Exposure to IPV: Is it Child Maltreatment?

Exposure to IPV:Is it Child Maltreatment? Module Four Johnna L. Pike, JD Doctoral Student School of Sociology School of Law University at Buffalo

How is Childhood IPV Exposure being addressed Legally? • States are expanding the definition of maltreatment to include children's exposure to IPV. • provisions addressing parents failure to protect their children under civil neglect statutes • Minnesota study (1999) found three-quarters of cases cited as failure to protect contained indications of adult IPV • provisions invoking criminal jurisdiction over child maltreatment cases

Issues Raised By Expansion of Maltreatment Definition • In cases of childhood exposure to IPV: • When or Is it appropriate to apply the Civil Statute of "Child Neglect"? • When or Is it appropriate to apply the Criminal Statute of "Child Endangerment"? • Who should be held legally accountable for the exposure of children to IPV?

New York State's "Neglect" Statute • Statute does not explicitly mention exposure to domestic violence: • FCA Section 1012 defines "neglect" as... When a caretaker fails to exercise a minimum degree of care … with the result that the child’s physical, mental or emotional condition is impaired or in imminent danger of impairment

Elements of Neglect • Actual harm or a substantial likelihood of harm. • A causal connection between the lack of care and the impairment or risk of impairment. • Due to a lack of supervision or protection of a minor • Neglect is therefore an act of omission rather than an act of commission

Who Can Be Held Accountable for Neglect? • Child's custodian • Child's guardian or... • Any other person legally responsible for the child's care at the time: • Living in household • Has regular contact with the child • In certain circumstances may apply to a relative or paramour living within the home

Neglect in Cases involving IPV Exposure • In the State of New York, the neglect statute has been used to challenge both the parenting practice of the... • perpetrator of IPV as well as the adult victim of IPV • perpetrator held responsible due to the likelihood that violence will result in either physical or psychological harm to the children • the adult victim of IPV has been held responsible for their children's exposure if they have not successfully prevented or escaped the violence

Finding of Neglect against Victim of IPV • In many cases, court has required: • proven grounds of abuse or neglect (IPV plus other grounds) or... • evidence of actual impairment to the children.

Issues of Definition • The concept of "exposure" has not been defined within the statute. • Exposure is highly variable in effects, how it is measured, and the impact of mediating and moderating factors.

Issues of Definition • Failure to protect results when a child is not provided a safe environment. • There is however no consensus as to what constitutes a threshold of dangerousness. • What then is a sufficient threshold of exposure to constitute harm to children? • Failure to protect is defined by parental omission but the primary danger to children in IPV cases are the violent acts committed by batterer.

How does Family Court Response to Child Neglect Allegations? • The family court is a rehabilitative setting that aims... • to identify families in crisis • to protect the parties in danger and... • to provide services to the family • In neglect cases, the court is to consider... • the child's best interest as well as... • the reasonable efforts at family preservation

New York StateChild Endangerment Statute • NY Penal Law (P.L. 260.10(1)) criminalizes behavior that endangers the welfare of a child. Relevant language: • Person knowingly acts ... • in a manner that is likely to cause physical, mental or moral harm ... • to a child under seventeen years of age...

Definition of Neglect • Criminal statute relies upon the definition of neglect outlined in the Family Court Act. As a result... • those acts sufficient to establish neglect in civil neglect proceedings potentially would also be sufficient to establish child endangerment.

Who Can be held Accountable under the Criminal Statute? • Unlike the civil statute which creates parental and/or familial liability only, any person who endangers the well-being of a child can be held accountable under the NYS Penal Law.

Child Endangerment and Exposure to IPV • Similar to the civil statute, actual harm does not need to be demonstrated, rather that the likelihood of harm is more than speculative. • Pattern of IPV in child's home could create a substantial risk that child might be a victim of direct or nonaccidental abuse in future. • Exposure to IPV however may be challenged as insufficient in meeting the statute threshold.

How does Criminal Court handle "Child Endangerment" Allegations? • Criminal Court is a punitive setting designed to punish individuals for unlawful acts: • objective is not to mend families... • as a result court is not required to make reasonable efforts to offer preventative services • Court does not hold jurisdiction over child welfare.

Courts' Interpretation in IPV Cases • Courts have interpreted the child endangerment statute broadly to include circumstances where there was a nexus between batterer's conduct and the likelihood of harm to the child's welfare. (People v. Cruz, 152 Misc. 2d 436 (1991)) • Further support has been obtained from the law that requires consideration of IPV in custody and visitation decisions due to the detrimental effects (Ch. 85 of laws of 1996, Art. 1)

Neglect v. Child Endangerment • Neglect statute is elicited more often in IPV exposure cases since a lower evidentiary standard is required to establish neglect than child endangerment. • In some cases, the batterer is not a parent or legal guardian • Child Protection interventions generally fall under the jurisdiction of the civil court.

Proponents of Expanded Use of Maltreatment Statutes • Supporters Rationale: • enhance ability to identify children • greater opportunity to protect children • early interventions will prevent lasting harm to children in violent homes • promotion of consistency in handling cases • sends a message • encourages child welfare and IPV communities to work together

Opponents of Expanded Use of Maltreatment Statutes • Opponents rationale: • deters battered parents from seeking services • fails to recognize parent's protective strategies • state involvement does not always serve the best interest of the children • places blame on the abused parent • the often reflexive removal of children from abused parent's custody can result in greater harm • existing laws can be used to effectively to protect children in their homes

Should Exposure to IPV be defined as Maltreatment? • Exposure to IPV does not constitute maltreatment per se: • The perpetrator of IPV and the adult victim of IPV should not be treated similarly as to whether or not the children were protected from harm • Not all forms of childhood exposure to violence are included as part of a state investigation • Studies have shown that not all exposed children experience any more problems than their unexposed peers

Should Exposure to IPV be defined as Maltreatment? • Exposure to IPV as a form of maltreatment has been supported when the state is addressing the batterer's behavior. • IPV which is often characterized by "the repeated pattern of behavior that conveys to children that they are worthless, unloved, unwanted, only of value in meeting another's needs or seriously threatened with physical or psychological violence" qualifies as maltreatment. (Hart, Brassard, & Karlson, 1996)

Forms of Maltreatment used by Batterer • Terrorized (i.e. threatens to hurt or abandon child; abuse of pets) • Corrupted (i.e. batterer models misogyny, verbal and physical aggression, substance abuse) • Spurned (i.e. perpetrator calls the child names) • Denied emotional responsiveness (i.e. batterer uninvolved; adverse impact on non-abusive parent's interactions with child) • Isolated (i.e. perpetrator isolates family; child isolates self to avoid the batterer) • Neglect of health or educational needs (Holden, 2003)

Should Exposure to IPV be defined as Maltreatment? • Question was legally addressed regarding abused parents in a civil rights class action lawsuit, Nicholson v. Williams. • Suit challenged Child Welfare practices used with the non-offending parent in cases involving IPV. At issue: • Children of battered mothers often removed from home due to their exposure to IPV • Battered mothers, not the batterers, frequently indicated for "failing to protect" their children from exposure to IPV.

Questions raised by Lawsuit • Does the definition of a neglected child under NYS law include instances where the sole allegation is the parent exposed the child to IPV? • Can exposure to IPV constitute risk to child's life or health as defined under NYS law? • Does a child's exposure to IPV suffice to demonstrate that removal is necessary?

Battererd Mothers and Neglect • Findings of the Courts which should be applied as the current standard in the State of New York: • Neglect can not be established based solely on the fact that a parent was a victim of IPV and that the child was exposed to the violence. • Must be an imminent risk of harm and a causal connection of parent's conduct and the harm established • Consideration must be given the dynamics of the abuse as well as the available resources to the battered parent

Battererd Mothers and Neglect • Child's exposure to IPV is not presumptively grounds for removal from a home. • Reasonable efforts to maintain family must be balanced against the need to protect the child from imminent danger. • When the risk of harm can be mitigated by the provision of services (i.e. protection orders) to both the child and the battered parent, these should be part of the reasonable efforts prior to any removal.

Final Considerations • Perpetration of intimate partner violence is illegal - prohibited by criminal law. • Greatest risks to children are from acts committed by batterers. • Charging abused parents deflects accountability from the actions of the batterers.

Exposure to IPV: Is it Child Maltreatment?