Failure to Protect: Should victims of domestic violence face child abuse charges?

Photo: File/Thinkstock
Photo: File/Thinkstock

On a late spring afternoon last year, Andrea* drove herself and her three children directly from her ex-husband’s home to the local police station, seeking protection for herself. She was shocked by what followed: a petition from the county that challenged her fitness as a parent on the grounds that she failed to protect them from an abuser.

Andrea and her husband had recently separated, but they had been “getting along well in terms of communicating regarding the children,” according to court documents. The children — Jonathan, 13, Richard, 7 and Savannah, 5— primarily lived with their mother and visited their father on the weekends.

Though she hadn’t previously reported it, there had been an incident between Andrea and her husband in the past — he hit her when they were arguing — but that was five years earlier, and Andrea didn’t suspect anything was wrong on this day.

Eight months into their separation, she picked up her children after a party  they’d attended with their father, and gave him a ride home, too. It was a ten-minute drive, and he soon began harassing her and calling her derogatory names. When they arrived at his home, he walked around to the trunk of the car and began throwing Andrea’s things into the street. When she threatened to call the police, he broke her phone and hit her face — first with an open hand, and then a closed fist.

At the police station, Andrea and the children were interviewed. She left with an emergency restraining order against the father.

One week later, the Los Angeles County Department of Children and Family Services filed a welfare petition on behalf of the children, alleging they were in danger and both parents were responsible — the father for his violent conduct, and the mother for her failure to protect them from his violence.

Under California state law, children can become dependents of the court if there is substantial risk that they will suffer physical, sexual or emotional abuse. This section of the welfare and institutions code also provides jurisdiction over parents who failed or were unable to “adequately supervise or protect the child” from the risk of such harm. Suspected child neglect is often the underlying cause warranting a charge of “failure to protect.”

But in cases involving domestic violence, the application of these guidelines becomes far murkier.

Across California, service providers working with victims of domestic violence say it’s commonplace for clients to be charged with “failure to protect” their children from exposure to their abuser’s violence. The charge can arise from incidents ranging from children witnessing a verbally violent argument to suffering physical harm in the course of the partner-battering.

In these cases, the children are not always removed from home. Depending on the severity of the incidents, however, the charge can result in one or both parents temporarily losing custody — for months, or sometimes years — or permanent adoption.

A difficult dilemma

In California, an estimated 40 percent of women will experience intimate partner violence in their lifetimes, and three-quarters of victims had children under age 18 at home, according to the 2006 California Women’s Health Survey.

Decades of research has documented the risks to children living in homes with domestic violence — one review of the research found as many as 60 percent of domestic violence cases also involve child abuse, according to a 1999 report published in the journal Violence Against Women. The Centers for Disease and Control and Prevention has identified family disorganization, dissolution, and violence — including intimate partner violence — as significant risk factors for perpetrating child abuse.

The consequences of domestic violence, even when the children are not directly targeted, were also enumerated in the CDC’s landmark Adverse Childhood Experiences study; researchers linked witnessing domestic violence in childhood with the risk of numerous adverse health outcomes and behaviors in adulthood, including various illnesses and diseases, substance abuse, early death and perpetrating intimate partner violence.

At the same time, other research has shown that a strong relationship with a caring adult — most often, a parent — to be a key contributor to child’s resiliency following exposure to violence, according to a study published in the Futures of Children, a Princeton University/Brookings Institution journal.

The dilemma for child welfare workers comes in weighing the competing traumas facing children from homes with domestic violence — often times they must ultimately decide which is more harmful: the trauma of witnessing violence against a parent or the trauma of being removed from home.

Striking that balance is key, says Emily Austin, director of policy and evaluation at Peace Over Violence, a domestic and sexual violence advocacy organization based in Los Angeles.

“We know that domestic violence has lifetime impacts of children,” Austin said. “But is there a better way for us to work together to heal family, to heal and support children, other than charging their one bastion of safety with failure to protect?”

The chilling effect

Domestic violence advocates say that the dilemma — and at times, confusion — about when to remove a child has created another disturbing problem: A chilling effect on reporting violence in the first place, for victim’s fear of being targeted in an investigation and losing their children in the process.

Gail Pincus, executive director of the Domestic Abuse Center in Van Nuys, says that many victims she’s worked with have regretted their decisions to report domestic abuse.

“In a way, that’s a shame. Instead of thinking of DCFS as helpful, the immediate reaction is that ‘they’re going to blame me and take away my kids,’” Pincus said. “And they are being blamed; they’re being held responsible for stopping his violence.”

Beverly Upton, executive director of the San Francisco Domestic Violence Consortium, said the fear of child protective services is rampant among her constituency, and it’s resulting in abusers going free.

“That’s a public safety issue that puts the whole community at risk. It puts the children at tremendous risk, it puts the victim — who’s already been battered, chances are — in a lot of risk,” Upton said. “It’s just layer after layer that really feeds right into a lack of public safety and confidence.”

A life in the balance

Yet the consequences of making the wrong call can be grave, says Mary Nichols, an administrator at Los Angeles County’s Department of Children and Family Services (DCFS) — the county’s child protective services agency.

“If a child dies in the home because there was a batterer who was so dangerous that the victim-partner couldn’t protect because he was so dangerous….we’re still liable to make sure that the child stays safe,” Nichols said. “And that’s a very hard call for us.”

Nichols says that most of the time, cases don’t end in fatalities. “But in order to feel that you have a handle of making sure that won’t be happening, it takes a lot to assess and sift through what you really think the dangers are,” Nichols said. “That’s where we find the biggest difficulties – especially with domestic violence because it’s so complicated in the differences and the ways the dynamics can play out.”

In order to assess the prevalence of “failure to protect” charges against domestic violence victims, The California Partnership to End Domestic Violence is working with the California Department of Social Services to examine data from the child welfare systems and the dependency courts that adjudicate their findings.

There are no statewide statues defining the application of “failure to protect” in instances involving domestic violence; the term “domestic violence” does not appear in welfare and institutions code section covering child abuse.

As enforcers of the child welfare laws, it is up to each county to establish its own CPS agencies and make determinations about the proper use of “failure to protect.”

Michael Weston, a spokesperson for the Department of Social Services — the oversight agency for child welfare services in the state — said that when social workers investigate potential child abuse, they take a comprehensive look at all the factors at play in a household, with the child’s wellbeing at the forefront of the risk assessment.

“We know that exposure to violence is a significant risk factor for children, so that’s taken into account,” he said.

Weston said that social workers don’t take a “blanket” approach to cases involving domestic violence. “It’s typically not one single factor,” he said. “Each case is looked at independently based on what the social worker sees.”

“If you look up California Welfare and Institutions Code 300 and just read the definitions of ‘failure to protect,’ you can see how broad they are,” Nichols said. “If the laws are too general, and somebody would like to craft legislation to make it more workable, in terms of protections for domestic violence [victims], that would be great. It’s a pretty raw tool that we have.”

Unintended consequences

Two months after the petition was filed against her, Andrea and her ex-husband appeared as defendants in juvenile dependency court, the system that adjudicates child abuse claims and determines custody orders. Her ex-husband pled no contest. But Andrea challenged the charge; her lawyer argued that she could not have predicted his behavior and that her name should be stricken from the petition.

The court sustained the petition. The children were able to stay with their mother, but Andrea’s name would be listed in the California Abuse Central Index — a mark against her that would be considered not only by the court if she were to be party to any future child custody proceedings, but also by potential employers for certain jobs.

Dependency court judges make decisions based on a “preponderance of evidence” standard — the legal requirement that 51 percent of the evidence supports a claim.

“Failure to protect” is a child abuse charge, but it’s not a crime. As such, the legal burden of proof differs from that required for criminal proceedings.

“Whereas to put you in jail for a little misdemeanor, the police have to prove ‘beyond a reasonable doubt,’” said Marie De Santis, director of the Women’s Justice Center in Sonoma County. De Santis says that for many of her clients, the possibility of losing custody of their children is a worse punishment than any criminal sentence.

“Most mothers would much prefer to go to jail for a few months than to lose their child to CPS,” De Santis said. “The leverage they have is a lot stronger than a few months in jail — and remember, she hasn’t done anything criminally wrong.”

Even if the non-abusive parent never loses custody of their children, other advocates say the stigma alone can be detrimental.

The accusation of “failure to protect” often resonates with an all-too familiar dynamic for many trying to escape domestic violence, said Lucie Hollingsworth, a staff attorney at the YWCA of Glendale, a domestic violence service provider and shelter.

“They’ve already been with an abuser that has made them think ‘I abuse you because of how you behave,’” Hollingsworth said. “And so child protective services, they can be perceived by the non-abusive parents as just taking the place of the abuser.”

“It’s really important for our clients to have self-determination—something that they may have never had before, at least not while they were with their abuser—to start making choices for themselves and their children,” Hollingsworth said. “But this is one area where they aren’t given a choice at all.”

Inevitable quandary

For two years, the California Leadership Group on Domestic Violence and Child Well-being convened domestic violence advocates, child welfare specialists, and juvenile court officials to address the problems. In 2010, the group published recommendations to better balance family preservation with child and victim safety, largely building off a 1999 report from the National Council of Juvenile and Family Court Judges. Both reports recommended keeping children in the care of the non-offending parent whenever possible, and that violence prevention efforts should be prioritized. They also recommended better collaboration, communication and cross-training between domestic violence advocates and child protective services agencies to improve screening and assessment protocols.

Los Angeles County, according to representatives from its Department of Children and Family Services, is working to implement some changes.

The department is in the process of expanding its training for new social workers to better identify the nuances of domestic violence in their assessments of the danger to children. Previously, the training had lasted three hours — it now spans two days. DCFS is currently working to craft a third day of training, which will be based on real-life case studies and presented in collaboration with local domestic violence organizations.

The department has also contributed to the development a countywide interagency protocol on how to intervene in child welfare cases involving domestic violence, as mandated by 2002 state law. The protocol has not yet been implemented.

“It’s a very complicated system and that’s why we’re trying to work hard to do it a little differently in LA County,” said Nichols of DCFS.

Another key change has been improved communication and understanding between child welfare and domestic violence agencies —as a two-way exchange.

“I think what’s difficult for domestic violence agencies to understand is that we’re a governmental agency, and what we do is legal and related to laws and statutes,” Nichols said. “In order to get some things to change, it’s not just our will; somebody would have to initiate this as a legislative change. And if they’ve got the person in power to do it, then great.”

Of the estimated 150,000 child abuse investigations DCFS conducts every year, the department estimates about 6,000 result in the child being removed from the home.

In the instances that the child is removed, DCFS officials say that reunification is still the goal. In fact, federal law mandates it.

Still, Nichols knows that the there will always be challenges inherent to ensuring the safety of children in homes with domestic violence. Naturally, she said, nobody wants to have CPS on the doorstep.

“Having anybody knock on the door with a badge that has the ability to assess that you are not a sufficiently protective parent is very terrifying,” Nichols said. “Parents who are victim-parents are more afraid of us coming to assess them, and sometimes that makes them very frightened of providing us with information — even exculpatory information — about how they’re able to protect their kids.”

It’s a quandary that may be inevitable in these circumstances, she said.

*Last name withheld for privacy

 

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