NEGLECT Current Law § 2151.03. Neglected child defined; failure to provide medical care for religious reasons (A) As used in this chapter, "neglected child" includes any child: (1) Who is abandoned by the child's parents, guardian, or custodian; (2) Who lacks adequate parental care because of the faults or habits of the child's parents, guardian, or custodian; (3) Whose parents, guardian, or custodian neglects the child or refuses to provide proper or necessary subsistence, education, medical or surgical care or treatment, or other care necessary for the child's health, morals, or well being; (4) Whose parents, guardian, or custodian neglects the child or refuses to provide the special care made necessary by the child's mental condition; (5) Whose parents, legal guardian, or custodian have placed or attempted to place the child in violation of sections 5103.16 and 5103.17 of the Revised Code; (6) Who, because of the omission of the child's parents, guardian, or custodian, suffers physical or mental injury that harms or threatens to harm the child's health or welfare; (7) Who is subjected to out-of-home care child neglect. (B) Nothing in this chapter shall be construed as subjecting a parent, guardian, or custodian of a child to criminal liability when, solely in the practice of religious beliefs, the parent, guardian, or custodian fails to provide adequate medical or surgical care or treatment for the child. This division does not abrogate or limit any person's responsibility under section 2151.421 [2151.42.1] of the Revised Code to report known or suspected child abuse, known or suspected child neglect, and children who are known to face or are suspected of facing a threat of suffering abuse or neglect and does not preclude any exercise of the authority of the state, any political subdivision, or any court to ensure that medical or surgical care or treatment is provided to a child when the child's health requires the provision of medical or surgical care or treatment. § 2151.05. Child without proper parental care Under sections 2151.01 to 2151.54 of the Revised Code, a child whose home is filthy and unsanitary; whose parents, stepparents, guardian, or custodian permit him to become dependent, neglected, abused, or delinquent; whose parents, stepparents, guardian, or custodian, when able, refuse or neglect to provide him with necessary care, support, medical attention, and educational facilities; or whose parents, stepparents, guardian, or custodian fail to subject such child to necessary discipline is without proper parental care or guardianship. § 2151.011 Definitions… (B) As used in this chapter… (1) "Adequate parental care" means the provision by a child's parent or parents, guardian, or custodian of adequate food, clothing, and shelter to ensure the child's health and physical safety and the provision by a child's parent or parents of specialized services warranted by the child's physical or mental needs” [emphasis added].” C) For the purposes of this chapter, a child shall be presumed abandoned when the parents of the child have failed to visit or maintain contact with the child for more than ninety days, regardless of whether the parents resume contact with the child after that period of ninety days. Problem The language of the neglect statutes is extremely ambiguous. The laws are silent as what types of parental omissions qualify as neglect. In addition, the word “neglect” is used to define neglect and the word “adequate” to define adequate. They are rife with subjective terms such as “necessary,” “proper,” “adequate”, “fault”, “morals”, and “well- being,” all of which mean different things to different people. This ambiguity lends itself to confusion in those who investigate and substantiate neglect (or not) and tension between agencies and mandated reporters who most often report neglect—particularly educators. It exacerbates a problem that is particularly endemic in neglect cases—the tendency to impose one‟s own values and standards in evaluating the behavior of others.. Inconsistencies We found inconsistencies from county to county in the frequency with which the neglect designation is used. Some use this designation freely, reporting relatively high numbers of neglect cases. Others use it sparingly, preferring the abuse and dependency designations.1 Parental omissions that are substantiated as neglect by one agency are unsubstantiated or screened out by another. We found significant inconsistencies from practitioner to practitioner as well. We asked our survey respondents to identify factors which, standing alone, would be sufficient to warrant a disposition of substantiated neglect. Their responses indicated a significant split on most of the factors.2 Factor Would Would Not Substantiate Substantiate No running water3 21.1% 79.9% No indoor plumbing 21.1% 79.9% No electricity 22.3% 77.7% No gas 17.9% 82.1% Cockroach infestation 38.7% 61.3% Mice infestation4 38.5% 61.5% 1 One judge stated, “2151.03 is the rarest used section of the code in our county.” A caseworker from another county stated: “Our court is tough on abuse, but calls almost all neglect cases dependency.” 2 Survey respondents who had worked for less than a year in child welfare tended to favor substantiation more than any other group. 3 Screeners and investigators differed in their responses to this question. 31.1% of screeners would substantiate neglect as opposed to only 19.8% of investigators. 4 Interestingly, only 5.9% of administrators would substantiate neglect in a case of cockroach infestation, while 23.5% would substantiate in a case of mice infestation. In contrast, 66% of those with 1-3 years experience in child welfare would substantiate cockroach infestation and 56.6% would substantiate mice infestation.) Dog/cat feces basement floor 32.3% 67.7% Extensive clutter 22.3% 77.7% 10 people/2 bedroom apartment: 23.8% 77.2% Children on dirty, unsheeted 29.5% 70.5% mattresses on floor Child, 10 home alone 2 hours 16.4% 83.6% several evenings Child, 12, in charge of siblings, 20.1% 79.9% 1 and 3 in the evening Child, 2 wandering outside, 99.5% .5% unclothed , mom not home Children, 13 and 16 home 58.6% 41.4% alone, 2 weeks, parents vacation5 Practical Considerations Three issues were mentioned most frequently with regard to problems caused or exacerbated by current neglect law: Parental substance abuse; School-PCSA relationships; and Parents refusing to care for their unruly/delinquent teens. 1. Parental Substance Abuse Parental substance abuse is an issue that came up often in the context of neglect. Agencies are all over the board in terms of their approach to this issue.6 Many struggle with where to draw the line.7 In some counties agencies automatically intervene when the mother tests positive for drugs, even if the baby hasn‟t been tested, or doesn‟t test positive. Of these counties, some see a positive test result as an opportunity to offer services to the family. Others actively seek removal of the child.8 In one county, we were told, a special team of investigators “tracks pregnant women so that they can take the baby if mom tests positive.” In another, the hospitals call to report parents who test positive before the baby is born. One prosecutor told us that between 1999 and 2001 “the county commissioners ordered the PCSA to remove all children whose mothers were on drugs. We were removing 500 kids a month until they stopped that practice.” Respondents from some counties expressed concern about removing a child, or even offering services, in the absence of a showing of harm to the child related to parental substance abuse. Some counties require a positive drug test, a diagnosis of fetal 5 As a group, Screeners were more likely (72%) to substantiate neglect in this situation, The less experience a person had working in child welfare, the less likely they were to substantiate. 6 In our survey, respondents were divided on the substance abuse issue. 52% said they would screen in a report of parent‟s arrest on drug charges, while 48% would screen out. 45% said they would screen in a report of a child witnessing the parent using drugs, 55% would screen out. 7 One caseworker asked: “If a baby tests positive for drugs it‟s abuse (case law), but what if mom does and baby doesn‟t? How can you find neglect when the baby is a couple hours old, when there is no history?” 8 One caseworker stated: “Our judge and magistrate seem to think that anytime a parent uses marijuana we need to remove the children and just because a parent uses drugs does not mean that they use drugs around the children.” However, a worker from a different county commented: “I do not see the court as recognizing the dangers involved with drug/alcohol/substance abuse, nor with domestic violence in the home.” alcohol syndrome, or some other indication to warrant intervention. One prosecutor stated: “Mom‟s smoking pot every day? So what? Give me a nexus. What‟s the negative impact on the kids? There has to be some connection between her behavior and harm to the child. Agencies are intervening without a showing of connection between mom‟s drug use and baby‟s well being.” Another stated: “I think that 2151.03(A)(2) is sometimes applied unfairly to some parents —this is the provision that is often cited in cases involving substance abuse or domestic violence, but it seems unfair to apply it to cases in which the primary caregiver/parent is suffering from the „disease‟ of alcoholism or drug addition. Society is moving toward a greater recognition of substance abuse as an illness, but the neglect statute still treats it as something that is within the parent‟s control.” One respondent expressed concern about poor parents being unfairly singled out for drug testing, stating: “If you are private-pay you don‟t get drug tested. If you get Medicaid you will be tested. That‟s why a disproportionate number of poor people test positive for drugs.” Several expressed concern about the unfairness of the timelines in cases involving parental addictions. One public defender stated: “The 12/22 rule is unfair to parents. When you‟re dealing with a parent who‟s a crack addict, that‟s not reasonable. It‟s a real problem for parents. If you accept the premise that treatment/recovery is a two-year process, unless they have family supports they‟re going to lose that child.” Another stated: “It‟s very hard for clients who are addicted to get assessment until 6-8 months in, because of the addiction process. They may not be ready for treatment when we remove the child. And if the client has mental health issues as well as addictions, they get into issues of which do you treat first. Meanwhile parents are just hanging out there waiting. No one is trying to pull them in. We get permanent custody of more kids than ever before this way. “ 2. PCSA - School Relations The ambiguity of Ohio‟s neglect laws also causes confusion about what types of situations should be reported to PCSAs and what should be investigated. In cases of suspected neglect, PCSAs interface quite frequently with school professionals, who are mandated reporters under Ohio law. We heard a lot about tension between these two professions surrounding the reporting, receipt, and investigation of neglect concerns. The school personnel that we interviewed expressed great frustration because on the one hand they are required by law to report suspected child neglect 9 yet from their perspective their concerns are often either not taken seriously or are rejected outright by PCSAs. Among the examples that were cited: Child came to school for the 7th time with head lice. School had been calling CSB since the 3rd time, however were told it was not neglect, but was rather “a health department issue.” Children came to school “dirty/filthy, and out of control” and had many behavior problems. “This family needed help, but the agency refused to get involved.” A “lower functioning” child came to school with a huge bedsore caused by bedwetting. CSB was contacted but refused to become involved. It was not until mom beat the child for the bedwetting and the school nurse “called CSB and said I was afraid to send him home” that the agency became involved. Children weren‟t being fed breakfast, were very malnourished, very thin—“even our cooks were concerned,” however the PCSA failed to respond to several reports. A 17 year old was left alone for a lengthy period of time with a mentally challenged younger child. The school contacted CSB, which refused to become involved, stating that the children were „o.k.‟ because the older child‟s girlfriend‟s mother looked in on them periodically. “But they were not o.k.” from the school‟s perspective. One educator commented: “Many neglected children fall through the cracks because CSB is unwilling to get involved. Some educators stop reporting because they know nothing will happen, and because sometimes reporting does more harm than good— children get mistrustful and stop talking, because we say we‟ll help then CSB does nothing or leaves a card. And the parents get mad at us and tell their kids to stop talking to school officials.” PCSA practitioners, on the other hand, expressed frustration about what they perceive to be the schools‟ inappropriate referrals. As one PCSA director stated: “Educational neglect is a dumping ground, through which schools inappropriately transfer their problems to county child welfare agencies. Schools try to send cases to child welfare agencies under such circumstances as truancy, parents not transporting their children to school, parents not appearing at school meetings, and children with head lice. These are not child protection issues.” Differences between these two professions seemed to center around the following major issues: 9 Schools, of course, also have occasion to refer situations involving suspected abuse to PCSAs, however, this does not seem to be as problematic. As one school official stated: “Abuse is more clear cut. Neglect is much more nebulous.” Lice . Schools tend to view children repeatedly coming to school with head lice as a neglect issue. They send children with lice home to prevent spreading to the other children, the parents do nothing and the children either come back to school with lice or remain out of school. Educators expressed frustration over PCSAs‟ apparent lack of concern about this. Many agencies, on the other hand, consider head lice to be outside the purview of their responsibilities. Some parents try to get rid of the lice but cannot afford the necessary lice shampoo or insecticide bombs. Others do get rid of the lice but don‟t pick the dead nits out of their children‟s hair. As one caseworker stated: “Anyone can get lice, it‟s not a neglect issue. The dead nits indicate that somebody is trying. But the schools don‟t accept that.” Behavior Problems. Schools‟ sometimes see children‟s behavior problems at school as indicative of parental neglect, and refer such cases to the PCSA. Many agencies, however, see most behavior problems alone as outside their boundary. As one worker stated: “Schools call us to refer parents whose kids are bad. Even facilities serving sbh [severely behaviorally handicapped] kids do this, when that‟s what they‟re there for. Those cases aren‟t appropriate for referral, but some PCSAs take them because of the view in their community.” Truancy. Schools often view truancy as occurring with the tacit approval of the child parents and as appropriate for PCSA referral. Many agencies, on the other hand believe that truancy is primarily an educational or delinquency issue, which generally should be dealt with by the school or juvenile court. Interestingly, 52% of survey respondents felt that a report about a child missing 25 days of school should be screened in, while 42% felt it should be screened out. Dirty Clothes/Hygiene. School often contact PCSAs with concerns children coming to school dirty and smelling. Concerned about the emotional and social repercussions that such conditions has on children, many educators take it upon themselves to purchase or wash clothing, buy toothbrushes and other items, make provisions for showers, etc., before contacting the PCSA to report child neglect. Some agencies argue that dirty clothes and poor hygiene alone are generally not child protections matters, that if they are forced to deal with such concerns they will be hampered in their efforts to deal with situations involving real danger to children. Some communities have made collaboration between PCSA and schools a priority, and have worked hard to build relationships and consensus as to what types of situations are appropriate for referral. A PCSA director from such a community stated: “We have done a lot of training with our mandated reporters. When I first came here they were making really inappropriate referrals—lice, not wearing a coat, etc. Over 7 years we‟ve trained them and shared our screening guidelines. The quality of our referrals has gotten a lot better.” A school official from a collaborative community stated: “Collaboration is extremely important, and will have to accompany any changes in the laws. In our community [the schools and the agency] have meetings. We send counselors out with caseworkers. [We] used to have unreasonable expectations, but that kind of thing helps. So now we say, if CSB won‟t do it, what can we do?”10 For others, however, relations are strained at best and counter-productive at worst. Unfortunately, it is the children who suffer the consequences of this dissension and mistrust. The ambiguity also creates problems for agencies in terms of the types of referrals received from other members of their communities, and the expectations of those communities as to the appropriate extent of PCSA involvement. One caseworker stated: “We [the PCSAs] are really dealing with minimum standards of parenting, when the community often has higher standards. It is especially difficult getting lawyers and GALs to understand that. The law needs to specify more clearly that child welfare‟s job is to deal with kids in “imminent risk,” so when people call, the screeners can say “Sorry, that‟s not within our scope.” 3. Parents Refusing To Care For Their Unruly/Delinquent Teens Reportedly, a significant number of parents in Ohio, when their children become unruly or delinquent teenagers, kick them out, or refuse to accept them back home following detention center placement or to work a PCSA case plan for reunification. This was frequently mentioned by PCSA staff as a source of frustration. As one administrator put it: “Parents should be held accountable for raising their kids instead of passing them off and saying they don‟t want to raise them. Especially teens. I‟d like to file neglect on those families. You don‟t just walk away if you‟re a parent.” 11 Reportedly, the PPLA is often used to justify placements of these children with PCSAs. These parents do not wish to have their parental rights terminated, but they do want the state to care for their children during the difficult adolescent years. One agency director stated: “Can we please make PPLA go away? It‟s a catch-all for teenagers. We‟ve done a terrible disservice for kids by having it available. Judges use it for 5 and 6 year old kids. We‟re still paying a price for those young kids being in that status—it‟s ridiculous! Many courts disregard the stiffer requirements for PPLA. If you do away with PPLA, then parents are forced to do something about that child. They aren‟t going to want to permanently terminate their parental rights. They want us to raise their kids and fix them then let them come back home when they turn 18.” 10 Several respondents mentioned the Truancy Mediation Program in their county as having been extremely beneficial to the school/PCSA relationship. 11 This administrator continued: “There aren‟t enough teeth in the laws that hold parents accountable for raising their kids. There‟s no way to technically hold parents accountable for their participation in the case plan except terminating their parental rights. But in the case of a teenager that‟s not appropriate. So parents wash their hands, kids spend three years under state care, then go back home. Something ought to happen with those parents. Some sort of juvenile court action. Right now all the only tool the court has is contempt. But so what—there‟s no penalty. Nor can you penalize them financially—many are just above poverty level. Plus, slapping them with a support order just makes them more adversarial. They think CSB is making them pay.” 4. Additional Concerns Our respondents mentioned several additional concerns relative to the neglect statutes, albeit less frequently than the three primary issues already discussed. Briefly, these are: Children left unattended “We need clearer guidelines about when it‟s ok to leave kids alone, considering factors such as time of day, child‟s age, maturity, and knowledge of safety, responsibility for younger children…” Role of absent parents in abandonment cases: “The way that „abandonment‟ is currently defined presumes an intact family unit where both parents act in concert. [This] is rarely the case in abuse, neglect, and dependency cases. Clarifying the definition of „abandonment‟ should take into account „real world‟ experience, where oftentimes there is one parent who is not involved and does not want to be involved. Being able to terminate that parent from the „reasonable efforts‟ requirements of 2151.419 would assist PCSAs in doing their work.”12 Parents failing to pay child support. “I think that the neglect statute should specifically include a separate subparagraph basing neglect on the failure to establish paternity and support, visit or communicate with the child when able to do so.” Inadequate home schooling. “There is no real follow-up or accountability in home schooling. Most parents do great, but some use it as an opportunity to totally drop the ball when it comes to educating their kids. This is educational neglect and should be dealt with by law.” Drunk driving with child in car. “Drunk driving with a kid in the car should be automatically treated as neglect.” Child in vicinity of meth-amphetamine lab. “There is so much danger of blowing the place up in a meth-amphetamine lab, any parent who has a child in such a place is exposing that child to serious risk of harm. Include this as abuse or neglect.” Comments The real danger in the ambiguities of the neglect laws lies in the tendency of people to evaluate the behavior of others in light of their own circumstances, beliefs and values. A significant number of the respondents to whom we spoke mentioned that neglect cases in reality often have more to do with poverty than with neglect. One caseworker stated: “A „neglected child‟ is someone without adequate parenting, but this often seems to just require what a „middle class‟ person would want (i.e. this kid needs braces). We need to do better to make sure that we know what is really basic care.” 12 This prosecutor continued: “The Reasonable Efforts statute (2151.419), does not reflect the reality that the appellate courts typically require PCSAs to attempt reunification with both parents, even if one is not the parent from whom the child was removed…” One judge opined that if agencies would take the money that they pay to foster parents and use it to provide supports for the child‟s parents, there would be fewer “neglect” cases” : “There‟s a small county in Minnesota where next to no children are in custody. There isn‟t even an ongoing children services agency. All of their money goes to family preservation. One of their main things is that when there‟s a concern about a child at risk someone actually moves in with the family to assist with ever conceivable thing the family or child would need to deal with. Most families tend to be ok, but when not, people really know for sure that it‟s the right thing to separate. No question about the appropriateness of breaking up the family.” Several respondents expressed the view that a disproportionate number of black children are brought into care, and that this also is a reflection of the subjectivity with which neglect assessments are made. One respondent stated: “You‟ll see differences depending on which area of the state you‟re in, and whether it‟s a small rural area or a large urban area. Even within our own agency there are discrepancies; we see that in terms of who comes under care—black families are disproportionately represented because they have different values than the people investigating them.”13 One respondent observed that many PCSA clients are relatively uneducated, and that this can weigh against them in investigations. She stated: „Some people haven‟t developed a value around education, and we‟re very punitive about that.” Tightening up the neglect laws will, hopefully, diminish the “window of opportunity” for professionals and citizens to interject their own cultural norms and expectations in assessing the behavior of their neighbors and clients, and prevent the unfair labeling of parents who are merely different as “neglectful.” Possible Recommendations Articulate the specific “parental cares” (duties) which, if omitted, constitute neglect Articulate factors to be considered in determining whether a parental omission is neglectful: e.g. the nature of the omission, intent/reason, chronicity, age/constitution/ temperament of child, etc; Specify whether, and the extent to which, harm to the child is required to establish neglect Avoid words such as “adequate,” “necessary,” “proper,” “morals,” “well-being,” etc. that lend themselves to individual interpretation; To the extent possible, replace them with quantifiable terms 13 This particular individual worked at a PCSA located in a mid-size, predominantly white, suburban community Add provisions specifying conditions (if any) under which the following will be considered neglect: Parental substance abuse Failure to establish paternity/pay child support Children left unattended Parents refusing to care for their unruly/delinquent children Clarify the role of the absent parent in abandonment cases, and reconcile the singular/ plural discrepancies in the statutes Require additional training for judges, magistrates, lawyers, and PCSA staff regarding substance abuse dynamics and issues (Several survey respondents requested training on this subject).