Child Abuse: Guilty Until Proven Innocent or Legalized Governmental Child Abuse
ABSTRACT: Statistics on the outcome of cases investigated in
Florida indicate that in only a very small proportion of the reported
cases was it ultimately determined that the parents had abused their
children. Although the stated goal of child protection agencies is
to keep the family united, in reality children are often quickly removed
and placed into foster care following an investigation that is traumatic
for parents and children alike, especially when there was no
abuse. Suggestions are made for improving the way the system
It should be every person's legal responsibility to report any child
they may reasonably suspect to be abused. However, the consequence
of a child abuse report in most states is that the parents may be
prosecuted and/or their children taken away with much less evidence than
would be required for a conviction in a criminal court. The focus
of this paper is to discuss some child abuse issues including the
system's abuse of power (Burriss, 1991) and to make recommendations for
We first must understand the definition of abuse and neglect (note
that parents are not educated as to this definition and its
consequences). For example, according to the Florida Statutes 4
(1989, chapters 623-960) criminal abuse and neglect is defined as:
|827.04 Child abuse.
||Whoever, willfully or by culpable negligence, deprives a child
of, or allows a child to be deprived of, necessary food,
clothing, shelter or medical treatment, or who, knowingly or by
culpable negligence, inflicts or permits the infliction of
physical or mental injury to the child, and in so doing causes
great bodily harm, permanent disability, or permanent disfigurement
to such child, shall be guilty of a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084
||Whoever, willfully or by culpable negligence, deprives a child
of, or allows a child to be deprived of, necessary food,
clothing, shelter, or medical treatment, or by who, knowingly or
by culpable negligence, inflicts or permits the Infliction of
physical or mental injury to the child, shall be guilty of a
misdemeanor of the first degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084.
||Any person who commits any act which thereby causes or tends
to cause or encourage any person under the age of 18 years to
become a delinquent or dependent child, as defined under the
laws of Florida, or which contributes thereto, or any person who
shall, by act, threats, commands, or persuasion, induce or
endeavor to induce any person under the age of 18 years to do or
to perform any act, to follow any course of conduct or so to
live, as would cause or tend to cause such person under the age
of 18 years to become or to remain a dependent or delinquent
child, as defined under the laws of this state, is guilty of a
misdemeanor of the first degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084. It shall not be
necessary for any court exercising juvenile jurisdiction to make
an adjudication that any child is delinquent or dependent in
order to prosecute a parent or any other person under this
section. An adjudication that a child is delinquent or
dependent shall not preclude a subsequent prosecution of a
parent or any other person who contributes to the delinquency of
dependency of the child.
|827.05 Negligent treatment of
||Whoever, though financially able, negligently deprives a child
of or allows a child to be deprived of, necessary food,
clothing, shelter, or medical treatment or permits a child to
live in an environment, when such deprivation or environment
causes the child's physical or emotional health to be
significantly impaired shall be guilty of a misdemeanor of the
second degree, punishable as provided in s. 775.082, s. 775.083,
or s. 775.084.
According to the Florida Protective Services System Annual Report,
abuse and neglect is defined as "a child whose physical or mental
health or welfare is harmed, or threatened with harm, by the acts or
omissions of the parent or other person responsible for the child's
welfare" (Coler, 1991, p.3). This definition is adopted and
used by the Department of Health and Rehabilitative Services (HRS) case
workers that deal with this issue.
As one can easily see from the above two definitions, there is a big
difference between the HRS case worker's definition of child abuse and
neglect and the legal definition of abuse and neglect. However,
both definitions leave a great deal of discretion to the case worker
when attempting to decide whether a child has been abused and whether
they can substantiate the need for removal of the child from their home.
(A child is defined as one under 18 years of age.)
How Many Cases Are Confirmed?
The Florida Protective Services System Annual Report (Coler, 1991,
p.19), Figure 9, indicates that 57% (62,803 cases) investigated by the
state of Florida in the year 1989-90 were classified as
"unfounded." An unfounded report means a report in which
the investigation determines no indication of abuse or neglect
exists. Twenty-nine percent (32,306 cases) were classified as
"indicated" (now reclassified as "closed without
classification" because the indicated classification has been found
unconstitutional (NL, ES, & MM, vs. Gregory L. Coler,
1990). This was due to the classification procedure which did not
provide for the right to appeal the decision to label a person a child
abuser (Whalen, 1991). Further, 1% (987 cases) were classified
"no jurisdiction." Finally, 13% (14,669 cases) were
"confirmed." The Annual Report defines a confirmed
report as "a report in which the investigation determined that the
abuse or neglect has occurred and the perpetrator is identified. A
preponderance of credible evidence is required in order to classify a
report as confirmed" (p.19).
Appeal rights must be given when the case is classified as
confirmed. Of the 1200 cases that were appealed in a two-year
period, 92% won the appeal (Associated Press, 1989). Thus, the
names of the accused were removed from the abuse registry.
Therefore, it is likely that in many "confirmed" cases of
abuse, the parents did not actually abuse their children. The
actual number of abused children in Florida is likely to be relatively
small considering that the Florida abuse hotline receives nearly 200,000
calls of child abuse and neglect each year.
Richard Wexler (1990) reports statistics in his book, Wounded
that are not normally seen in the news, presented in courts, or given to
social workers. These statistics, which come from well-known
sources, indicate that "between 95 and 99 out of every 100 women
were not sexually abused by their fathers or stepfathers during
their childhood (Russell, 1986); more than 99 out of 100 children are not
beaten up by their parents every year (Gelles & Straus, 1989, p.
249); and more than 97% of all children are not abused or
neglected in any way in the course of a year (U.S. Dept. of Human
Services, 1988)" (p.77).
Why are there so many state investigations and so few confirmed
reports of abuse? Why must so many families defend their innocence
against false allegations of abuse or neglect? The answers are
simple; the State Department of Health and Rehabilitative Services (HRS)
was mandated under Public Law 92-247 The Child Abuse Prevention and Treatment
Act of 1974 and Public Law 95-266 The Child Abuse Prevention and Treatment
and Adoption Reform Act of 1978 to be "the ultimate authority
responsible for children" (HRSM 175-7, 1-9, 1990). HRS has
all power and authority over whether to remove children solely on an
allegation made to the abuse hotline. The justification for this
is called "erring on the side of the child." With the
definition of abuse and neglect so vaguely defined by current law,
nearly all children at some time in their lives can fall into one or
several categories of being abused or neglected. And although the
stated goal of HRS is to keep the family united, strengthen the family,
and protect parental rights (Florida Department of Health and
Rehabilitative Services, 1988), in reality the state often refuses to
help parents keep their children.
The investigation usually begins with an anonymous telephone call to
the abuse hotline (Casey, 1991) by either a concerned party or one
attempting to seek revenge. According to the the Florida
Protective Services System Report (1991), "the abuse registry
counselors may not be consistently screening allegations of abuse and
neglect because they are not sufficiently knowledgeable about the
screening criteria' (iii). The counselors may have insufficient
time to gather the information needed to determine whether an
investigation is warranted. As a result, some counselors may be
rejecting valid abuse allegations, leaving some victims of abuse
unprotected by the state intervention program.
Further, "counselors may be initiating investigations
unnecessarily, which wastes investigative resources, and unnecessarily
intrudes upon the lives of private citizens" (iii, italics
added). To improve the effectiveness and consistency of the
Registry's screening practices, more effective training is needed so
that the counselors can recognize the presence of behavioral,
environmental, and physical indicators of abuse and neglect, and be
competent to interview without prejudice.
Once a call has been received and a determination is made to
investigate, the HRS worker has up to 24 hours to complete an initial
investigation. It has been found that HRS workers frequently take
children from their parents with little or no evidence, but only a
suspicion that abuse might have occurred. The HRS manual 175-7
(Florida Department of Health and Rehabilitative Services, 1990) states
that during an investigation the "major source for substantiating
the case is the family" and adds that the HRS worker is to document
what the "family members transmit to the counselor through the
condition of their home, their behavior, their attitudes toward the
counselor and each other" (pp.2-17). The HRS worker then uses
this information as a basis for removal of a child from the custody and
care of the parents.
The Health and Rehabilitative Services Pamphlet (Florida Department
of Health and Rehabilitative Services, 1988) tells the case worker that
often parents are angry and will deny the allegation of abuse or
neglect. It advises the case worker: "You must always obtain
information to substantiate the alleged perpetrator's account and to
resolve any conflict between the allegations in the report and the
alleged perpetrator's denial" (F-2). It adds that if parents
are overly-compliant, accepting, and helpful the case worker should not
be falsely assured that the statements the parents are giving are true
and accurate (F-2.5.6.) and states: "These may be a smoke screen to
diffuse your investigation and manipulate you ... be suspicious"
However, "suspicious" is never defined, forcing HRS workers
to use their own judgment. This advice is seldom advantageous to
the family and HRS's stated goal of keeping the family united and
protecting parental rights. With the mentality of "be suspicious"
and "substantiate" every allegation, a parent is usually in a
no-win situation. If parents are either too hostile or too
friendly, they are judged guilty of abuse or neglect simply by their
After the initial interview the case worker has 30 days to complete
the investigation and classify the case. There are four types of
classifications: unfounded, closed without classification, proposed
confirmed, and confirmed. Bob Horner, a Florida Department of
Health and Rehabilitative Services subdistrict administrator, stated,
"HRS is not bound by that (the 30 day rule). We can go as
long as it takes to make a case (Pride, p.71). Horner observes
that during that time, parents have absolutely no rights. However,
Terry Ackert, the executive director of Florida's Orange County Legal
Aid Society, notes that every time HRS takes more than 30 days to
investigate, they are violating the law: "If HRS isn't following
the written rules, they are abusing their authority beyond reason ...
their actions are outrageous" (Pride, 1986, p.71).
Abuse by the System
Children are traumatized when they are separated from their parents
(Close, 1992; Ostalkiewicz, 1991). If abruptly removed and placed
in foster care they are likely to be terrified and may suffer severe
emotional distress and depression. Despite this, according to the
data collected for the federal government by the American Humane
Association, it appears that up to half of the children placed in foster
care were in no immediate danger of serious physical injury (Besharov,
There is little gained by removing a child from the parents unless
there are circumstances whereby the child was legitimately taken for
protection from life-threatening injuries. Judge Bresee (Close,
1992) states that it is "critical to make a quick decision (in
initial investigation and removal of a child) ... two weeks doesn't seem
like any time at all, but to a child, it's an eternity."
Foster care is supposed to be a short-term remedy designed to protect
children from harm while parents have time to respond to
treatment. Yet, the reality is far different. More than 50%
of the children in foster care are in the "temporary" status
for over 2 years; more than 30% are away from their parents for over 6
years (Besharov, 1988, p. 221s).
When the Florida government places children in foster care, HRS often
prohibits the children from having contact with their friends, church,
school, family or relatives. Further, the children lose access to
their clothes, special blankets or animals, toys, games, dating (if
adolescent), use of vehicle (if of age) and even use of telephone
privileges. "This can only be construed as the imprisonment
of a child, since the child has not committed any crime and is being
held against his or her will; it is false imprisonment" (Burriss,
1991, p.5). Tong (1992) notes, "The long-term ramifications
of this (separation trauma and loss of family and possessions) on the
children has yet to be determined, but the potential consequences cannot
be considered innocuous or inconsequential" (p.120).
Child advocates believe that abuse runs in cycles. Therefore,
they maintain that when children are abused, they will later abuse their
own children. Similarly, Burriss (1991) notes Gardner's
observation that many people will grow up and enter an occupation
because of some major event in their life. For instance, a person
exposed to a catastrophic illness may become a physician. Social
workers who were abused as children may later wish to take on the cause
of child protection. Therefore, they tend to be overzealous and to
believe that every reported case of abuse or neglect must be
substantiated in order to protect the child.
But, protect them from what ... their parents? Wexler (1990)
states, "No one will value and protect another's child as they will
their own." In a Glenn Close (1992) documentary, Broken
Hearts, Broken Homes, a social worker, Laurette Moatt, hesitates to
return a child to the parents because: "It's hard to return a child
home because of the developmental stage she's in. It's not easy to
switch primary caretakers. That's not something kids do just like
that." Yet, this same social worker did not hesitate to
"switch primary caretakers" on an unsubstantiated allegation
of abuse. In addition, children are at higher risk of receiving
physical, sexual and emotional abuse in foster care which may be worse
than the alleged abuse by the parents (Jones, 1991).
HRS workers have great power to intervene and separate the child from
the parents. However, they are not accountable. The conduct
of HRS workers and other child advocates, such as the guardians ad
litem, is protected with legal immunity. Florida statutes
415.508 and 39.455 state: "The inability or failure of the social
services agency or the employees or agents of the social service agency
to provide the services ... shall not render the state or the social
service agency liability for damages ... (292). Also, according to
the court case of Darryl H. v. Coler; 801 F. 2d 893.93 A. L. R. Fed.
501, this immunity protects social workers from civil rights violations,
knowingly false reports, and abuse of children if done during the
In addition, all records of investigations involving child abuse are
confidential or sealed unavailable to the public. While
confidentiality is claimed to protect the child, in actuality it
provides an excellent shield to cover up wrong doing by the child
protection system. Therefore, child protection workers have full
access to children with complete secrecy, immunity from prosecution, and
legal protection from the department of Health and Rehabilitative
Services if their judgment is questioned. What better environment
could a child molester or abuser ask for?
Workers may violate basic civil and constitutional rights, falsify
reports, emotionally traumatize and abuse children, and place children
in foster care where the children may be physically and/or sexually
abused. All of this is done in the name of the best interest of
the child. "The government has no right to expect perfection
from parents especially when the government has demonstrated they are
substantially less than perfect themselves" (Burriss, 1991, p.7).
Jones (1991) identifies the harm of intervention in abuse cases as
"iatrogenic harm" or system abuse. Iatrogenic harm is
the harm created by the response of the system to an allegation of
abuse. Some of the components Jones identifies are overzealous
professional intervention which becomes counterproductive; repeated
interviewing or "disclosure work"; repeated physical
examinations; decline in living standards and family breakup; defensive
decision making for fear of lawsuits; withholding of treatment for lack
of funds; overtreatment; and foster care, particularly when there are
multiple placements and the disruptions are abrupt.
In defense of the social worker, the Department of Health and
Rehabilitative Services in Florida acknowledges that
"unfortunately, unpredictable increases in reports and cases,
long-term vacancy rates and high turnover in staff have reduced the goal
of obtaining manageable and effective workload" (Florida Protective
Services System, p. 42). Workers are not adequately screened nor
trained to do the job that is entrusted to them. A worker can have
a four-year degree from any college. Although they have background
checks, via fingerprints through the FBI run on them after employment,
the screening does have information regarding abuse or neglect listed
against them when they were children. Such childhood abuse could
influence their attitudes as protective workers.
The recommended number of new cases per case worker is to be no more
than 12 per month. However, workers average up to 15 or more new
cases. When this is added to the existing case load, considering
children stay in government care on the average of 2 to 6 years, a case
worker may have up to approximately 120 cases. David Flagg, State
House of Representatives of Alachua County, Florida (1988 to 1992)
observes this is an outrage, not only for the case worker, but for the
children (personal communication). Mr. Flagg felt that no one
person could possibly handle that large a case load and do the task of
protecting children adequately. He said it was no wonder children
and families are being separated for long periods due to the lack of
proper services being offered to reunite the family. ABC's Diane
Sawyer (News Prime Time Live, December 3, 1992) observes that "The
HRS's system is stretched too thin too many case, too few workers
... (social workers) are also just careless and incompetent.
Luza and Ortiz (1991) describe what they term the "shame"
factor child protective workers use against families. They believe
that "the Child Protective Service workers act in a shaming way
toward people it investigates for abuse, in much the same way that a
parent shames a child in a dysfunctional family. The family
becomes the shamed 'child' and the CPS acts as the shaming
'parent'" (p.109). Luza and Ortiz believe that even though
there are laws requiring professionals to identify and report abuse, the
pendulum may have swung too far in that it is considered unwise to
support less intervention because one may be thought of as a proponent
of child abuse. The result is unnecessary state intervention into
private family matters and grief to innocent parents and their children.
Recommendations for Improvement
Schultz (1989) reports on a case study of 100 cases of unfounded
abuse and makes several recommendations for improvement in the system:
||The case load of the child protective worker should be reduced
to a manageable level.
||The hotline reports should be classified by experienced
workers in terms of the seriousness of the risk.
||In-service training for administrators in proper and ethical
use of media (which often uses hype and exaggerated data) should
||Initial call screening must be improved.
||Family-impact statements should be required to justify all
major decisions for state intervention into family privacy.
||Child protective agencies should assign one case worker to
represent the child and one worker to represent the interest and
rights of the parents.
||Family mediation should be a first step in allegations,
instead of court action.
||Interviews of suspected victims and offenders should be
videotaped by properly trained personnel.
||Investigators should receive training in how to effectively
gather evidence that will stand up in court.
||Professional assistance for parent-victim should be provided
to assist them in forgiving the court and repairing injury by
||Some type of victims-compensation benefit for falsely charged
and/or convicted individuals should be instituted, or made a
part of current victims compensation policy.
There is one solution that has been implemented, as a pilot program
in four districts in Florida (Chapter 415, 415.515-415.22). That
program is the Family Builders Program. This program, which was
developed by the Behavioral Sciences Institute in Washington, DC, is an
intensive family preservation service designed to keep families intact
and to improve family functioning (Kenny, 1991). Referrals to this
program are parents who have allegedly abused or neglected their
children and may lose custody of their children to the state department
A team of highly trained therapists and social workers work with no
more than three families at a time. They assess the needs of the
family and they provide necessary services, such as help in obtaining
food, clothing, and shelter; training in parenting skills, balancing a
checkbook, and preparing nutritious meals; and teaching families about
emotions, behaviors, and interpersonal relationships. The cost of
these services, which are paid for by state, federal and private funds,
does not exceed the cost of out-of-home care which otherwise would be
The social worker and therapists are available to the family 24 hours
a day for up to 90 days. After that, there are monthly follow-ups
by the same team for up to 12 months. This program has proven to
be highly cost effective and 88% of the children originally targeted for
out-of-home placement remain out of government-funded foster, group or
institutional care. Therefore, this program is saving Florida
Child abuse is a serious issue but is not as widespread as some child
advocates maintain. Children not only have the right to grow up
free of abuse, but have the right to expect to be raised within their
own family. This issue is not just about "saving
children"; it is about family preservation (Wexler, 1990).
Until professionals can accept the fact that the family unit is the most
important part of the child's life, and that parents need to be
recognized as the "experts" in knowing what is in the best
interests of their children, innocent families will continue to be
destroyed in what the bureaucratic government agencies call "acting
in the best interest of the child" or "erring on the side of
the child." If we are really serious about child protection,
we must begin "erring on the side of the family" (Wexler,
ABC News Prime
Time Live, (1992, December 3). Who watches the watchmen?
(Television). American Broadcasting
Companies, Inc. Transcript #274.
Besharov, D. J. (1988). How child abuse programs hurt poor children:
the misuse of foster care.
Review, 22(3), 219-227.
Burriss, R. (1991). The government's right to molest children in
the best interest of the child. Unpublished manuscript.
Casey, S. (1991). District Administrator HRS, Gainesville, Florida.
Letter to David Flagg, Representative, District 24.
Close, C. (1992, December 2). Broken hearts, broken homes. Your
family matters [documentary]. Lifetime
production. Transcript #10.
Coler, G. L (1991). Florida Protective Services System: Annual
Report, Fiscal Year 1989-90, Child Protective Investigations, pp.3,
19, 41-42. Tallahassee, Florida: Florida
Department of Health and Rehabilitative Services.
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and Rehabilitative Services. (1990). HRS Manual 175-7, pp. 1-9,
2-17. Tallahassee, Florida: Author.
Florida Department of Health
and Rehabilitative Services. (1988). HRS Pamphlet 175-1. Child
Protective Services Investigation Decisions Handbook, Appendix F,
F-2; F-11; pp. 7-5, 7-8. Tallahassee, Florida: Author.
Florida Protective Services System (1991). Executive Summary.
Audit Report No. 11645, pp. i-vii. Tallahassee, Florida: Author.
Florida Statutes 4. (1989). Chapters 624-960, pp. 1308.
Florida Statutes 1. (1991). Chapters 1-246, pp. 292.
Florida Statutes 3. (1991). Chapters 409-623, pp. 117, 143-144.
Gelles, R., & Straus, M. (1989). Intimate Violence: The Causes
and Consequences of Abuse in the American Family ().
New York: Touchstone Books.
Jones, D. P. (1991). Professional and clinical challengers to
protection of children.
Child Abuse & Neglect, 15, 57-66.
Kinney, J. (1991). Making a difference for children, families and
communities. Behavioral Science Institute.
Luza, S., & Ortiz, E. (1991). The dynamic of shame in
interactions between child protective services and families falsely
accused of child abuse. Issues In Child Abuse Accusations, 3(2),
NL, ES, & MM plaintiff vs. Gregory L Coler, individually and as
Secretary of the Department of
Health and Rehabilitative Services, State of Florida, defendant,
(1990, March). Case #TCA 90-40069-MP, in U.S. District Court, Northern
District of Florida, Tallahassee Division.
Ostalkiewicz, J. (1991. February). Family rights: HRS' child abuse
witch hunt. Orlando, FL, Newsletter, 1-8.
Pride, N. (1986). The Child Abuse Industry
Illinois: Crossway Books.
Russell, D. (1986). The Secret Trauma: Incest in the Lives of Girls and Women
New York: Basic Books.
Schultz, L. (1989). One hundred cases of unfounded child sexual
abuse: A survey and recommendations. Issues In Child Abuse
Associated Press (1989, February 7). Study: 92% of appealed
child-abuse cases false. The
Orlando Sentinel, p. B-1, B-5 and the Tallahassee Sun-Sentinal,
Tong, D. (1992). Don't Blame Me, Daddy ().
Norfolk, Virginia: Hampton Roads
U.S. Dept. of Health and Human Services,
National Center of Child Abuse and Neglect. (1988). Study findings:
Study of national incidence and prevalence of child abuse and neglect
(1988 NIS-2). Chapter 3, p. 2. Washington, DC: Author.
Wexler, J. (1990). Wounded Innocents: The Real Victims of the War
Against Child Abuse ().
New York: Prometheus
Whalen, J. (1991). Florida abuse registry loses in federal court. Issues
In Child Abuse Allegations, 3(4),
Radko is the vice-president of the Board of Directors of VOCAL
of Florida and the District Representative for the Gainesville,
Florida VOCAL Chapter. Ms. Radko, who is pursuing a masters and
doctorate in psychology, can be reached at P.O. Box 7021,
Gainesville, Florida 32605. [Back]