ABFP X: Child Abuse and Neglect

Facts: Neglect proceedings were brought in Family Court to terminate petitioners' rights as natural parents in their three children. The Family Court weighed the evidence under that standard and found permanent neglect. After a subsequent dispositional hearing, the Family Court ruled that the best interests of the children required permanent termination of petitioners' custody.

Opinions: · Parents are entitled to Due Process in parental rights termination cases. - The fundamental liberty interest of natural parents in the care custody, and management of their child is protected by the Fourteenth Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. A parental rights termination proceeding interferes with that fundamental liberty interest. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. · Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.

In 1984, four-year-old Joshua DeShaney became comatose and then profoundly retarded due to traumatic head injuries inflicted by his father who physically beat him over a long period of time. The Winnebago County Department of Social Services took various steps to protect the child after receiving numerous complaints of the abuse; however, the Department did not act to remove Joshua from his father's custody. Joshua DeShaney's mother subsequently sued the Winnebago County Department of Social Services, alleging that the Department had deprived the child of his "liberty interest in bodily integrity, in violation of his rights under the substantive component of the Fourteenth Amendment's Due Process Clause, by failing to intervene to protect him against his father's violence."

• Opinion:
• The Due Process Clause does not impose a special duty on the State to provide services to the public for protection against private actors if the State did not create those harms. "The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security; while it forbids the State itself to deprive individuals of life, liberty, and property without due process of law, its language cannot fairly be read to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means."

Facts: After a jury was sworn at respondent's Kentucky trial for committing sodomy with two minor girls, but before the presentation of evidence, the court conducted an in-chambers hearing to determine the girls' competency to testify. Respondent, but not his counsel, was excluded from this hearing. The judge ruled that both girls were competent to testify. After the girls' testimony was complete, respondent's counsel did not request that the court reconsider its competency rulings. Respondent was convicted, but the Kentucky Supreme Court reversed, holding that respondent's exclusion from the competency hearing violated his right to confront the witnesses against him.

Opinion: Respondent's rights under the Confrontation Clause of the Sixth Amendment & his 14th Amendment Due Process rights were not violated by his exclusion from the competency hearing.

• - Limit the defendant’s confrontation of the child
• - Applied in relatively few cases across jurisdictions
• - USSC says must be a compelling state interest in limiting right to confront one’s accuser – emphasized need for a case-by-case determination
• - Maryland v. Craig, 497 U.S. 836 (1990) : Trial court must make 3 findings to establish that testimony outside the defendant’s presence is necessary:
• 1) It will protect the welfare of the child
• 2) Child witness would be traumatized by the defendant’s presence
• 3) The emotional distress suffered by the child witness is more than just nervousness or reluctance to testify

• - Such findings can be made based on expert testimony
• - There is little research on the effectiveness of special procedures
• - Experts should avoid the ultimate issue of whether certain procedures are necessary & explain level of uncertainty in research in this regard
• - Special hearsay exceptions may apply; e.g. The “medical diagnosis and treatment” exception
• - If statements are made in the course of a medical exam unrelated to a legal proceeding, they are admissible in many states
• - But pretty much only if made for the purpose of treatment planning
• - Clinicians may be asked to determine the trustworthiness of children’s nontestimonial hearsay statements; however, it is not self-evident that the historic assumptions about the circumstances of trustworthiness apply to children and research on such points is essentially nonexistent
• Ø There is no foundation in psychological research for the ultimate conclusion about whether a child’s statement is trustworthy

• 2) They can distinguish reality from fantasy
• 3) They understand the obligation to tell the truth

• Ø Courts and commentators are virtually unanimous that such opinions usurp the role of the trier of fact and should not be admitted
• Ø Because testimony as an expert involves an implicit representation that the opinions presented are grounded in specialized knowledge, a mental health professional should decline on ethical grounds to offer an opinion about whether a child told the truth or has been abused

State v. Milbrant, 756 P.2d 620 (Oregon, 1988)

“We have said before, and we will say it again, but this time with emphasis – we really mean it – no psychotherapist may render an opinion on whether a witness is credible in any trial conducted in this state.”

• Ø Only acceptable if such an opinion is grounded in hard data and carefully presented so as to avoid violating professional ethics
• Ø Nonetheless, still likely to be prejudicial and misleading

• - Base rate problem
• - No specific behavioral syndromes characterize victims of sexual abuse
• - Many kids show no sxs at all
• - The probability is that kids who show behavior thought to be indicative of sexual abuse have not been abused
• - Also can’t assume that child without obvious emotional distress lacks credibility

• Ø You are ethically obligated to indicate the limitations of the literature in this domain & the overlap among populations
• Ø To prevent misuse of the evidence, you should also make clear to the factfinder the difficulties in drawing inferences about individual events on the basis of group data

• - The scientific basis for the battering-parent syndrome is very weak
• - A description of the general characteristics of many abusive adults is only tangentially relevant to the question of whether a particular defendant abused a child

State v. Loebach, 310 N.W.2d 58 (Minn. 1981)

Minn. Supreme Ct. ruled that doctor’s testimony about the characteristics of battering parents should have been excluded “until further evidence of the scientific accuracy and reliability of syndrome or profile diagnoses can be established”

• - Federal law requires a postdispositional review of the child and parents at least semiannually if a child is placed in out-of-home care
• - Such reviews typically include an inquiry about whether the state has made reasonable efforts “to prevent or eliminate the need for removal of the child from his home, and [when placement occurs] to make it possible for the child to return to his home.”
• - Mental health professionals are most helpful to the court and other decisionmakers by conducting and reporting clinical assessments focused on prevention of further maltreatment and alleviation of the psychological harm that may have already occurred
• - Keep in mind that “a coherent base of research information on the effectiveness of treatment is not available at this time” so be careful about making predictions