August 2, 2001

August 2, 2001 | Testimony on Family and Marriage

CAPTA Successes and Failures at Preventing Child Abuse and Neglect

Family Structure and the Role of Parents

We do know that rates of abuse for children are lowest in intact married families. We know that abuse is highest when mother cohabits with a boyfriend who is not the father of the children. This family arrangement is very frequent among the poor, thanks in no small part to the role of the federal government.

Federal welfare payment structures and Earned Income Tax Credit (EITC) regulations massively penalize marriage, and in so doing the federal government has an active role in fostering the family structures that feed child abuse the most. 

If the federal government wants to see a decrease in the rates of child abuse, logically, it must commit itself to restoring marriage particularly amongst the poor: restoring commitment, loyalty and security. Both abused women and children will benefit.

United Nations and Parental Rights 

For decades now among some child advocates there has been a growing hostility towards parents and a dismissal of the rights of parents. This runs from local cases such as described above to the infamous 1980 Washington State Supreme Court judgement against the parents of Sheila Marie Sumey, when the child was removed from her parents at her own request, acknowledged to be without cause on the parents side of the issue. Though history, and the now grown teenage girl both clearly state the courts were wrong, the precedent still stands in Washington State and the court has not renounced its error.

At the United Nations the rights of parents to raise their children according to their moral and religious beliefs is constantly under attack from the U.N. Secretariat.2 For instance the committee tasked to bring nations into compliance with the Convention on the Rights of the Child (which the US has not ratified) rebuked Great Britain for permitting parents to withdraw children from sex-education classes that ran counter to their moral beliefs, even though the rights of parents to direct the moral formation of children is enunciated in the Universal Declaration of Human Rights and in the two treaties which implement the Declaration. The U.N. Secretariat has never countermanded the committee rebuke.

In 1998 at the U.N. Lisbon conference of Ministers of Youth the rights of parents to form their adolescent children was repeatedly fought off and deliberately not included in the final concluding document.

Furthermore the U.N. committees are urging states to give minor children:

  • The right to privacy, even in the household;
  • The right to professional counseling without parental consent or guidance;
  • The full right to abortion and contraceptives, even when that would violate the parents' ethics and desires;
  • The right to full freedom of expression at home and in school;
  • The legal mechanisms to challenge in court their parent's authority in the home.

For example, the U.N. Committee on the Rights of the Child recommends to the Japanese government that it "guarantee the child's right to privacy, especially in the family." Such a measure would establish legal and structural wedges between parents and their children in the home. Normally, when children rebel against their parents, society frowns. Yet the U.N. is attempting to put in place, in policy and law, structures that foster this type of rebellion.3

These are not distant threats to the rights of parents, they are as close as the Convention on the Rights of the Child already signed by President Clinton, though not ratified by the Senate.

There are dangerous attitudes of hostility towards the roles and rights of parents, attitudes growing among many in the applied fields of children's policy and in the policy community of children's advocates at the national and international level. Because Congress funds so much of the programs that interface the rights of children and the rights of parents it behooves it to protect the constitutional rights of due process of parents.

National Incidence Survey (NIS - 4)

One of the first things that the federal government can do is direct HHS to do the fourth round of the National Incidence Survey, (NIS-4) and this time require that data be gathered on two critical background factors in abuse: details on the marital living arrangement of resident parent(s), (there are at least eight such arrangements that are critical in child abuse) and the frequency of religious worship by the resident adults. There is a need to get a true and accurate picture of the structures of abuse in this country. The prior three Surveys did not gather these data and to that extent the country is flying blind and misinformed on the need to cultivate those institutions that are most protective of the safety of children, women and even men.

Anonymous tips

The highest substantiation rates of reports of abuse come from professionals who report their concerns, while the lowest level of substantiation of abuse comes from anonymous reports.

A huge proportion (70 percent on average, and up to 90 percent in some districts) of the investigations of child abuse triggered by anonymous reports turn out to be without foundation and these investigations eat up a massive amount of the resources needed to deal with real child abuse and neglect.

When an innocent family is confronted with police and social workers in a basless case they are frequently frightened needlessly. Furthermore when they are treated with the presumption to be felons (when they are innocent) each such treatment erodes citizens confidence in the child protective service and even in law enforcement. This sense of distrust has been growing for a number of years among traditional church-going families and particularly among homeschooling families (who as a group are the superior performers on raising their children), a distrust that should be of concern to all lawmakers and law enforcement officers and court officers.

At the heart of this particular type of overuse is the widespread, well nigh universal practice of permitting anonymous callers to lodge complaints. This practice permits a miscarriage of justice: a call can be made accusing a parent of awful abuse of their children. Case workers, sometimes accompanied by police then have to investigate the complaint, and as mentioned, over 70 percent of them are baseless. Many such initial reporting are malicious in nature.

There is a simple remedy: anonymous calls to the case worker or police should not be acted upon. One might still protect the anonymity of the caller from the accused but at least the police or case workers should know who the caller is and how to contact them. 

New Mexico and Arizona have laws on the books against the use of malicious calls but because anonymity of the caller is permitted, malicious calls generally cannot be prosecuted or even investigated.

It is time to require callers who accuse or report abuse to identify themselves to the officials they call.4 Doing so will likely bring the rate of confirmable reports.

False reports should at least be a class C misdemeanor. (Alabama has model legislation).5

Due Process Rights

A related abuse of law is that parents are not informed of their rights when investigators call. For instance recently in Missouri a parent was anonymously accused of spanking his child 250 times of chaining the children to chairs and of emotionally abusing them in other ways. Two social workers, a sheriff and two criminal investigators showed up at the door and claimed right of entry. The show of force was overwhelming to the mother who answered the door. The case was eventually judged to be baseless and malicious but only after much trauma to the children and family was this finally the judgement of the police and caseworkers. In other cases when parents know and exercise their rights and refuse entry they are sometimes subject to harassment and abuse by the investigators.6

The proper approach would be to remind parents of their rights (that they do not have to let investigators into the home, and that they do have the right to counsel before proceeding further). Thereafter investigators may try to persuade parents to permit them to investigate and bring the issue to swift close.

These two reforms would massively reduce the unnecessary investigation caseload and help restore the confidence of parents in the child protection system.

Furthermore it would restore due constitutional process to parents, the one group that does not have this fundamental civil right extended to them.

A warrant must be obtained before a home can be entered without the informed consent of the parents, especially in the case of anonymous reports.

To help redress violations of privacy, victims of such violations should be able to inspect their records in order to seek recourse and rectification of the record.

An articulation of parental rights is needed to level the playing field during child welfare investigations.

The other end of the spectrum of the treatment of parents is where they have been repeatedly found guilty of serious child abuse. There the needs of the child demand that parental rights be terminated and the child placed for adoption much more frequently than they are. Thus on one end the system is overzealous too frequently and on the other end it is lacking in courage to do what it is empowered by law to do and what the needs of the child demand.

States Rights

There is a conservative tradition of defending the rights of states in all things that are not the purview of the federal government. I agree with that tradition and see a critical need to return to it. However there is no immediate chance that the federal government funding on child abuse issues will disappear or even be reduced. Therefore the federal government should use the influence it has through funding to ensure that the constitutional rights of parents are protected, both in due process issues and in ensuring that the wheels of justice turn in as just manner for parents being investigated as they do for arraigned criminals.

Furthermore many states are failing the best needs, even the minimal needs, of children by not aggressively pursuing the severance of parental rights when severe and repeated abuse of young children has been established. Such states violate the rights of the most vulnerable who are already under the protection of the state. This state neglect is cause for federal concern, further investigation, deliberation and action.

The views that I express in this testimony are my own, and should not be construed as representing any official position of the Heritage Foundation. In addition, the Heritage Foundation does not endorse or oppose any legislation.

Patrick F. Fagan is William H.G. FitzGerald Research Fellow in Family and Cultural Studies

About the Author

Show references in this report


1 In re the Welfare of Sheila Marie Sumey, 94 Wash. 2d 757, 621 P.2d 108

2 For a review of the pattern see: Patrick F. Fagan, "How U.N. Conventions on Women's and Children's Rights Undermine Family, Religion and Sovereignty", Backgrounder # 1407, The Heritage Foundation, Feb. 5 2001.

3 Ibid p.10

4 See Missouri H.B 30 for model legislation.

5 Alabama, S. 679

6 The HomeSchool Legal Defense Fund has ample case histories of such abuses from their legal consulting practice.