THE LAW
AND
THE ABUSED
AND
NEGLECTED
CHILD
783
Jacob 1. Isaacs, LL.B.*
Chairman, Committee on Juvenile Law and Procedures, American Bar Association; Chairman-Flem 1,
Section of Family Law, American Bar Association; Consultant on the Family Court to Judicial Conference of New York State, New York, New York
T
IWHE are four broad areas of the lawwhich impinge on the general field of
child abuse and child neglect.
First are those laws which mandate the
reporting of suspected cases of child abuse.
They are found in all 50 states of the Union
at this time.
The second are the traditional provisions
of the penal law which make the parents or
guardians, who are guilty of abusive
physi-cal conduct toward children, amenable to
the normal criminal penalties.
Third are the recently enacted provisions
of our Family Court Act in New York
which establish the comprehensive
proce-dure for the processing of child abuse cases
on a civil basis.
Finally, there are the provisions of law
that establish various protective services
and designate the public and private
agen-cies to deal with the problems.
I shall limit myself primarily to two areas
of the law, namely reporting laws and what
is now known as the child protective
pro-ceedings in the Family Court.
I’ll do this in the form of posing
ques-tions, those questions that are most
com-monly raised about these matters, amid then
attempting to answer them.
THE REPORTING LAWS
New York has one of the most
compre-hensive reporting laws in its Social Services
Law. In New York, any physician, surgeon,
medical examiner, coroner, dentist,
osteo-path, optometrist, chiropractor, podiatrist,
resident, intern, registered nurse, hospital
personnel engaged in the admission,
exami-nation, care or treatment of persons, or
Christian Science practitioners, having
rea-sonable cause to suspect that a child under
16 years of age has had serious physical
in-* Deceased.
jury inflicted on him other than by
acciden-tal means, or whose condition indicates
some other forni of abuse, is required to
re-port to the City Department of Social
Ser-vices. In the hospitals, for standardization
of practice, the Law provides that where
medical personnel have a suspected case of
child abuse, notification should be given in
the first instance to the person in charge of
the hospital or someone designated by the
person in charge of the hospital.
In addition to the categories of medical
personnel referred to, any social services
worker, or school official having reasonable
grounds to suspect a case of child abuse or
serious neglect, is also required by law to
report.
The Law contemplates that these reports
will be made orally at first and will be
followed within 48 hours by a written
re-port on a specified form, giving data as to
the background of the family and the child
and the nature and circunistances of the
abuse.
One of the principal problems that
con-fronted hospitals and physicians prior to
re-cent legislation was the inability under
ex-isting law to retain physical custody of the
child who was suspected of having been
abused, when the parents demanded
dis-charge. To meet this situation, legislation
passed in 1969 and 1970, specifically
autho-rized any hospital which has in its charge a
child suspected of being abused, to hold
that child in its custody until the next
regu-lar workday session of that part of the
Fam-ily Court which is charged with processing
child abuse cases.
This custody may be retained whether or
not additional medical treatment is
re-quired during that period and despite the
demand or request of the parent for the
re-turn or discharge of this child. The normal
784
Unfortunately, as is often the case in
leg-procedure under such circumstances is to
promptly notify the City Department of
So-cial Services who has the responsibility at
the next Session of Court, to file a child
abuse petition with the Court and seek to
obtain an order permitting continued
re-mand of the child in the custody of the
hos-pital or some other appropriate facility.
Similarly, individual treating physicians
are given express statutory authority to
re-tain custody of a child suspected of having
been abused until such time as that child
can be turned over to the police or other
appropriate authority.
If an individual physician not operating
in the context of the hospital suspects a
case of child abuse aiid if there is a demand
for immediate return of the child by the
parents, thus subjecting the child to
possi-ble further injury, probably the best
proce-dure would be for the individual physician
to cause the child to be admitted to a
hos-pital, and thus to have the hospital take
over the custodial situation from then on.
One of the main questions asked is
whether a person who files such a child
abuse report subjects himself to any
possi-ble liability if it should turn out, for
exam-ple, that the charge of child abuse cannot
be sustained. I don’t thiiik under existing
law there is any real danger of that any
more. Any person or institution
participat-ing in good faith in the making of a child
abuse report is granted express statutory
immunity froni any liability whether it is
civil or criminal that otherwise niight have
been incurred or imposed as the result of
the making of such a report.
Another question that is frequently raised
is whether the usual physician-patient
priv-ilege operates to prevent physician or
other medical personnel from filing a child
abuse report? From the point of view of
law, at least, the answer is clearly and
une-quivocally no. Neither the physician-patient
privilege nor the privilege attaching
confi-dential communications between husband
and wife are ground for excluding evidence
regarding a child’s injury, abuse, or
mis-treatment in any judicial proceeding
result-ing from a report under the Social Services
Law.
THE PENAL LAW
There are areas of the criminal law which
have a direct impact on child abuse cases.
Certainly, a parent can be prosecuted in
criminal courts under the Penal Law for
as-sault, battery, manslaughter, murder, or
other offenses committed against the child.
There is also a provision under the New
York Penal Law entitled Endangering the
Welfare of the Child which makes it a
criminal offense for any person to
know-ingly act in a manner likely to be injurious
to the physical, mental, or moral welfare of
a child.
A parent can be guilty of criminally
en-dangering a child’s welfare if the parent fails
to exercise reasonable diligence in the
con-trol of the child, or to prevent him from
be-coming an abused child. However, most
au-thorities agree that criminal sanctions are
largely ineffective in preventing child abuse
or even in protecting the child during the
pendency of the legal proceedings.
There are a number of considerations
which militate against use of criminal
pro-cedures. The necessity of proving guilt
be-yond a reasonable doubt and proving very
specific intent in many such crimes will
of-ten effectively preclude successful
prosecu-tion. Moreover, the criminal courts have
very inadequate procedural power or
facili-ties for providing interim protection for a
child or to undertake effective
rehabilita-tive measures when indicated for the
par-ents.
THE CHILD PROTECTIVE PROCEEDING
It is for these reasons that during the last
few years, the New York State Legislature
enacted what is probably the most
compre-hensive procedural statute dealing with the
handling of child abuse cases of any state in
the country. Two years ago, the first statute
was enacted in an hysteria which followed
the now ill-famed Felumero case in New
islation 1)0111 111 the heat of newspaper
headlines, the first statute enacted was
de-fective in many respects. It bore the marks of hysteria and perhaps, to a certain extent, overemphasis on the punitive consequences of the offense. There was considerable
criti-ciSm of the statute as it first emerged from
the legislature two years ago.
Fortunately, after the passage of a year,
when tempers had cooled and there was
op)ortunity for a sober second thought, the
legislature drastically revamped the law
and enacted a completely new Article of
the Family Court Act known as the Child
Protective Proceeding. This new Article X,
of the Faniilv Court Act, I think attempts to
assimilate much of the knowledge which
has already been presented to you this
morning. In effect, it brings into the legal
ioc’ much of the medical and the
behav-i()ral science which has been developed
over years.
The high spots of this new law will be of
some significance to von.
First, how is an abused child defined by
the law? The new law defines an abused
child as one who is less than 16 years of
age, whose paremits or other guardian
in-flicts or allows to he inflicted on the child
physical injury by other than accidental
means, which causes or creates a
substan-tial risk of death or serious protracted
clis-figurement or protracted impairment to
physical or emotional health, or protracted
loss or impairment to the function of any
bodily organ, or (and this is niost
impor-taut) creates or allows to be created a
sub-stantial risk of such physical injury other
than by accidental means, or permits or
al-lows to be permitted an act of sexual
abuse against the child.
This definition encompasses inaction by
the parelit resulting in physical injury or
substantial risk of physical injury as well as
affirmative acts by the parent and,
there-fore, the definition, although limited to
eases of serious physical injury or risk of
se-rious physical injury, encompasses passivity
as well activity by the parents.
Cases involving deprivation of food,
clothing, shelter, education, and medical
care or various forms of parental
guardian-ship, are dealt with not as child abuse but
under the statutory definition of neglect.
However, one of the significant aspects of
the legislation enacted during the recent
session of the legislature, has been that ne-glect and child abuse are now treated in the same proceeding.
The joining of child abuse and neglect
proceedings in a single proceeding provides
a great deal of added flexibility. There is no
difference whatsoever insofar as the powers
of the court are concerned, whether the
parent is charged with neglect or with child
abuse. Allegations of neglect niay he
in-cluded in the same petition as those of child
abuse, and once the case is before the court,
the court has broad power to amend the
pe-tition one way or the other to conform with
the proof as it is introduced.
Thus, if abuse is alleged in the petition,
and facts are adduced proving merely
ne-glect, the court can aniend the petition to
allege neglect. The lack of difference in
dis-position of powers of the court in dealing
with these cases, alleviates the difficulties
inherent in that operative phrase in
defin-ing child abuse “b other than accidental
means.” \Vhether means are accidental or
merely the result of negligence, the court
can effectively deal with the problem.
How is a child abuse proceeding
ini-tiated?
It is initiated merely by the filing with
the court of what is called the Petition or
Complaint, w’hich states in ‘hat respects
the child is alleged to have been abused.
There is a broad range of persons who
are specifically authorized by the statute to
initiate a proceeding: a parent or any other
person interested in the child, a duly
autho-rized agency such as the Society for the
Prevention of Cruelty to Children or sonic
other social agency in the community, a
po-lice officer, any person having knowledge or
information which convinces him that a
child is abused or neglected, or a
Corpora-tion Counsel of the city of New York, or any
file a petition in the face of facts adduced.
In New York City most petitions are filed
by the City Department of Social Services
because that is the agency charged by our
reporting laws with receiving the initial
re-port of abuse. However, other cases are
ini-tiated by hospitals, other parents, and
pri-‘ate individuals.
The problem that arises almost
immedi-ately when a case of suspected abuse is
found, is what can be done immediately to
protect the child from further harm? For
example, may anyone reniove a suspected
abused child from his home without even a
court order? The answer is yes. In certain
emergency circumstances, a peace officer,
that is a policeman or an agent of a duly
authorized agency or association such as a
worker for the Society for the Prevention of
Cruelty to Children, can actually remove a
child from its residence, even if the parents
don’t consent, if the circumstances indicate
that there is imminent danger to the child’s
life or health, and there isn’t time enough to
apply for a court order.
Similarly, a physician treating the child
can retain custody and in effect, remove the
child from its home if these emergency
con-ditions exist.
If the person is a treating physician
how-ever, and the child is, or will be admitted to
a hospital, the physician can take the child
to the hospital, without first taking him to a
court facility for further judicial direction.
The person removing the child must
make every reasonable effort to inform the
parent or the guardian as to where the
child has been taken. If no child abuse
re-port has been previously filed, he must file a
child abuse report. The statute specifically
immunizes the conduct of people who
effect such eniergency removal if the
re-moval is done in good faith and not for the
purpose of malice or for some improper
purpose.
Sometimes the matter comes to the
atten-tion of the court before a formal proceeding
has commenced in the court, and the
ques-tion arises, can the court itself effect an
emergency or temporary removal of the
child from his home before a fornial
pro-ceeding is started?
Yes, the court can enter an order
direct-ing a temporary removal even before a
peti-tion is filed if the parents have refused to
consent to removal, there is imminent
dan-ger to the child’s life or health, and there
isn’t time enough to file a petition and to
hold a full-scale hearing.
At the same time, the court has express
power to enter an order authorizing the
physican or a hospital to provide
emer-gency medical or surgical proceedings even
before the formal child abuse proceeding is
filed if it deems that such procedures are
necessary to safeguard the life or health of
the child.
Once a petition is filed, and the case is
actually before the court, the statute
man-dates that the court must hold a prompt
hearing to determine whether the child’s
in-terests require protection during the
pen-dency of the proceedings. In other words, it
must determine whether it can permit the
child to remain at home under some degree
of supervision, or under some court order,
whether removal of a child is required
dur-ing the pendency of the proceeding,
whether any protective measure is required
to ensure that the child is not further
jeop-ardized, while the actual legal process is
taking its course.
Sometimes you read in the newspaper
that there is a criminal case pending,
in-volving some parents, and you may also
read that there is something going on in the
Family Court. It may be confusing as to
how proceedings can go on at two courts at
one time. The act specifically contemplates
the possibility of concurrent proceedings in
the Criminal Court, recognizing the
defi-ciencies of the Criminal Court to protect
the child and perhaps even provide
rehabil-itative treatment during the pendency of
criminal proceedings.
The legislature has directed that child
abuse cases be processed in a separate part
ensure that there was one specific part of
the facility of the court that was charged
with the responsibility of giving priority to
handling of child abuse cases. If any public
or private agency or official dealing with
the court brings a case into court, the court
personnel are supposed to know that it goes
to a specific place where the case will not
languish in the normal tumoils or
bureau-cratic delay.
Another specific aspect of the new law, is
that it niandates that in every single case of
alleged child abuse, a law guardian or
law-\er must be appointed whose sole interest is
to represent the interests of a child who is
the sul)ject of the proceedings. This lawyer
is not representing the parents, or any other
interested party in the proceedings.
One of the imbalances, however, that
ex-isted prior to the new law was that there
was no one really to give effective voice to
the complainant or person bringing the
matter before the court. One of the major
innovations of the new law has been to
mandate, in effect, that in New York City at
least, the Corporation Counsel’s office
ap-pear to present the petition on behalf of the
plaintiff. It doesn’t mean that the
Corpora-tion Counsel acts in the form of a private
attorne’ for the complainant. It means that
in a position somewhat similar to the
Dis-trict Attorney in handling criminal cases,
the Corporation Counsel is responsible for
marshalling and presenting in an orderly
and logical fashion the facts tending to
sub-stantiate the charges of child abuse or
ne-glect.
Is there any form of medical examination
which is mandated by the statute? The
an-swer is definitely yes. The act requires that
in ever’ case involving suspected abuse, the
court cause a medical examination to be
made hs’ the physician appointed or
desig-nated by the court. If the petition is already
based upon a comprehensive medical
exam-ination. of course, the court can waive that
requirement. The statute does require, as
Dr. Fontana has indicated, that the
physi-cian arrange to have color photographs
taken as soon as practical of the areas of
trauma visible on the child and also, if
indi-cated, arrange to have radiological
exami-nation performed on the child. It should be
remembered that judges get these cases and
that they are heard very often a
consider-able number of weeks following the event.
Judges are not physicians, and therefore,
the more graphic the evidence that can be
presented to them the more likely there will
l)e effective results during the course of
ju-dicial proceedings. The two most effective
tools are the colored photograph of the area
of the trauma and radiological exaniination.
When the case comes into the Family
Court, it usually proceeds in two distinct
stages. The first is called “the fact-finding
stage, and that is not too dissimilar from
proceedings in the Criminal Court. The
purpose of that stage is primarily to
deter-niine whether the acts alleged have been, in
fact, committed and whether these acts
re-suIt from the intentional or negligent
con-duct of the parent.
The second stage of the proceeding is
more socially oriented in nature, and is
called “the dispositional stage.” In this
stage of the proceeding, a search is made to
determine what therapeutic measures may
he made to rehabilitate the family and
what temporary or permanent protective
measures are required to safeguard the
health of the child during this period of
re-habilitation.
Medical techniques very often allow the
time of injury to he estimated with
consid-erable accuracy, even to permit hypotheses
as to cause of injury. They normally can’t
identify with any great degree of
particu-larity, the circumstances surrounding the
injurv or even, and more important, the
mo-tivating factors that gave impulsion to the
responsible individual. To link the child’s
injuries with illegal conduct on the part of
parents often requires evidence that is
diffi-cult to acquire. Therefore, in recognition of
this peculiar difficu1ty and the importance
of not letting procedural technicality
pro-788
cessing of child abuse cases, the legislature
in one of the most innovative phases of its
work, changed the law of evidence in
deal-ing with child abuse in certain important
respects.
One of the most iniportant things they
did, in effect, was to assimilate by statute,
into the law of child abuse, a doctrine
known to lawyers as “res ipsa loquitor.”
Loosely translated this means “the facts
speak for themselves.”
Under this doctrine, proof of injury or
condition which would ordinarily not be
sustained or exist except by reason of acts
or omissions of the parent, is accepted as
prima faciae evidence of child al)use or
ne-glect.
Thus, if a physician can conic into court
and testify that injuries are of such a nature
that they indicate the likelihood of child
abuse under normal circumstances, that
evi-dence is sufficient to enable the court to act
in the absence of rebutting evidence
intro-duced by the parents.
Some cases of child abuse involve more
than one sibling in the same family. The
statute permits proof of neglect or abuse as
it applies to one sihlin to he used in cases
involving some other sibling in the family.
Previous statements made by the child to
physicians and social workers relating to
any allegations of abuse are admissable in
evidence, even though they must be
corrob-orated by some independent evidence
other than the statement itself.
A child abuse report fl’ed pursuant to law
is admissable in evidence, with the court
having to give it whatever weight it thinks
appropriate tinder the circumstances.
To facilitate the use of hospital records,
the law now provides that any written
re-cords or photographs which are made or
taken iw a hospital in the normal course of
its medical operations, may he admissable
in evidence and may he used in the court
merely upon the certification of the official
of the hospital. This certification must state
that the particular material was, in effect,
developed during the regular course of the
hospital’s activities, that it represents an
ac-curate reproduction of the hospital’s
re-cords in this respect. This saves a great deal
of time for hospital personnel who might
otherwise have to come to the court and
ac-tually physically identify the material and
certify to its authenticity.
As with reports, the nornial statutory or
common law privileges that apply to the
physician-patient relationship, or the
hus-band-wife relationship do not apply when
evidence is sought in a child abuse
pro-ceeding. The physician-patient privilege
cannot prevent a physician from giving
evi-dence relative to the issue of abuse.
DRUG ABUSE AND CHILD ABUSE
The growing incidence of drug use and
abuse and its correlation with child abuse
and neglect, has motivated the legislature
to act in that field. Two years ago, it
en-acted a law which, in effect, said that mere
proof of addiction was sufficient to establish
a prima faciae case of child abuse. This was
deemed too extreme. The law was changed
in the last session of the Legislature to
pro-vide that if a person uses a drug, to the
ex-tent that that drug does have or would
ordinarily have the effect of producing in
the user a substantial state of stupor,
hallu-cination, disorientation or incompetence or
impairment of mental facuhities, that fact
alone is prima faciae evidence, not of abuse.
but of neglect.
This is a difficult presumption to use
be-cause you first have to show that the person
has, in effect, used the particular drug.
Then you have to show that that particular
drug did or would ordinarily have the effect
of producing this type of mental effect,
be-fore you could establish any sort of prima
faciae case of neglect, stemming from the
use of drugs.
DISPOSITION OF THE CASE
Once it has been determined that a
par-ent has abused a child, there is a fairly
broad range of disnositional alternatives
open to the Family Court. If it is a case of
niinor abuse where the court is convinced
or-der to protect the child; it can suspend
judgment imposing by order various terms
and conditions upon which judgment is
sus-pended. It can return the child to the home,
subject to sonic sort of continuing probation
or other supervision. It can issue what is
known as an order of protection, which
pre-scribes specific forms of conduct to be
followed or to be avoided by the offending
paremit. In cases where temporary or
perma-nent removal froni the home is indicated, it
can remove the child from the home, place
the child in the custody of a relative or
other suitable individual, with the Local
Commissioner of \Velfare, and so forth.
The law is flexible. It recognizes that
re-habilitative treatment may produce changes
over a Period of time which permit, for
ex-ample, the child who has been removed
from the home and whose removal is
con-tinued after the initial end of the
proceed-ing, to be returned home.
The law expressly provides for
subse-quent rehearing and application to be made
to the court for a change of disposition
when the circumstances require it.
The law, itself, I must caution you,
repre-sents only a beginning approach toward
dealing with a very difficult problem.
Over-crowding in the courts, lack of suitable
placement facilities, lack of appropriate
medical and psychiatric diagnostic
facili-ties, often make the law a mockery in
prac-tice. The law merely provides a framework
by which society can intervene to protect
the child and in some cases to rehabilitate
the family. Without the comniunity services
and facilities, however, much of the law is
meaningless.
PANEL DISCUSSION
Dii. J0YNER: It is a pleasure to have on
our p1nd’l not only the speakers of the
morning but also Dr. C. Henry Kempe.
Dr. Kempe, is there anything that you
would like to add at this time?
Da. KEMPE: Perhaps only two points.
One is that, as Dr. Fontana so ably showed,
clinical diagnosis of the battered child is
not at all difficult to make. The subtle, early
prebattering physical findings may be
diffi-cult. We miss many chances in the newborn
nursery, and in early well-child care, to
as-sess minimal injuries such as bites and
mi-nor bruises because they are so minor. We
will have to develop training among
physi-cians, medical students, nurses, and health
workers in this area.
The second point I will make brings me
home really, because problems here, in
spite of your size, are exactly the same as in
Colorado no matter what you all think. Mr.
Isaacs pointed our how the law pushes for
objective evidence, colored photographs,
and x-rays. That is the same problem in
Colorado. Our police want to have good
fractures. They call them “good fractures.”
They look for big bruises that show up well
on Thotographis. The fact is, however, that
some of our worst injured children who
have shaking injuries of the head, may have
severe brain damage with massive bleeds in
the absence of any bruises or fractures.
Our police and courts are not terribly
in-terested in psychiatric information. Again,
we feel the entire case must be presented to
the court, including the pyschiatric
evalua-tion of parents; how they were raised, how
they are, and an accurate diagnosis of
fani-ily pathology. I would just plead for the
whole data base being there, not just the
x-ray or the colored picture. That, I think, is
going to be the biggest next step to
over-come.
Dn. JOYNER: Dr. Fontana, how do you
feel about the adequacy of the protection of
children, both short- and long-term with
the present procedures?
DR. FONTANA: I think we’ve made a good
many errors in our previous child abuse
laws in New York City, but I think the one
we have now, has come about as close as
we could humanly come to protecting
chil-dren and helping parents.
The law itself is just the first step. It is
what happens after the child is reported
790
resources and the trained personnel to look
into the problem and follow through, the
mere reporting of children as neglected or
abused is going to be a futile exercise, as it
has been these past many years.
DR. JOYNER: Does the court have enough
facilities to take on more cases in the way
that they should?
MR. Iscs: The answer to the question is
no, it doesn’t have adequate facilities and
one of the anomalies of the Child Abuse
Law with all its emphasis on child
protec-tion, was that it wasn’t accompanied by any
physical appropriation to implement the
mandate.
Under existing budgetary conditions,
there is a job freeze so that if someone
should retire, they cannot even fill the
exist-ing position.
I have another comment. I think the
court can be more cooperative with
physi-cians, social workers, and teachers who
come to court for testimony, by not having
them wait around all day to make their one
point and then leave.
In many cases, this feeling of delay
pre-vents the reporting of some cases. I
under-stand that there has been a deliberate
at-tempt to minimize the waiting time for
those giving medical testimony.
DR. JOYNER: Dr. Heifer, do you think
that it will be useful to organize a center or
institute for further exploration of the
prob-lem?
DR. HELFER: If New York is going to
pro-gress in this area, in addition to providing
excellence in care, it also must train various
types of people who can deliver care to
those families who injure or abuse their
children. For this type of training, study,
research, and service, a center needs to be
developed.
DR. JOYNER: Mr. Isaacs, where can a
copy of the Family Court Laws, or the laws
for child abuse and neglect be obtained?
MR. Iscs: The actual provisions are
found in Article X of the Family Court Act,
which is published by several firms,
includ-ing McKinney.
The Mayor’s Task Force drew up the
Physicians’ and Social Workers’
Responsi-biiity under the New Family Court Act.
The city promised they would publish it
and send it to all concerned parties, but this
has gone the way of all other good things,
through budgetary conditions.
DR. J0YNER: Mr. Isaacs, is the reporting
agency, the hospital for example, obligated
legally to share with the parent the fact
that they are reporting the case?
MR. IsAAcs: There is no legal
require-ment that they share that information with
the parent. This becomes a matter of a kind
of therapeutic relationship. I believe Dr.
Heifer suggested that as part of the
thera-peutic relationship, it may be advisable for
the treating physician to indicate to the
parent that a report is being made and why
and what the process will be after that. Am
I correct, Dr. Heifer?
DR. HIurER: It would be unfortunate if
parents are not told. To put a Protective
Services Worker in a position of saying to
the parents for the first time: “The hospital
reported this as possible abuse and
neglect,” is unfortunate for the worker and
very upsetting to the parent. If the hospital
wants to develop any kind of therapeutic
relationship with the parent it must relate
this information to them.
DR. JoYrnin: Dr. Fontana, there is some
question that transferring care of an abused
child to a foster family will permit the child
to develop normally. Should physical and
mental normalcy be distinguished? Have
there been any follow-up studies done
con-cerning what happens to abused children?
DR. FONTANA: These are difficult
ques-tions to answer. I think that the sooner you
can take a child out of the situation that is
physically and mentally life-threatening,
the greater are that child’s chances of being
salvaged.
I want to make it clear, however, that we
are all interested in the preservation of the
home and preservation of the family unit.
As social workers and physicians, however,
we are aware that some homes are beyond
preservation. Keeping a child in such a
home is going to do irreparable damage to
him. I believe that if a child is being
SUPPLEMENT
the environment as soon as possible. If a
foster home is the place that the child is
go-ing to be put into, I think that would be
bet-ter for him than his battering home
envi-ronment.
Dn. J0YNER: Dr. Kempe, what do you
feel about that?
DR. KEMPE: I think the diagnostic
as-sessment that mothering or parenting is
go-ing to turn on is a difficult one. I don’t think
any person can do it very quickly. We’ve all
agreed that separation as such, is essential
early on. By definition hospitalization is
separation. Even for an overnight or
two-day admission, hospitalization is often the
therapeutic way because you can then get
time to figure out what’s going on.
The separation is essential in child abuse
diagnosis even if the injury is trivial and the separation may just be in the hospital. How
long it should last, I don’t know. Eighty
percent of our patients have their children
back in eighit months’ time. We think that’s
a very good record actually, and of those
we have under treatment, as I will say this
afternoon, we have not had a child
rebat-tered.
By the sanie token 20% don’t have their
children back in eight months and 10% of
all our filings result in permanent
termina-tion of parental rights. Terminating
paren-tal rights permanently is a very drastic step
in American law, but we feel that there are
such situations. They are when parents are
psychotic or have an aggressive
psycho-pathic personality, or scapegoat one
partic-ular child. There are a number of situations
where we know it doesn’t work. We
shouldn’t be spending five or six years
throwing children at their parents. Give it
up early.
I think we should have some optimism
about the 80% and some pessimism about
the 20% and then you have to figure out
which is which.
DR. JOYNER: When does spanking
be-come abuse?
DR. HELFER: I do not become concerned
when a 4-year-old is spanked to some
de-gree, and the mother does not demonstrate
any of the items I mentioned in my talk.
Such a mother does not have the potential
to injure a small child.
The age of the child is important. I think
it’s quite clear that babies are not spanked.
Barbara Korsch asked mothers in a
Califor-nia Well Baby Clinic, “How do you punish
your babies?” The great majority of women
would say, “Our baby doesn’t need to be
punished.” Some of the women, however,
would say, “I would spank them.”
The degree of injury also is important.
Even though the injury may be justified in
the parent’s mind, if it causes physical
dam-age it is significant.
DR. JOYNER: Dr. Solomon, in your work
have you encountered any cultural patterns
of physical punishment?
I can recall several instances where, if for
instance a child stole, it was the standard
procedure to burn his hand, and the degree
of burning determined whether it was
abuse or not. Are there other cultural
pat-terns of discipline that you are aware of?
DR. SOLOMON: I haven’t come across one
cultural pattern that dealt with very small
babies. There were cultural patterns for
older children. There have been extensive
reports on the amount of corporal
punish-ment not given by parents but in school
sys-tems as, for example, in England and
Ire-land.
In going through the New York
munici-pal hospitals, I was concerned to find that
about 70% of the house staff are not
Ameri-can. Very often they have used their own
standards of what constitutes child abuse
and applied it to the children in this
coun-try. This should be looked into at least.
Such physicians are also at a disadvantage
in testifying in court because of their
differ-ent cultural background. In addition, many
are not state-licensed physicians and this
also hurts their qualifications as being
wit-nesses.
DR. J0YNER: If one abused child is
re-moved from the family, are the other
chil-dren endangered?
DR. Hia.mt: Given a family who has the
likelihood and potential to abuse one child,
if you take that child out of the home, then
End of morning discussion.
children. Not all of the remaining children
are at risk; the child who may be most at
risk may be unborn. You must know the
mother and father very well, and
under-stand how they see their other children and
what the other children are doing or not
doing for them.
Families that have children removed
cer-tainly cannot be left without some kind of ongoing care.
DR. JOYNER: There have been several
questions on the infants of addicted
moth-ers. Under what conditions would you
al-low one of these infants to go home with a
mother who is admittedly addicted?
l)n. FONTANA: That’s another difficult
(luestion. My personal feeling, from what
we have seen at St. Vincent’s Hospital, is
that a drug-addicted mother is unable to
take care of herself. She is in urgent need of
social help and medical intervention, crisis
intervention if you will. Her child should be
retained in the hospital until you are sure
that the mother can take care of the child.
\Vc should not wait until the child is
ne-glected or abused.
Dn. HELFER: We could have an
anala-gous situation where a parent feels that she
is going to h)eat her child. She goes to a
De-parttneiit of Social Services for help or
as-sistance. Since no abuse has been
commit-ted, the worker would say, “We can’t help
you now, hut if you are reported as having
abused your child, then we can become
in-volved.”
Dn. JOYNIR: As I understood it froni the
law that has l)een most recently revised,
ad-diction per se is not a cause of neglect. It is
only if neglect results from the addiction. Is
that essentially correct?
MR. ISAACS: The law as enacted in its
ini-tial form two years ago, provided, in effect,
that proof of actual addiction constituted
prime faciae evidence of child abuse. As
amended last year it now merely provides
that if you can show that someone merely
uses or is likely to have used a drug that
has certain hallucinatory or mind-deranging
effects, this is not proof of abuse anymore,
but rather proof of neglect sufficient
enough to throw the burden on the mother
to establish that her children are not
suffer-ing as a result of her condition.
DR. JOYNER: So wouldn’t it be the 1)rOOf
of functionality niore than anything else?
MR. ISAACS: Yes, I think it would. Once
you establish that she was a user on a
regu-lar basis and the drug was of a type which
was likely to produce functional
derange-ment, the burden would be thrown on the
mother to establish that her condition was
in no way interfering with the proper care
or rearing of the children.
DR. JOYNER: I think it is essential to look
at the alternatives. If you take all of the
ba-bies from all of the mothers who are drug
abusers or addicted, I don’t know where
you would put them at the present time. I
think you have to look at the alternatives
and take the course that presents the lesser
evil.
If a mother is on voluntary methadone
maintenance, what about her baby?
We are currently assuming that since the
mother wants the baby, we will let her go