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David Baxter

Mar 26, 2004
Failure to Protect Laws: Protecting Children or Punishing Mothers?
by Brenda M. Ewen
J Foren Nurs. 2007;3(2):84-86.

Failure to protect laws are designed to guard children from the negative effects of exposure to interpersonal violence. Not only haven't these laws been found to be helpful, but they may actually produce harm.

Every year in the United States between 4 and 6 million women are victims of interpersonal violence (IPV) (Kintner, 2005). Approximately 4 out of 10 abused women live in homes with children under age 12, leading researchers to estimate that between 3 and 10 million children are exposed to IPV annually.

Some states have attempted to protect children by including exposure to IPV as "failure to protect" under child abuse and neglect laws. Charges have been brought against IPV victims for failure to act or fulfill a duty recognized by the law to protect children from exposure to IPV (Matthews, 1999). Failure to protect laws assume IPV harms the children who are exposed to it, necessitating state or judicial intervention.

Parents and caregivers often think they are sheltering children from IPV, but 80-90% of children exposed to IPV can relate detailed descriptions of violent episodes (Rhea, Chafey, Dohner, & Terragno, 1996). Research reports that children exposed to IPV may be at risk for emotional and psychological injury resulting in developmental delays, cognitive impairment, and maladaptive behavioral responses (Ballif-Spanvill, Clayton, & Hendrix, 2003). As many as 35-50% of exposed children have emotional or behavioral problems that fall into the clinical range requiring intervention by behavioral health specialists (Martin, 2002). In 30-60% of homes in which IPV is reported, child maltreatment occurs (Edleson, 1999). Intergenerational transmission of abusive behaviors and attitudes often develops. Men who are exposed to IPV as children are two times more likely to abuse their wives than men who are not (Edleson, 1999).

Not all research finds the effects of IPV on children detrimental enough to warrant state intervention. Individual responses to exposure to violence are difficult to predict (Edleson, 2004). A wide range of responses to IPV exposure was discovered in a study of 58 children in a battered women's shelter (Hughes & Luke, 1998). Behavioral problems, low self-esteem, depression, and anxiety were assessed. The researchers found that 36% of the children were "hanging in there" while 26% were described as "doing well." The remaining 22 (38%) children demonstrated a variety of problems classified as "high behavior problems," "high general distress," or depression.

Sullivan et al. (2000) studied children (n = 80), 7-11 years old. Despite exposure to IPV, 83% of the children studied said they were happy with themselves and reported relatively high self-concept scores and low levels of behavioral problems. Grych and colleagues (2000) studied 228 children residing in a shelter for battered women. Nearly one-third functioned well and did not demonstrate any problems. Research suggests that a significant percentage of children residing in IPV shelters exhibit either low levels of distress and behavior maladjustment or none at all.

Differences in children's responses were attributed partly to protective factors such as well developed interpersonal skills, intelligence, special talents, social support systems, and relationships with supportive and nurturing adults (Martin, 2002). Protective factors increase a child's resilience or ability to cope with a situation. Conversely, co-existing risk factors including parental substance abuse, parental mental health issues, and the presence of a weapon in the home decrease a child's ability to cope and increase the risk of neglect and abuse of the child (Cox, 2003).

The way in which research is conducted may influence research findings. Populations of children chosen for study often come from the criminal justice or shelter systems. These children may disproportionally represent children who have been exposed to the most severe forms of IPV. Only one-third of the almost 100 studies documenting the harmful effects of IPV exposure have differentiated between children who were physically abused and those who weren't, leading to questions regarding the validity of the remaining two-thirds of the studies (Edelson, 2004). Experts on children and IPV caution against assumptions that IPV exposure constitutes maltreatment or warrants child protective services (CPS) intervention in all cases (Hughes, Graham-Bermann, & Gruber, 2001).

So-called "failure to protect" charges trigger CPS and move jurisdiction of exposure cases to juvenile or child dependency courts. Use of these statutes for this purpose is highly controversial, in part, stemming from the philosophical views of the two groups most involved with children exposed to IPV: CPS and the IPV community.

The legal mandate and societal directive for CPS is protecting the child. Protection is achieved through investigation and intervention including removing the child from the home if necessary. Failure to protect laws are seen by some CPS workers as a way to motivate IPV victims to act (Findlater & Kelly, 1999). Identifying children exposed to IPV can reduce harm and decrease the risk of the co-occurrence of IPV and child abuse (Kintner, 2005). Failure to protect statutes protect children from the burden of adult issues and harsh realities. Consistency in handling the cases sends a message to victims, abusers, children, and society that exposure to IPV is harmful and will not be tolerated (Weithorn, 2001).

The IPV community sees failure to protect statutes as punitive, misguided and gender biased (Little & Kantor, 2002; Weithorn, 2001). Advocates for victims of IPV work to empower victims by giving them back the control their abusers took from them. Empowerment is not gained through obedience to social or legal expectations (Peled, Eisikovits, Enosh, & Winstok, 2000). Empowerment is achieved through independent choices and control. Advocates believe that respecting the adult victim's autonomy and providing them with information and resources will ultimately work to protect the child (Lewis, 2003).

Unintended Consequences
Failure to protect laws have several unintended consequences that may perpetuate or increase harm to the IPV victim as well as to children. Failure to protect laws blame the victim for harm she has not caused. The focus of the judicial system is on the victim instead of the abuser, allowing society to avoid looking at and dealing with the real issues including lack of shelters and resources, inadequate or poor police and judicial response, and a patriarchal social structure, thereby perpetuating IPV (Magen, 1999).

Failure to protect laws force victims and their children into the child welfare system. Minnesota attempted to treat children exposed to IPV as maltreated children from 1999-2000. Minnesota CPS was flooded with a 50-100% increase in maltreatment reports, however, with no additional funding provided. Full implementation would have increased caseloads by 500% at an additional cost of $31 million a year (Edelson, 2004). Florida did not fare any better. In 1999 Florida mandated the filing of dependency petitions in highrisk cases such as those involving IPV. Compliance with this statute nearly paralyzed the state's ability to respond to any maltreatment cases (Weithorn, 2001). The Florida law was also revised in 2000. Neither CPS system was adequately staffed, trained, or funded to deal with the unexpected and strangling increase in workloads when children exposed to IPV were considered within their purview

Failure to protect laws, while intending to protect children, may actually produce harm. The threat of removing a child from a mother can be used to manipulate the mother into leaving an abusive situation prematurely, possibly without a safety plan in place. Leaving an abusive partner without a plan increases the risk of stalking, injury, and homicide (Kopels & Sheridan, 2002). Protection from these dangers is not adequate especially if the abuser is not held accountable for the abusive actions (Weithorn, 2001).

Removing children from their mothers' custody may cause further harm. A positive relationship with the nonabusive parent improves the child's well being (Weithorn, 2001). A strong bond with the caretaking parent who is able to recognize and understand the child's pain is a source of security and thus is essential to recovery (Bancroft, 2004). Removing a child from the home may lead to further disruption, stress, and damage to emotional wellbeing (Zink et al., 2004). The harm produced by out-of-home placement may exacerbate any harm the child may already have suffered.

Fear of CPS involvement may decrease disclosure of violence and reduce the number of women seeking assistance from mandated reporters, further endangering children (Weithorn, 2001). Often viewed as punitive rather than helpful, CPS workers are thought to be lacking in understanding of issues related to IPV and victims fear removal of their children (Buchbinder, 2004). Abused women believe CPS blames them for being victims and does not hold the abuser accountable (Weithorn, 2001).

Failure to protect statutes include legislation based on the unsubstantiated belief that all children exposed to IPV require state intervention. There is no evidence that charging the nonabusive parent or removing the child from the home benefits the child. Forensic nurses must advocate for the fair treatment of IPV survivors and their children by both judicial and law enforcement systems. Forensic nurses must urge lawmakers to consider that providing mothers with the resources and support they need to protect them and their children may be more cost effective and result in better outcomes than a punitive, ‘one size fits all' policy.

Author´s note: Child protective services (CPS) may not be seen by abused women as an agency that is capable of providing them and their children with needed services and resources.

David Baxter

Mar 26, 2004

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