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A Pattern of Failure

Child-welfare advocates and prosecutors weigh in on a bill that would make child neglect a felony in Maryland

Frank Klein
Matthew Joseph of advocates for children and youth considers the pending child-neglect bills "flawed."

By Erin Sullivan | Posted 3/10/2010

Lisae Jordan can tell stories about child abuse and neglect that would make most people's stomachs churn.

Children tied to chairs by parents and not allowed to get up to go to the bathroom, so they're forced to urinate on themselves. Kids locked in closets during the day, or locked out of their homes altogether by their parents, with no place to go.

"There was one child who swallowed a bottle of Tylenol," Jordan says, "and the parents waited several days before seeking medical attention."

Miraculously, the child recovered. A good outcome for the child, of course, but it represented a frustrating conundrum: "If the child had suffered harm, the parents could have been prosecuted under child-abuse laws," she says. "But because the child wasn't physically harmed, the case could not be prosecuted under child-abuse laws. These parents had plenty of money. It was not a case of not having medical insurance or not having the money to go the doctor."

Jordan, legislative counsel for a nonprofit coalition of child-welfare advocacy centers called the Maryland Children's Alliance, says that the parents of neglected children are often not prosecuted for their actions unless real physical injury to a child can be proven, per state law. In some cases where neglect is suspected but does not rise to the level of abuse, parents may face misdemeanor charges, have their children removed by Child Protective Services, or face no repercussions at all.

A pair of bills before the General Assembly this session--HB 962 and SB 757--seek to amend the state's criminal code to make child neglect a felony in the state of Maryland.

Proponents of the law, which include the alliance, the Maryland State's Attorneys Association and the Maryland Emergency Nurses Association, say that Maryland is the only state in the nation without a criminal child-neglect law on the books. They say the bills would give child-protective workers and prosecutors stronger recourse when parents deprive children of essentials. However, it's not as simple as that: Some child-welfare groups warn that while criminalizing neglect sounds good in theory, in practice it could tear families apart, thus causing further harm to traumatized children. In addition, they say, the bill contains dangerous legal loopholes that would let some cases of neglect slide if the parents can claim that it was due to poverty or religious beliefs.

At the moment, neglect is covered in Maryland code in two ways. Child-abuse laws in the state's criminal code make it a felony to cause physical injury to a child as a result of cruel or inhumane treatment. Meanwhile, the family law code allows the state to remove a child deemed to be a "child in need of assistance" (CINA) from families in some neglect situations and prosecute parents for misdemeanor charges for "contributing" to the child's condition.

Neither legal method of dealing with the issue is adequate, says Dermot Garrett, staff attorney for the National Center for the Prosecution of Child Abuse, a program of the National District Attorneys Association (NDAA). The NDAA, a professional organization representing the interests of prosecutors around the nation, is pushing the effort to pass HB 962/SB 757.

"The bills propose that it would be a felony, with a 10-year maximum cap, for patterns of behavior that threaten the physical or mental health of a child by depriving them of basic essentials, such as food or medical care," Garrett says, adding that at the moment, Maryland has stronger definitions and penalties for animal neglect than it does for child neglect. (The state's animal-cruelty laws cover neglect, including deprivation of food, shelter, and water, as a misdemeanor punishable by up to 90 days in jail.)

"What we are seeking to do is define what neglect is," Garrett says. "The vast majority of cases would still be handled through Social Services, but if a pattern of behavior threatens the child's mental or physical health, we want the ability to prosecute those [parents]."

According to the bill, "neglect" would be defined as "a pattern or failure to provide necessary assistance and resources for the basic needs of a minor," including food, clothing, essential medical treatment, shelter, or supervision. A similar bill was introduced in the General Assembly in 2008, but it did not make it through--some child-welfare advocates say this was due to the concerns about prosecuting poor parents for not being able to afford proper care for their kids. This year's bill makes exclusions for neglect that occurs "as a result of a lack of financial resources" or "failure to provide specified medical treatment that conflicts with the parent's or guardian's bona fide religious beliefs and practices."

"If the neglect that occurred was owing solely to poverty, that would be a defense," Garrett says. "We have a religious exemption built into the bill so if it was due to religious reasons, that would be a defense."

Those defenses--particularly the one pertaining to religion--are troubling to Julie Drake, division chief of the felony family violence division of the Baltimore City State's Attorneys Office. Drake was the lead prosecutor in the well-known Javon Thompson case, in which cult members withheld food and water from a 1-year-old who refused to say "amen" at meals. Three adults were found guilty of second-degree murder and child abuse in that case.

"But under HB 962, every one of those cult members could have argued successfully, because I have no reason to believe their beliefs weren't sincere, that they withheld food and water based on a sincere religious belief," says Drake, who points out that under current Maryland law, freedom to hold a religious belief is absolute, but freedom to act on it is not. "I think that's a very dangerous road to go down."

The Coalition to Protect Maryland's Children--an umbrella organization that includes a number of child-welfare advocates, including the Public Justice Center, Advocates for Children and Youth, and Prevent Child Abuse Maryland--has also come out in opposition of HB 962/SB 757 as a "flawed" bill. According to Matthew Joseph, executive director for Advocates for Children and Youth, the problem with the bill is that criminalizing neglect prevents social workers from being able to address and resolve it. Instead, he says, advocates worry that families will be broken up and more children will be sent to foster care when the neglect could have been remediated by working with the family instead.

"The Maryland Department of Human Resources is strengthening family-preservation efforts and instituting family-centered case practice," Joseph says in written testimony presented to the state Senate on March 3. "This bill will set back those efforts. Caseworkers investigating allegations of neglect will find even more hostile families, fearing criminal prosecution. The goal is to get the families to recognize their problems, identify solutions and implement them. The bill will also make it less likely for family members to report potential neglect cases, fearing that it will mean the permanent dissolution of the family rather than getting services that help the family stay together."

Joseph says the coalition supports child-welfare efforts that emphasize keeping parents and children together while social and child-protective service workers address problems that may be leading to neglect situations.

"There's a much stronger case to be made for trying to preserve the family and rehabilitate the parent," he says. "Much of the neglect taking place is due to substance abuse. So you're saying that rather than provide substance-abuse treatment to the parent, you want the parent to sit in jail. It just doesn't make sense. The goal of a good child-welfare system is both to protect child welfare and to preserve family. Because the best place for a child to be is with the family."

Joseph suggests that, rather than criminalizing all neglect--some of which is not egregious and can be addressed without criminalizing parents--the state strengthen its reckless-endangerment statute, which is currently only a misdemeanor, to make it a felony.

The Maryland Children's Alliance's Lisae Jordan says the bill is not intended to prosecute all cases of child neglect: "This is about parents who have the ability to take care of their children and they don't," she says. "Currently, you can be prosecuted for neglecting your dog and not your child."

But Drake says that's not entirely true: Working prosecutors often use the state's child-abuse laws and CINA statutes to prosecute neglect.

"What we see in Baltimore City is that neglect typically results in some physical symptom or it doesn't," Drake says. "If it does, and it's worth prosecuting, we handle it as abuse--as a physical injury that occurs as a result of cruel and inhumane treatment."

If there is no physical injury, she says, prosecutors may choose to prosecute under the CINA statute. Drake says that in reality, the tools available to prosecutors now probably offer more options for prosecution than there would be under HB 962/SB 757.

"Let me give you a typical kind of contributing-to-CINA case," she says. "A mother is a drug addict and she's out in the middle of the night, looking for drugs or partying, and you've got three little kids locked in an apartment all by themselves, maybe in conditions that aren't optimal for children. That wouldn't necessarily represent a pattern, so it wouldn't be prosecutable under 962, but it would be under contributing to CINA."

Drake, who says she believes the bills' drafters have good intentions, is writing a letter on behalf of the State's Attorneys Office opposing the bills.

Nancy Lineman, spokeswoman for the Maryland Department of Human Resources (DHR), says her agency supports the bill, but "we're going to recommend an amendment that the religious exemption should be removed."

When asked if there was any concern about the bill's potential to disrupt families, she says that's always of concern to the DHR.

"Any time a child is removed from a family is deeply concerning and disruptive and a difficult time for everyone," she says. "But our interest is to ensure the safety of children throughout the state and if they have to come into care, that's what has to happen."

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