of Health and Human Services reported that in a 10-year period the number of children cared for under the foster care system jumped from 340,000 to 520,000 spanning the years from 1988 to 1998. The most recent numbers show that nationally there are over 532,000 youth in the foster care system (DHHS, 2002).
- What Could Be Changed In Child Welfare That Would Even Matter?
- What Does an Adult Welfare Model Look Like?
- How Do the Five Phases of an Adult Welfare Model Interact and Work?
In Florida the number of children in foster care nears 32,000 (DHHS, 2002). Florida’s foster care system ranks third largest in the U.S. falling behind New York (second largest), and California who is by far caring for more children than any other state (DHHS, 2002). In any given month there are 1,700 new kids placed into Florida’s child welfare system, (DHHS, 2002).
When comparing the number of children in foster care in the U.S. (DHHS, 2002) to the overall population (U.S. Census Bureau, 2000a) the ratio is .001:1; in Florida the foster care population (DHHS, 2002) compared to the state population (Census Bureau, 2000b) generates a ratio that is double the national rate at .002:1. Compared to New York, Florida’s foster care population to state population ratio is basically equivalent. California’s foster care population (DHHS, 2002) to state population (U.S. Census Bureau, 2000c) ratio is nearly three times greater than the national rate at .003:1. Admittedly these numbers, while interesting for looking at trends, are likely statistically insignificant, although statistical significance was not assessed for the purposes of this policy analysis paper.
Nationally, there were nearly 275,000 children who were removed from their homes as a result of reported abuse. In Florida, a total of 6,636 children were removed (DHHS, 2001b). In 1997 there were 42 reports of child abuse per 1,000 children in the U.S. and of the 42 reports, 14 of those cases were substantiated; that is 67.4% were not (DHHS, 1997b). By 2001 the number of unsubstantiated cases had decreased to 59.2% (DHHS, 2001a, Reports section).
On a national level, when child abuse reports are substantiated civil courts generally take action and develop a course of treatment for abused children, which can also mean parental rights may be terminated (DiNitto and McNeece, 1997). Criminal courts may or may not get involved in a child abuse case as there are no specific set of national criteria that delineates which cases are to be prosecuted and which cases are not (Stroud, Martens & Barker, 2000). The same problem exists in Florida; in substantiated cases of abuse parental rights can be terminated without criminal charges or criminal investigations (Proceedings, 2004, § 39.801-39.817).
When reports of child abuse are taken in Florida, DCF launches an investigation that can take up to 60 days to complete; if during the 60 days, abuse is substantiated a report is made to local law enforcement (Proceedings, 2004, § 39-301 (16)). Next, Florida statute indicates that law enforcement, not DCF, determines whether or not a criminal investigation is initiated (Proceedings, 2004, § 39-301(2c)). Lastly, if a criminal investigation is initiated, joint investigations between DCF and law enforcement are mandated “whenever possible” (Proceedings, 2004, § 39-301 (17)). In the simplest sense, criminal investigations (and by default criminal prosecutions) are optional, even in cases where evidence is sufficient to remove children from homes. It would appear that Florida, much like the rest of America, relies heavily on civil courts to deal with the dynamics of child abuse.
It seems that justice could best be served for abused children via criminal proceedings (as opposed to civil ones that are largely used now). “Due process” and “proof beyond a reasonable doubt” are standards within criminal proceedings that differ significantly from the “best interests of the child” and lesser “degrees of certainty” standards used in civil actions (Kirst-Ashman & Hull, 2001, pp. 430-431). In essence, abused children (who are victims of crime) do not enjoy the same legal protections as adults. The legal system “has stopped short of granting children the same constitutional guarantees as adults…children received a ‘raw deal’ in trading rights for rehabilitation” (DiNitto and McNeece, 1997, p. 237). In Florida for example, an appellate court ruling called a slap in the face to a six-year-old child “a privileged battery in the course of discipline” (Lauer, 1999, p. 1A). In response to the ruling the president of Florida’s Children, Jack Levine, was noted to wonder “why grown-ups aren’t allowed to slap one another without criminal charges filed, yet it’s OK to slap your kid” (Lauer, 1999, p. 4A)?
It would be conjecture to suppose why it is that law enforcement would decide not to investigate abuse cases that DCF has already determined warrants state intervention. One problem with allowing local law enforcement to independently determine whether or not an abuse case “warrants” (Proceedings, 2004, § 39-301(2c)) criminal investigation is that without a criminal investigation criminal charges cannot be filed and the State Attorney will not be given the chance to prosecute a crime. The other issue is that if children are removed from the home, and there are no criminal proceedings, the children (and their parents) will get secondary civil court protections (as compared to higher standards in criminal proceedings) when DCF acts.
There is evidence that the prosecution of child abuse cases is a difficult and arduous task (Davies, Glaser & Kossoff, 2000; Stroud, Martens & Barker, 2000; Zajac, Gross & Hayne, 2003), possibly explaining why many times the pursuit of criminal prosecution is avoided. There is also evidence that prosecution of child abuse cases has at least as good an outcome as the prosecution of other crimes (Cross, Whitcomb & DeVos, 1995; Cullen, Smith, Funk & Haaf, 2000; Martone, Jaudes & Cavin, 1996). In other words, convictions, confessions, sentences, pleas, and acquittals in child abuse prosecution cases correlate similarly to other criminal prosecutions.
The general public, who will be instrumental in promoting legislative changes to Florida law, fails to realize that very few child abuse cases make it into a criminal court (Cross, Whitcomb & DeVos, 1995). Cross and colleagues (1995) point out, however, of those cases that do make it to trial, the majority (as many as 94%) end with guilty pleas or convictions; a finding that has been duplicated elsewhere (see Cross, Walsh, Simone & Jones, 2003).
Interestingly, finding aggregate data on the number of child abuse cases that were/are prosecuted in the U. S. and Florida, is virtually impossible. Those numbers do not exist. According to staff attorney Danica Szarvas-Kidd, who works with the American Prosecutors Research Institute and the National Center for Prosecution of Child Abuse, the issue of quantifying child abuse prosecutions is problematic:
The problem is that child abuse cases are prosecuted under many different statutes, ranging from computer crimes to battery to sexual assault. Many crimes of child abuse fall under many different statutes, encompassing a wide variety of crimes. There is no general crime of “child abuse.” Also, there is no government agency who has the time or resources to sort through all of these cases and come up with statistics for child abuse only…there are no statistics on the prosecution of child abuse per se (Personal communication, October 15, 2004).
Even so, there is a long history of prosecuting child abuse cases in the U. S. (see Bishop, 1856 and 1865 as cited in Myers, Diedrich, Lee, McClanahan Fincher & Stern, 1999). That is to say that child protection via prosecution is not a new concept. The problem, according to Myers et al. is that tracking state prosecutions of child abuse is difficult because a central database of state cases does not exist (and state cases do not have the force of establishing legal precedence), however appellate court cases (which do establish legal precedence) are easier to track because those data are “indexed and published” (p. 208).
The Florida investigation and prosecution of child abuse case law, as it is being proposed here, is not too much to ask of a state that already does as much for all of its reports for cases of “institutional child abuse.” In institutional child abuse current Florida law mandates that the State Attorney’s Office be involved in the investigations and justify decisions to either prosecute or not prosecute via a written report (Proceedings, 2004, § 39-302).
It is noteworthy that Florida does not have the same requirement with individual cases of child abuse. Adding to the notion that a change in Florida law is reasonable, is the fact that Florida law used to mandate that the State Attorney’s Office, not local law enforcement, investigate every DCF report of child abuse, and then generate a written report that justified decisions not to prosecute (Proceedings, 2000, § 39.301(18)). It is unclear why the 2000 law changed.
In review of current Florida law, several rhetorical questions can be directed to the issue of equality. Why does the law make criminal investigations optional in individual cases of child abuse, and then make criminal investigations mandatory with institutional cases of child abuse? Does this mean that Florida believes that when parents abuse their kids they should be treated less severely (or be assessed less critically) than if state sanctioned personnel abuse kids? Why does the law voluntarily involve local law enforcement investigations in individual cases of child abuse but then make it mandatory for the State Attorney to be involved in institutional child abuse cases? Is Florida saying that some abused children should be protected more than other abused children? Why can children be removed from their parent’s custody via civil courts that have lower standards of proof, whereas higher standards exist in criminal courts that are not needed to terminate parental rights? Does this mean that Florida considers parental rights secondary to children’s rights, or vice versa? Furthermore, when adults are battered (or otherwise assaulted) the principle of due process takes precedence, yet when children are battered (or otherwise assaulted) the principle of a child’s best interests takes precedence? Does this mean that children are being denied equal protection under the law (a U.S. Constitution Fourteenth Amendment Equal Protection Clause violation)?
When looking at the history of child welfare and the repeated attempts (some successful and some not so successful) to care for abused and neglected children, the resurfacing question that should be asked is this: what one law will cause major change in the system? Arguably, the most effective way to alter Florida’s child welfare system is to pass legislation that requires DCF and the State Attorney to investigate every report of child abuse and then document the reasons for, or against prosecution. If the Department of Children and Families determines that there’s child abuse, and children are at risk of being removed from their homes, is it too much to ask for the State Attorney to help investigate the crime and then decide whether or not to prosecute it?
A commonly cited barrier to any new legislation is funding. And because funding is no small matter in legislative action, it will be addressed briefly here. Certainly, money will be an issue, however the federal government has already begun to add money into the child welfare court system (Strengthening Abuse and Neglect Courts Act of 2000; SANCA). SANCA provides up to twenty $10 million grants to be awarded to states each year. And because SANCA is already legislated, an accomplishment in its own right, what will be needed as Florida law changes, is pursuit of increased appropriations and/or re-appropriations. Interestingly, the intent of SANCA appears to be focused on funding those states that are attempting to expedite child welfare cases by resolving legal wrangling as quickly as possible. And with the proposed change in Florida law that is being made herein, it is possible that the state could become a frontrunner in getting SANCA funds.
Child abuse cases should be required to stand the test of the criminal process. Criminal investigations should become a part of the law; and the State Attorney and DCF should agree upon, and justify in written form, decisions not to prosecute suspected child abusers. In the end, more criminal investigations, charges, and court hearings can bring about change in a child welfare system that is riddled by iatrogenic effects. Under new law, fewer children will remain out of homes in cases where abuse cannot be proven; more alleged perpetrators of child abuse will be guaranteed a legal defense; more abusers will go to jail; the vast numbers of children who are unnecessarily in care will shrink and lastly, more of the children in care, will belong there.
- What Could Be Changed In Child Welfare That Would Even Matter?
- What Does an Adult Welfare Model Look Like?
- How Do the Five Phases of an Adult Welfare Model Interact and Work?
Conjoint investigations by the State Attorney’s Office and DCF, will implicitly provide for an increase in the number of cases that are prosecuted, particularly if the two agencies must document and justify every case that is not prosecuted. This is not all bad news; research that looked at child abuse prosecutions in Iowa, New York, California, and Minnesota found that whenever cases were not prosecuted the number of children placed into state custody significantly increased compared to those cases that were prosecuted (Cross, Martell, McDonald & Ahl, 1999).
Will investigations and prosecutions be a panacea for Florida’s child welfare system? Hardly. It is important to remember that what is being proposed, to change Florida law, is really a proposition that adds nothing to an already overburdened child welfare system. In fact, under this proposal, Florida’s investigation and prosecution procedures, both civil and criminal, could be streamlined. Investigations and court proceedings that are now handled by DCF, local law enforcement, civil courts, criminal courts, and prosecutors (such as the State Attorney) would be consolidated into two main stakeholders; DCF and the State Attorney. As it is now, any one or all, of the preceding stakeholders could be participating in a given child abuse case, with each party being driven by its own directives and goals.
And finally, the successful and equal treatment of children should remain a priority in the child welfare system. There are effective programs in Florida that accomplish the goal of prosecution and treatment, used in conjunction with each other in order to help families heal (“Family Courts,” 2001). And other programs exist that show promise as well, such as family drug courts (Lovato & Mack, 2003) and shared family care (Mikkelson, 2002).
Ultimately, to effect simultaneous systemic and case-by-case change in Florida’s child welfare system, the law must be changed to make investigations and prosecution mandatory. Because DCF is best suited, as the experts of child welfare, to deal with children and investigate abuse reports, and because the State Attorney’s Office is best suited, as the experts in building and prosecuting criminal cases, these two agencies have the potential to form the crucible of child welfare; quite possibly the best that Florida can get.
This Talking Points Memo, Policy Analysis Research Proposal and Power Point Slide Show is brought to you by Kurt D. LaRose as one component in a series of professional development and onsite training presentation material provided at TalkifUwant.com and it is published here (along with other such material) for informational, marketing, educational, training, and technological display purposes.
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- What Could Be Changed In Child Welfare That Would Even Matter?
- What Does an Adult Welfare Model Look Like?
- How Do the Five Phases of an Adult Welfare Model Interact and Work?
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