CHAPTER
13
Abused/Neglected
Children and the Courts
There
are currently several courts in Massachusetts that handle
cases involving children. Probate Courts oversee
issues of custody and visitation in the context of divorce
and custody proceedings. Juvenile Courts handle a
wide spectrum of cases, including child abuse and neglect
(Care and Protection), adoption, delinquency and status
offense cases. District Courts are the sites for
restraining orders or "209 A" requests in domestic violence
cases that often involve emergency situations with children
and protective parents. Criminal Courts are the sites
for prosecution of child abuse perpetrators. In these proceedings,
child victims are required to testify as witnesses against
their abusers.
Information
Sharing Among Courts
Often,
a single complex case can be heard by more than one judge.
For example, a divorce case involving a child custody matter
might also concurrently involve a Care and Protection, delinquency
or CHINS (Children in Need of Services) case. If a parent
and children seek a restraining order against another family
member, they would need to file a restraining order in District
Court even though the family may be involved in Juvenile
Court.
Several
jurisdictions have adopted unified family courts that enable
one court to hear many different issues as they relate to
specific families and children. This provides for children
a mechanism to facilitate coordination in proceedings that
involve them. For example, restraining orders blocking visitation
in one court must be shared with the court hearing custody
and visitation matters relating to that child.
In Massachusetts,
there is a mechanism currently in place intended to do this,
e.g. when a District Court issues an emergency restraining
order and the family is already involved in a Probate Court
matter. However, given the number of Courts in Massachusetts
that hear cases involving children, the state still requires
a system to better coordinate information in these often
complex cases.
Reporting
of Child Abuse Allegations by the Courts
There
are gaps in coordination and information sharing among the
different courts, and among the courts, DSS, and the District
Attorney's Offices. For example, there is little coordination
among Probate Courts to refer matters of serious abuse directly
to the investigative authorities. Child welfare practitioners
report that allegations of physical or sexual abuse made
against parent abusers during Probate hearings are not given
the same credence as allegations of abuse between a stranger
and a child.
Although
Probate courts do refer cases to private evaluators for
evaluation and forensic interviewing the skills of these
evaluators may differ in significant ways from the forensic
interviewing offered by the county's Sexual Abuse Investigative
Network (SAIN Team) or Children's Advocacy Center. As described
below, there is no significant oversight of these evaluators
and there is no mandated training. Far too often in Probate
proceedings, Courts dismiss allegations of abuse without
even the benefit of interviewing the child.
Because
of reporting problems, an allegation of sexual abuse made
in Probate Court may never be reviewed by the District Attorney's
Office for possible prosecution or by DSS to evaluate the
validity of the allegations. Under Massachusetts' child
abuse reporting law, clerks or clerk magistrates in the
Probate Court are not required to report. Although clerks
or clerk magistrates of the District Courts are mandated
reporters, they often do not make reports as required. Furthermore,
confusion exists about which Court personnel are obligated
to report. For example, "Family Service Officers" in Probate
Court are not specifically mentioned in the statute, but
since they fall officially under the category of "probation
officer," they are required to report suspected cases.
There
must be an effective response mechanism among all Courts
working with children to ensure referrals to appropriate
investigative or clinical services. Other states have created
protocols and procedures to ensure uniform, non-discretionary
referrals among court personnel. In these jurisdictions,
if an allegation of abuse surfaces in a family law matter,
judges are mandated to refer the matter to the state child
protection agency, law enforcement, or delegate that function
to the Clerk of the Court. (In Massachusetts, judges are
not mandated reporters.)
The
Massachusetts Court needs to reassert how suspected victims
of child abuse that come to its attention other than through
Juvenile Court will be appropriately referred for assessment
and services. It is untenable that children who find
themselves before such Courts could present as possible
victims of abuse or neglect and not trigger the Court's
protective response.
Guardians
Ad Litem
In
cases involving children, judges can appoint a Guardian
Ad Litem (GAL), usually an attorney or clinician. One of
the roles that GALs play in our current system is to serve
as a neutral reporter on the facts of the case as they relate
to the child's best interests. Until recently, GALs have
often been appointed based on the judge's familiarity with
an individual GAL. This selection process resulted in protests
from GALs who were less frequently chosen. Selection can
also be made by mutual agreement of the parties to the case,
but, again, not pursuant to any standardized criteria.
The
current Trial Court policy regarding "Fee Generating Appointments"
now applies to all Courts and sharply limits the discretion
of a judge in terms of who can be appointed to specific
cases. Since appointments are to be made sequentially from
a list, the capacity to match GAL evaluators with certain
types of expertise to related cases has been lost. Both
the former and current methods of selecting GALs contain
inherent shortcomings.
Despite
the lack of formal mandatory training, GALs advise the Court
on recommendations relating to child placement, whether
or not abuse occurred, and whether or not a child victim
should have contact with his or her parent abuser. This
is in stark contrast with the mandatory training for Court
Investigators who do fact-finding investigations on behalf
of the Juvenile Court in Care and Protection proceedings.
GALs
in Probate Court may be appointed and paid through State
funding at a rate of approximately $40 per hour if parties
are unable to pay. Sometimes when these GALs are not compensated
through the state, the cost is split by some formula between
the parents, depending usually upon income and resources
- including having only one parent pay the entire GAL cost.
Typically, they will charge from $90 to $150 per hour. An
evaluation to determine visitation or contact between the
child and the offending parent can cost thousands of dollars.
In contrast, Juvenile Court GALs are virtually always paid
through state funding and parties are not assessed costs.
While
some GALs have developed well-deserved reputations as wise
and thoughtful advisors, others are prepared poorly for
the task. Some are conscientious about meeting with the
child and other related parties several times prior to issuing
their recommendations to the court, while others never talk
to or see the child prior to their court date.
Anecdotal
information uncovered by MCC as a result of preparing this
report points to the fact that personal ideologies can sometimes
clash with the best interests of children. For example,
one Massachusetts GAL has stated publicly in court that
he does not believe in child sexual abuse. Clearly, recommendations
on sexual abuse matters by such an individual could influence
court decisions that may result in further revictimization
of a child. In contrast, some GALs may be biased in presuming
that every allegation of sexual abuse is likely to be true.
In each instance, poorly trained GALS, or GALs with rigid
personal ideologies can have damaging impact on children's
lives no matter which way the error goes.
A 1989
study by the Massachusetts Supreme Judicial Court found
that in cases involving custody and visitation litigation,
"the interests of fathers are given more weight than the
interests of mothers and children."[217] This gender bias
persists in cases involving a history of spouse abuse but
also in those involving children who have been victims of
physical or sexual abuse. Mothers who are seeking to protect
their children from further trauma may not be supported
in their attempts to prevent visitations and phone or mail
contact.
Some
GALs may ignore sound recommendations from clinicians with
experience in childhood trauma and a history of extensive
contacts with the child. Other GALs appear motivated ideologically
to uphold parental rights of abusers over children's rights.
Still others appear influenced by strong pressure from parent
abusers to recommend rulings in their favor. Though GALs
have quasi-judicial immunity and cannot be sued, license
complaints may be filed with the professional associations
to which the GAL may belong, e.g. the American Psychological
Association. It is unclear what action, if any, results
from these filings.
There
is currently no formal accountability or oversight of GALs
in Massachusetts. A trade organization does exist -
the Massachusetts Guardian Ad Litem Association - and beginning
this year it will require its members to complete two days
per year of training. Membership in the association, however,
is voluntary. No formal State accreditation or licensing
of GALs is required in Massachusetts and there is currently
no body authorized to provide standards of quality, experience
or accountability.
The
Women's Right Network, a human rights organization based
at the Wellesley Centers for Women, has recently launched
a project to address custody and visitation problems faced
by battered women and their children in the Massachusetts
family court system. This new study, the "Battered Mothers'
Testimony Project: A Human Right Report on Child Custody
& Domestic Violence in Massachusetts," intends to document
harmful actions by state agents of the courts. It will address
the issue of awarding unsupervised visitation to perpetrators
despite evidence of child physical or sexual abuse. Also
to be documented is refusal of state agents of the court
to investigate or respond to allegations that custody evaluators
or GALs have lied in their reports, distorted facts, or
have in other ways shown gross bias or negligence.[218]
In addition,
the Senate Committee on Post Audit and Oversight has also
been documenting problems within the GAL system. MCC supports
the work of the Women's Rights Network and the Senate Committee
to formally document problems in the GAL system and urges
collaboration between these efforts in order to implement
recommended policy changes.
Assessment
Teams and the Courts
As indicated
in the Chapter 8 under "Multidisciplinary Teams and the
Courts," the quality of judges' decisions in complex matters
involving children and families is dependent on the quality
of information received. Teams can provide the courts with
invaluable information about the child - information that
can often be left out due to overburdened social workers,
poorly trained GALs, or inexperienced or incompetent counsel
for the child.
If a
child is sexually or physically assaulted by a stranger,
prosecution would be handled in District or Superior Court,
depending on the severity of the abuse. The District Attorney's
Office would work with the child victim to assess their
availability to testify and assist in the prosecution of
the offender. When the abuser is a parent and has access
to the child, however, the procedure for handling cases
of abuse can become considerably more complicated.
Under
current practice, the Department of Social Services "screens-in"
or formally accepts cases of serious physical or sexual
abuse when they involve a parent or caretaker as the offender.
If, after an investigation, DSS "supports" the finding of
sexual abuse, it refers the matter to the District Attorney's
Office for prosecution. Often the decision of whether or
not to prosecute is made jointly between DSS and the District
Attorney after the child has been interviewed.
If a
child has been abused but is residing with the non-abusing
parent or caretaker, DSS can and often does choose to screen
out the case - in other words, not to assume any jurisdiction
over the matter. In such cases, the Probate Court handles
issues such as parent/victim contact. This places the burden
on the protective parent to request termination of visitation,
or of supervised visitation by the offending parent. If
that parent cannot afford litigation costs, or is deterred
from making the request due to fear of domestic violence
or other reasons, the child by default may not be protected
against the abusing parent.
While
it may be impractical or even unwarranted for DSS to remain
involved in all cases where a protective parent is fully
capable of keeping a child safe, children could still benefit
from referral to a specialized team.
Court
referrals to multidisciplinary teams could serve several
functions:
Evaluation and Treatment
Cases of abuse, particularly sexual abuse, are often suspected
as a result of a child's behavior. Even without a formal
disclosure, these behaviors can lead professionals, parents,
and courts to raise concern about a child's safety or
mental health. A multidisciplinary team specializing in
assessment and treatment of abuse could evaluate these
behaviors and either rule out or help confirm the abuse.
Recommendations relating to appropriate follow-up treatment
for child victims could be made, thus assuring appropriate
clinical intervention and/or prosecution when indicated.
Coordination of Civil and Criminal Matters
The Probate Court is concerned with issues pertaining
to visitation and custody matters, and not to the prosecution
of child abuse. Coordination is necessary between civil
and criminal courts so that allegations of child abuse
are not treated merely as a "family matter" when they
surface in Probate Court. Sexual abuse is a serious criminal
act that could result in prosecution of a family member.
Multidisciplinary teams could serve as a liaison between
the Probate Court and the District Attorney's Offices.
This would ensure that cases of sexual abuse uncovered
in Probate proceedings trigger the same level of investigation
as those referred to the District Attorney's Offices as
a result of "stranger" abuse cases.
Recommendations Relating to Parent/Victim Contact
Arbitrary or ill-conceived recommendations to the courts
relating to perpetrator/victim contact, could be reduced
or eliminated if recommendations to the courts were made
by multidisciplinary child protection teams comprised
of clinicians, representatives from the District Attorney's
Office, the Department of Social Services, and other child
welfare professionals. GALs could participate on these
teams on a case specific basis and assist in the evaluation
and assessment. Recommendations about parent/victim contact
could then be made by the team. DSS' role could be to
provide oversight in such cases, and arrange for supervision
that would ensure the child's safety, if contact with
the offending parent was indicated by the team and supported
by the Court.
Safety Planning for Children
Currently, our present system does not allow the Courts
to impose safety planning for children when abuse has
not been proven by a preponderance of the evidence. In
civil court proceedings, these children would no longer
be deemed at risk of abuse. In many situations, however,
children may still face significant danger, even though
they may be unable or unwilling to disclose.
This "all or nothing" standard can compromise child safety
and mental health. Courts - especially Probate Courts
- can, and in specific cases, should impose supervised
visitations or other "safety planning" elements, even
in the absence of a legal finding of abuse. The Court,
for example, supported by evaluation findings of a multidisciplinary
team, could raise serious concerns about a child exhibiting
trauma-related behavior in direct response to the presence
of an alleged perpetrator. The Court, in such a case,
need not find that the child has been abused by a preponderance
of the evidence before limiting visitation or imposing
supervised visitation.
Court-Friendly
Practices For Child Victim Witnesses
The
Supreme Judicial Court has ruled that courtroom modifications
for children violate the Massachusetts Constitution, which
in criminal cases provides for a defendant's right to confront
his accusers. Current practices regarding the testimony
of child witnesses should be reviewed, however, to determine
whether legislation is required to address discretion of
the judiciary to adapt courtrooms to accommodate the needs
of child witnesses, for example, allowing a trusted caregiver
to remain in the courtroom, or frequent breaks for children
who, as a class, have special needs.
Massachusetts
does have laws that in special circumstances allow a child
to refrain from testimony under certain stringent guidelines.
The child must be unavailable, or unable to testify due
to severe emotional vulnerability. Although not all children,
especially older children and teens, are "anguished" by
offering testimony - some actually find it empowering and
vindicating - it is difficult to apply so strict a standard
to younger child witnesses. Some jurisdictions have legislated
special protections for child witnesses, allowing for examination
and cross-examination of the child by close-circuit televisions,
or in special examination rooms. This spares the child the
anxiety of facing his or her abuser who is often a parent
or relative. We must find creative ways, even within
the confines of the Massachusetts Constitution, to ensure
that our Courts are responsive to the special needs of child
victims.
Judicial
Training in Child Protection
Judges
are hearing cases of abuse, neglect and emotional harm that
involve complex dynamics. Although under our proposed recommendations
judges in these cases should be guided by the advice of
skilled multidisciplinary teams, they also need to have
a fundamental understanding of child abuse and its traumatic
effects on child development and functioning. Essential
elements of the training curricula in child protection for
judges should include: an understanding of the medical aspects
of child abuse, the dynamics of abuse disclosure, a child
victim's need for confidentiality, forensic interviewing
techniques, and the latest findings in the field.
Although
many elements of this judicial training are currently offered,
training is not mandatory. Professionals who routinely offer
these trainings have reported that many judges who could
benefit do not attend. Judicial training in these areas
should be mandatory.
Jeremy
and Isaac
It is
important to note that for one group of children - those
in the formal custody of the Department of Social Services
- the courts may have a limited child protection role. In
1995, two significant child welfare cases, Care and Protection
of Isaac,[219] and Care and Protection of Jeremy,[220]
were argued before the Massachusetts Supreme Judicial Court
(SJC). In both of these cases, the SJC was asked to decide
whether a judge could order a specific type of placement
for a child over the objections of the Department of Social
Services. The SJC ruling that followed has significantly
altered the working relationships among the Court, DSS,
and parties to cases involving children in the custody of
the Department.
In each
of these cases, the Department's proposed placement of the
child was challenged. For example, in Jeremy, the
minor had resided in a series of foster homes until he was
removed from each of these homes due to aggressive and disruptive
behavior. The Department requested the Juvenile Court judge's
permission to place the minor in a long-term residential
treatment program. The child's attorney objected and requested
that Jeremy be placed in the less restrictive setting of
a specialized foster home. Over the next few months, Jeremy
resided in two short-term facilities. Finally, the judge
entered an order requiring the Department to place Jeremy
in a specialized foster home. The Department attempted to
comply with this order without success, and appealed.
On appeal,
the SJC ruled that the Juvenile Court is prohibited from
making decisions relating to placement of a minor if that
child is in DSS custody. As a result of this ruling, the
Department is the sole determiner of the best interests
of children within its custody and it may use cost and availability
of placements when considering its options. Because of the
current shortage of specialized placement services, the
Department cannot always provide children in its custody
with an adequate placement.
The
Juvenile Court's review of the placement is now confined
to whether the Department has committed an error of law,
or abused its discretion. This means that the party contesting
either the placement of the child or the services provided
to that child has the burden of proving that the Department
has abused its discretion. Examples of this abuse of discretion
could involve a DSS decision that interferes unduly with
the goal of reuniting a child with his biological parents,
or that does not properly consider maintaining connections
among siblings and other family members. Choosing one type
of treatment or therapeutic placement over another may not
necessarily qualify as an abuse of discretion, even if qualified
experts conclude that a better service plan for a child
exists.
An MCC
survey of state and national experts in the field of child
protection documented support for the legislature to address
the issues raised in Isaac and Jeremy. These
experts believe that all parties in a child protection case
should have the right to provide the court with expert testimony,
so that the court can make decisions that reflect the best
interests of the child. They believe the court should have
the discretion to order certain services and placements
based on the testimony of expert witnesses.
RECOMMENDATIONS
- Develop protocols for information sharing among
courts.
The often complex nature of cases involving children and
the number of Courts in Massachusetts that hear children's
cases, requires that the State establish protocols to
better share and coordinate information in these cases.
- Ensure reporting by the Courts of all cases involving
child abuse allegations or suspected abuse or neglect.
Victims of child abuse and neglect frequently present
to the Courts during proceedings other than in Juvenile
Court. All court-related personnel mandated by Massachusetts'
law must be trained to report suspected cases or cases
in which allegations of abuse have been made, in order
to ensure uniform, non-discretionary referrals and trigger
appropriate protective responses and services.
- Establish accountability in the Guardian Ad Litem
Program.
The State must document current weaknesses in the GAL
system and establish accountability in the program. At
a minimum, standards of competency and experience should
be addressed, as well as pre-training requirements and
pre-certification to screen out inappropriate or unqualified
GAL applicants. Ongoing mandatory training should be in
place to ensure that GALs are aware of the latest knowledge
and best practices in the field. A registry of licensed
GALs should be maintained so that the courts and the public
have an opportunity to notify the registry when GALs have
performed in an exemplary or incompetent fashion.
- Make consultations from Multidisciplinary Child
Protection Teams available to the Courts in cases of suspected
or confirmed cases of child abuse and neglect.
Decision-making by the Courts in matters involving children
could be improved through linkages between the Courts
and multidisciplinary teams. Proposed court-related functions
of the teams include: evaluations to help confirm or rule
out suspected abuse; coordination of civil and criminal
matters through liaison between the Probate Court and
the District Attorney's Office; recommendations relating
to perpetrator/victim contact; and consultation regarding
safety planning for suspected or confirmed child victims.
- Establish court-friendly practices for child victim
witnesses.
Even if current Massachusetts case law bars modifications
for child testimony, the practices regarding the preparation
of child witnesses, transportation, waiting in court,
and supportive persons in court might be feasible and
beneficial to child victims of abuse.
- Mandate judicial training in child protection.
Judges who routinely deal with issues of child protection
should be required to participate in training around these
complex issues. This would ensure that decisions are informed
by the latest knowledge relating to clinical and protective
practice.
- Provide legislative review of the cases of Jeremy
and Isaac.
The Courts have a compelling interest in ensuring permanency
for children at the earliest possible date, and in ensuring
that the therapeutic needs of traumatized child are addressed.
As the Supreme Judicial Court has suggested, the legislature
must examine the cases of Jeremy and Isaac in order to
define more clearly the scope of the Court's authority
when making decisions about placement of children in the
custody of the Department of Social Services.
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Section
III: Protecting Our Children
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