March-April 2010 Selected Content
Taking Charge - Larry and Susan Kaseman
Information for Parents About Child Abuse and Neglect Laws and Investigations
Note: The following information offers general perspectives and is not intended and should not be taken as the giving of legal advice.
It's highly unlikely that you and your family will be investigated for child abuse or neglect. However, there are a number of reasons why homeschoolers find it helpful to understand the process of such an investigation and think about how they would respond.
• Since anyone can file a complaint of suspected child abuse or neglect, and since social services is required by statute to consider all the complaints it receives, innocent families are sometimes investigated.
• Homeschoolers may be more likely to have complaints brought against them. Some people don't like homeschooling and feel it is somehow wrong. Others don't understand it. The media and critics of homeschooling have used the very few seemingly legitimate cases of child abuse among families who claimed to be homeschoolers to press for greater regulation of homeschooling. As a result, homeschooling and child abuse are linked in some people's minds.
• A family you know may be investigated.
• Social services has a great deal of power over families. The consequences of an investigation can be very serious, including having your children taken from your home.
• Your initial response can strongly influence the outcome. An appropriate response gives you a much better chance of a good outcome, while an inappropriate one can escalate the problems. Often the best response is to cooperate, up to a point, with the investigation. Reasons to cooperate are discussed below. (Note: Such a response differs from situations that don't concern child abuse and neglect, when it's often appropriate to stand up to authorities and challenge their demands rather than complying.)
• Advance preparation can minimize the negative effects such an incident can have on your family.
This column will discuss things parents need to know, suggestions for how to respond to being notified that you will be investigated, and ways to prepare for and handle an interview.
What Parents Need to Know
• Social service workers have a tremendous amount of authority. For example, in many states a social services worker who has received a complaint has the authority to interview a child in a public setting such as a public school without a parent or guardian's permission.
Social service workers collaborate with police and other law enforcement officials. If you resist letting officials enter your home or interview you, they can petition a juvenile court for a warrant that will allow police to enter your home. If the situation is serious, this can happen in less than an hour.
Statutes defining child abuse and neglect are often very broad and open to many different interpretations which increases the power of social services. For example, Wisconsin statutes include the following:
"What Constitutes Abuse
Physical injury inflicted on child other than by accidental means, sexual abuse/exploitation, emotional damage, (harm to child's psychological or intellectual functioning which is exhibited by anxiety, depression, or other outward behavior) or neglect (failure to provide necessaries of life); on unborn child, habitual lack of self control by expectant mother in use of alcohol and controlled drugs
"Basis of Report of Abuse/neglect
Reasonable cause to suspect that a child has been abused or neglected or has been threatened with abuse or neglect or that abuse or neglect will occur" Source: http://law.findlaw.com/state-laws/child-abuse/wisconsin/
• It is important to know the specifics of statutes in your state. (Like education, child abuse and neglect are governed by state statutes.) Important points are: whether parents can be charged with educational neglect in your state (they can be in 23 states); how abuse and neglect are defined; what procedures social workers, law enforcement officers, and the courts are required to follow; and what authority and power social service workers in your state and/or county have. Also, it's important to make sure you have current information. For information on state statutes, go to http://www.childwelfare.gov/systemwide/laws_policies/state/index.cfm?event=stateStatutes.showSearchForm
• Understand basic procedures that are required in your county and state. Someone makes a complaint; anyone can do so. If the complaint appears to meet the state's definition of child abuse or neglect, social services are required by law to investigate it. They schedule investigations based on urgency of the complaints they receive. However, specific details for these procedures vary from place to place.
• Certain aspects of the normal rules of due process of law do not apply in cases of child abuse and neglect. Public officials are not allowed to reveal the name of the person who made the complaint, so you will not be informed by them. You may or may not know the exact wording of the complaint. You may end up being a witness against yourself. Often you won't have lead time to prepare documentation or a defense prior to an investigation. Although you may be allowed to have an attorney present for the interview(s), this may be difficult to arrange if social services insists on an immediate investigation. Typically, the juvenile courts that deal with child abuse and neglect do not allow for public hearings or trial by jury. Instead, they rule on the basis of testimony from several experts, including Guardian Ad Litems.
• Many professionals are required by statute to report situations that they suspect might involve abuse or neglect. They are subject to fines and/or imprisonment if they fail to report such cases, which may increase the number of complaints filed, some of which prove to be incorrect. For example, Wisconsin statutes require the following people to report suspected abuse and neglect: a physician, coroner, nurse, dentist, chiropractor, acupuncturist, or other medical or mental health professional, social worker, marriage or family therapist, counselor, public assistance worker, school teacher/administrator/counselor, mediator, child care or day care center worker, physical or occupational therapists, EMT, speech-language pathologists, police or law enforcement officer, attorney, member of treatment staff or alcohol/drug abuse counselor.
• Social service workers, law enforcement officers, and other public officials are immune from lawsuits for falsely or inaccurately bringing child abuse and neglect complaints or investigating complaints as long as they have done so in good faith.
Responding to Notification that You Will be Investigated
• Stay calm.
• Recognize power and authority that social service workers and other officials have. Do not appear resistant, defensive, or as if you have something to hide. Such behavior is likely to raise officials' suspicions and make them more determined to investigate the complaint. This is very important, even if you are sure the complaint filed against you is incorrect and you will be able to set the record straight.
• If social services calls or appears at your door, work to delay the interview and investigation so you will have time to prepare. You may be able to buy time by explaining that you are busy homeschooling your children but will answer questions if they call you at a convenient time or set up an appointment. Try to schedule the interview for late afternoon, after school hours, to minimize the chances of homeschooling becoming an issue.
• If the police officer(s) or social service worker(s) are at your door, don't invite them in, but, in most cases, don't refuse them entry if they insist. If you refuse to let them in, they are likely to become more determined. They may leave temporarily, get a search warrant or other documents from the appropriate officials, and return, in which case you will be forced to let them in.
• There are states that have statutes that provide for penalties, including fines, for making false reports or complaints. But since complaints are often highly subjective, this is not an easy remedy and will not normally be an effective way to deal with an initial contact.
Preparing for an Interview or Investigation
• Obtain a copy of the written complaint, if possible. Some states require a written request, so if social services insists that the interview be held soon, you may not have time to get a copy before the interview.
• Learn as much as you can about basic procedures and what the statutes in your state allow and do not allow.
• Make sure you know both your rights and what rights you don't have.
--See the information on due process of law above.
--Usually you have the right to have an attorney present.
--Understand the role and power of Guardian Ad Litems. They are appointed by the court in some cases and can have a very, very strong impact on the outcome of an investigation. They have the powers, duties, and responsibilities of an attorney representing a party in a court case. However, the "party" they represent is not a person or a family but a concept, "the best interest of the child." Do not assume the Guardian Ad Litem is working with you. In addition, Guardian Ad Litems are very much a part of the conventional educational, judicial, and social service systems. Their job is to uphold these systems. It's not surprising that most of them are at least skeptical of homeschooling, and many are opposed.
--Recognize that, especially since the 1960s, important parental rights have been significantly reduced by state statutes, and courts throughout the country have ruled that such statutes are constitutional. For more information, see Martin Guggenheim's What's Wrong with Children's Rights?
• Arrange to have someone you trust present during the interview or investigation, such as an attorney, a close friend, a pastor, etc. In serious cases, it is highly advisable to have an attorney present.
• Anticipate questions you're likely to be asked and decide how you will respond.
• Arrange to make an audio tape of the interview to provide an accurate record and better ensure that officials will abide by state and agency procedures. Social services will probably tape the interview as well, but you may not have access to their tape.
• Work to minimize the problems the interview creates for your children. Unless the complaint clearly requires that your children be interviewed or examined physically, arrange to have them in a separate part of your house or the office where you are being interviewed. Some of the questions you may be asked may cover subject matter children should not be exposed to, and false or inaccurate complaints give your children incorrect information about you. However, make these arrangements in a firm but neutral manner so you do not appear to be defensive or hiding your children.
Handling an Interview or Investigation
• Whatever happens, remain as calm as possible.
• Explain to the social service worker or other official that you have invited the third party to be present to ensure accuracy in what is said by all parties, and that you are going to tape the interview(s). At the beginning of the taping, ask each person to state their name, title, and reason for being present.
• Answer questions in as few words as possible. Do not volunteer any information that is not required. Comments that might seem innocent and above suspicion to you can give investigators new ideas for things to investigate. For example, if you volunteer that your homeschool includes art classes, the investigators might decide they need to follow up to make sure the art involved is appropriate and does not contain undesirable subject matter.
• In states where educational neglect is not part of the definition of abuse and neglect or where the written complaint does not include questions about your children's educations, try to keep questions about your homeschool, curriculum, testing, your qualifications to homeschool, daily schedule, etc. from becoming part of the interview. Point out that the complaint does not include this and/or that the statutes do not authorize social service workers to ask questions about education and that it's unlikely that those questions would be asked of parents whose children attended a public school or a conventional private school.
• If your state statutes allow parents to be charged with educational neglect and it is part of the complaint, answer questions about your homeschool briefly and using as much conventional school terminology (basic subjects, classes, grade levels, etc.) as possible.
For Additional Information
• MassLegalHelp has basic information on key questions related to abuse and neglect claims including "Do I have to talk to the social worker?" and "What happens during an investigation?" The answers to these questions will vary somewhat by state but in general these responses are helpful. http://www.masslegalhelp.org/children-and-families/abuse-neglect-claims-your-rights-and-dss#do
• National Institute of Child Health and Human Development's Techniques for Interviewing Child Abuse Victims http://www.nichd.nih.gov/news/releases/interviewing.cfm
Although it is very unlikely that you will be investigated for child abuse and neglect, it is a good idea to understand how much power and authority social services has and how parents can act to minimize problems caused by such an investigation.
© 2010, Larry and Susan Kaseman