False Protection: Why Some Neglect Statutes Jeopardize the Best Interests of the Child

By Courtney Squires

https://nypost.com/2018/10/12/acs-accused-of-ignoring-safety-concerns-of-foster-kids/

Pursuant to § 63.2-100 of the Virginia Code, “physical neglect” is defined as “the failure to provide food, clothing, shelter, necessary medical treatment, or supervision for a child to the extent that the child’s health or safety is endangered.”[1]  The child protective services (CPS) manual, authored by the Virginia Department of Social Services, elaborates on the administrative code by identifying numerous types of physical neglect.[2] Under § 2.4.2.2. of the CPS manual, “Inadequate Supervision” is a form of child neglect defined as leaving a child “in the care of an inadequate caretaker or in a situation requiring judgment or actions greater than the child’s level of maturity, physical condition, and/or mental abilities would reasonably dictate.”[3] Taken at face value, these definitions and regulations appear to cover every situation that might necessitate state intervention in a child’s life. The reality of these regulations and broad definitions, however, is a double-edged sword that disproportionately harms families living in poverty.

Broad regulatory definitions of neglect bolster the ability of social services agencies to remove children from their parents and into the “protection” of the state. This protection, however, is often more harmful than helpful. Imperfect home conditions, although a hurdle to optimal development, are often less traumatic to a child than the physical act of removing them from their homes. Studies show that separating a child from their parent(s) causes toxic stress – a condition that can permanently alter a child’s ability to form meaningful relationships later in life.[4] Toxic stress is “the excessive or prolonged activation of stress response systems in the body and brain”[5] and has been linked to several other adverse conditions such as: chronic obstructive pulmonary disease (COPD), depression, cancer, obesity, and increased risk of suicide.[6]

Parent-child separation is traumatic and developmentally harmful because children – who are born with the natural capacity to attach – develop emotional attachments to their parents.[7] A child’s early attachment to their parents dictates how they approach the world. For example, a child with a secure attachment to their parent/caregiver is more likely to explore new environments and socialize with other children and unfamiliar adults.[8] Children with insecure attachments, although less inclined to depart from their attachment figure in a new environment, still use that attachment to understand the world around them. When a child is in distress, they look to their attachment figure for resolution. Thus, even if a child’s attachment to their parent isn’t perfect (i.e. “secure”), there is still a conscious recognition that their parent is a safe haven.[9]

When a child is removed from the home, there is an external presumption of physical and/or sexual abuse or exceptionally dangerous living conditions. Although, unfortunately, this is sometimes the case, most removals are triggered by findings of “neglect” – a condition that is perceived differently by every social services agency. This neglect, however, is typically more related to poverty than it is to parental incompetency. Unfortunately, the proffered fix is usually to remove the child(ren) from the “neglectful” environment and place them with the State while and until their parents remedy the circumstances. As if uprooting a child from their home isn’t jarring enough, removing them from their parents only exacerbates the trauma because they no longer have access to their attachment figure in a time of distress.

In conclusion, there are certain cases in which removal is warranted, primarily those situations involving child abuse or true neglect. After all, the number one priority of the child welfare system is to protect and preserve the best interests of the child. Acting in the child’s best interest, however, starts with recognizing the devastating impact that removal can have on a child’s development. Broad definitions of neglect, even if written in good faith, disproportionately target low-income families and make criminals out of loving parents that are merely struggling to make ends meet. There is nothing restorative about penalizing a parent that can’t afford childcare; or who can’t afford to launder their children’s clothes or put adequate amounts of food on the table. More often than not, the best interests of the child are better served by keeping the family intact and connecting parents to the help and resources they need to improve the conditions at home. Moving forward, state legislatures should revisit their child abuse and neglect regulations to make sure the definitions therein are not just a list of circumstances more likely to be present in low-income households.

 

 

[1] 22 Va. Admin. Code § 40-705-30 (2022).

[2] Va. Dep’t. of Soc. Servs., Child and Family Servs. Manual (2020).

[3] Va. Dep’t. of Soc. Servs., Child and Family Servs. Manual (2020).

[4] Sara Goudarzi, Separating Families May Cause Lifelong Health Damage, Scientific American (Jun. 20, 2018), https://www.scientificamerican.com/article/separating-families-may-cause-lifelong-health-damage/.

[5] Harv. Univ., Ctr. on the Developing Child, Toxic Stress, https://developingchild.harvard.edu/science/key-concepts/toxic-stress/ (last visited Sept. 8, 2022).

[6] Hillary Franke, Toxic Stress: Effects, Prevention and Treatment, Nat’l Libr. of Med., Nat’l Ctr. for Biotechnology Info. (Nov. 3, 2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4928741/#:~:text=Toxic%20stress%20results%20in%20prolonged,%2C%20reassurance%2C%20or%20emotional%20attachments.

[7] Tommie Forslund et al., Attachment Goes to Court: Child Protection and Custody Issues, 24 Attachment & Human Dev. (2022), https://www.tandfonline.com/doi/full/10.1080/14616734.2020.1840762.

[8] Tommie Forslund et al., Attachment Goes to Court: Child Protection and Custody Issues, 24 Attachment & Human Dev. (2022), https://www.tandfonline.com/doi/full/10.1080/14616734.2020.1840762.

[9] Tommie Forslund et al., Attachment Goes to Court: Child Protection and Custody Issues, 24 Attachment & Human Dev. (2022), https://www.tandfonline.com/doi/full/10.1080/14616734.2020.1840762.

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