Wednesday, May 29, 2013

Why Judicial Officers must Understand the Elements of Child Abuse

Despite 40 years of funding for Child Protective Services there appears to be no abatement in the abuse and neglect of children. Beyond the preventative measures come the interventions which can ultimately lead to the termination of parental rights following a hearing before a judge. Most don't make it to that level though. However, judicial officers are still involved along the way in the vast majority of cases and they need to be cognizant of the signs and elements of abuse if they are going to make placement decisions that protect children. In a case where the parents are separated or divorced then consideration of placement with the other parent must be made pursuant to IC 31-34-4-2.

An ongoing case involving the physical and emotional abuse of a child in Marshal County is illustrative of why it is important for our judicial officers to be trained in recognizing the harm of abuse and what constitutes abuse – which is still a hotly contested topic. In this case the child has alleged abuse against him from age four to seven years.

According to court documents the child's father, Christopher Warren, admits “that he struck the child in the mouth for lying” and that he lost his temper again and hit the child. A 2010 DCS petition to declare the child a CHiNS alleges that the boy then "stated that his father had given him the marks that morning and told him not to tell anyone." The boy said "his father hit him 5 times in the head” according to the document. In late 2011 DCS again removed the child and pushed for him to be declared a CHiNS but Judge Curtis Palmer refused. Instead, Judge Palmer cited in his denial of the petition that it alleged “that the father has inflicted minor injuries”, "[n]o medical attention was necessary”, and that "[t]he only evidence that the father caused the injuries comes from statements the four-year-old child made to others."

Those findings are clearly intended to obfuscate the harm being inflicted upon the child and the father's culpability. First and foremost is that the child is in the care and custody of his father. The boy's mother, Amber McNeal, has previously been adjudged unfit as a parent. Thus, whatever happens to the boy is the responsibility of the father. While not intended as subject matter for this posting there may be disparate treatment here of parents based upon gender. I have written about the maternal preference and mothers being held to a higher standard in custody cases. In this case the distinction between harms caused by the father is incidental – being either neglect or an affirmative act bordering on criminal conduct. As to the injuries these are not “minor” except when strictly limited in scope to the physical impact upon the boy's body. The serious injuries to this child are to his emotional well-being and his character and consciousness which are forming at this age. This boy lives in a chaotic word where he is not having appropriate parenting, conflict resolution or discipline techniques modeled to him.

He likely lacks a sense of security in a family structure or safety within the home. In short, the father has inflicted an ongoing psychological trauma against his son. Already the boy has allegedly stated two years ago "I just want to kill myself." Words like this should not come from a child just entering elementary school or at any other time for that matter. Clearly a judicial officer aware of such anxiety in a young boy should not maintain the status quo of the circumstances where such trauma is inflicted.

I recently began working on an appeal of a ruling by Judge Palmer in which a child who had been alleged to have been sexually abused by her father was ordered to be returned to him although CPS and the child's therapist believed her allegations. I recently wrote about reporting inconsistencies of children disclosing sexual abuse
“Few make an outright spontaneous report of all the details. This is why it may take multiple attempts and result in conflicts in the reporting. The adult receiving the report must be appropriately responsive to the child's reporting methodology or the child will regress in the reporting process. It is this type of sporadic rather than chronological reporting that results in some untrained judges failing to acknowledge or confirm the abuse. The consequences can be that a child is placed with an abuser because the practitioners and judge thought it was a custody ploy.”

Determining the veracity of an abuse allegation is a substantial burden for a judicial officer. The placement of the child which can be in a protective environment or back with the person who has inflicted the harm and may retaliate is the onus undertaken by someone who may have no more training in the abuse spectrum than a law degree. Children have different methods by which they disclose abuse. Those who forensically examine these disclosures must be attuned to the child's temperament, the psychological impact that the alleged abuse would have been likely to produce and an understanding of typical disclosure inconsistencies. It is for these reasons that judges must avail themselves of forensic training or the opinions of us experts in this field before undertaking the onus of determining the probability that abuse occurred and where the child would be most protected from further acts of abuse.

I am not one who is eager to have the government invade the sanctity of the home and dictate discipline and punishment techniques. When a child has been reduced to nothing more than a punching bag for an incompetent and unloving parent, as in this case, then there is a clear need for the child to be protected. In this case the boy has two parents who do not care about his welfare over their own desires and needs the intervention of the state to protect him.

Unfortunately the lack of understanding on the part of Judge Palmer of what constitutes abuse and neglect has left a child in harm's way. While the physical wounds which Palmer refers to as “minor” will readily heal while the child is properly nourished the psychological scars will run much deeper and greater in duration. It will take the assistance of many people to mitigate this damage and give this boy the zest for life that most hold and forever let the days be in the past in which he says "I just want to kill myself."

Virginia Black of the South Bend Tribune has written more about this boy. where much of my information about this case was obtained.

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