Child abuse is one of the most serious allegations an individual can face. When you are accused of abusing or assaulting a child, you face not only potential criminal charges but the possibility of losing your custody rights, your ability to volunteer at your children's school or sports activities, employment opportunities may be foreclosed to you, and you may face jail or prison time depending on the nature of the assault. Child abuse can take many forms including physical abuse, mental abuse, neglect, starvation, excessive discipline, or sexual abuse. Law enforcement has wide latitude in determining when abuse has occurred and will not hesitate to intervene.
Protective Custody and Custodial Rights
As a parent or guardian you retain custody of your child or children unless a court orders otherwise or a law enforcement officer believes your child is in imminent danger. Either law enforcement or the Department of Social and Health Services can take your child into custody on an emergency basis if they believe your child is in imminent danger. If your child is taken into custody following an allegation of child abuse it may be possible you will not know until hours after the fact. Although every parent's instinct is to cooperate in hopes of immediately regaining custody of their child, oftentimes cooperating can be against your interest, particularly when you know very little about the allegations or nature of the complaint. Consult an attorney immediately upon learning that your child has been taken into protective custody. In these circumstances you may be facing a criminal charge, a CPS investigation, a Dependency case, or all three.
Oftentimes, the report of abuse or neglect comes from a mandatory reporter. In Washington, certain individuals have a legal duty to make a report any time they have reasonable cause to believe that a child has suffered abuse or neglect. Reasonable cause means a person witnesses or receives a credible written or oral report alleging abuse, including sexual contact, or neglect of a child. Medical providers, teachers, caregivers, counselors, therapists, law enforcement officers, and others are all mandatory reporters. Failure of any of these parties to report a reasonable suspicion of child abuse or neglect can result in that person facing criminal charges. Therefore, mandatory reporters tend to err on the side of caution which can result in reports that are baseless or the result of mistake. Many reports come from Children's Hospital where a special abuse team has been assembled to evaluate suspected cases of abuse or neglect.
What is Abuse?
Child abuse or neglect means the injury, sexual abuse, or sexual exploitation of a child which indicate that the child's health, welfare, or safety is harmed, or the negligent treatment or maltreatment of a child by a person responsible for or providing care to the child. Physical abuse means the non-accidental infliction of physical injury or physical mistreatment of a child. Physical abuse includes, but is not limited to:
- Throwing, kicking, burning, or cutting a child
- Striking a child with a closed fist
- Shaking a child under the age of three
- Interfering with a child's breathing
- Threatening a child with a deadly weapon
- Doing any other act that is likely cause and which does cause bodily harm greater than transient pain or minor temporary marks or which is injurious to the child's health, welfare or safety.
Is Physical Discipline Abuse?
Physical discipline of a child is not illegal so long as the discipline is lawful and moderate and is inflicted for the purposes of restraining or correcting the child. The age, size and condition of the child, the location of any inflicted injury shall be considered in determining whether the bodily harm is reasonable and moderate. Other factors that may be considered include the developmental level of the child and the nature of the child's misconduct. The parent's belief that punishment is necessary does not justify the use of excessive, immoderate, or unreasonable force against the child.
What is Neglect?
Negligent treatment or maltreatment means basically that a child has been ignored or mistreated to an extent where the child's health, welfare, or safety is in danger. Negligent treatment or maltreatment can arise from an act or failure to act. Either can arise from a pattern of conduct, behavior, or inaction that shows a serious disregard of the consequences to the child. The child does not have to suffer actual damage or emotional harm to be in circumstances which create a clear and present danger to the child's health, welfare, or safety. Negligent treatment or maltreatment includes:
- Failure to provide adequate food, shelter, clothing, supervision, or health care necessary for a child's health, welfare, or safety.
- Actions, failures to act, or omissions that result in injury to or which create a substantial risk of injury to the physical, emotional, and/or cognitive development of a child.
- The cumulative effects of a pattern of conduct, behavior or inaction by a parent or guardian in providing for the physical, emotional and developmental needs of a child or the effects of chronic failure on the part of a parent or guardian to perform basic parental functions, obligations, and duties, when the result is to cause injury or create a substantial risk of injury to the physical, emotional, and/or cognitive development of a child.
Child Protective Services (CPS) and the Department of Social and Health Services (DSHS) are the Government bodies responsible for investigating allegations of abuse or neglect. These investigations are separate and distinct from criminal investigations. The job of CPS and DSHS is to determine whether family members can continue to live together safely. If these agencies determine a child cannot live in their home safely, they will seek a Court order removing the child from the home and begin a Dependency proceeding to keep the child out of the home until such a time as it is safe to return the child. Michele has successfully worked with CPS to create plans that enable families to remain together or have liberal visitation while an investigation is pending. Presenting a thorough, well developed safety plan prior to CPS making a decision can make the difference between contact with your child and a prolonged separation.
Background Checks and Employment/Volunteer Repercussions
An allegation of child abuse or neglect can impact your ability to obtain employment in the future or volunteer at certain activities involving children. Washington prohibits certain individuals from obtaining jobs or volunteering with children or other vulnerable populations when they have been the subject of a legal finding that they abused or neglected a child. The prohibition may come from a "Civil adjudication proceeding" such as a finding by CPS or a criminal conviction for a crime against a child or other person. A crime against a child or other person is determined by the crime of conviction and includes a long list of convictions found at RCW 43.43.830. In a CPS proceeding, a determination that an allegation of abuse or neglect was "founded" will serve as a factor eliminating an individual from volunteering or working with children or other vulnerable populations.
Domestic violence laws are aggressively enforced even in cases of accidental harm to a child. Reports of child abuse often arise when hospitals suspect a child's injury was not accidental. This is most likely to occur wither certain types of injuries or when a parent cannot provide a plausible explanation as to the source of the injury. Often, parents are not aware a child has been injured or how an injury occurred as injuries frequently occur outside the home, at daycare facilities, schools, or elsewhere.
Law Enforcement, Courts and Prosecutors err on the side of protecting the child and may impose restrictions on contact or be quick to arrest an individual suspected of child abuse when an injury cannot be explained. Michele has worked with many families when an allegation of abuse stems from an accident. With an extensive network of medical experts, Michele has defined the source of the injury and provided evidence demonstrating the injury was accidental, thus reuniting families and avoiding the filing of criminal charges.
A dependency may result when an allegation of child abuse is made or when other circumstances within the home raise concerns about a parent or guardian's ability to care for a child. In a Dependency the Department of Social and Health Services (DSHS), represented through the office of the Attorney General, seeks to either remove a child from their home or place restrictions on the parents. Dependencies can vary greatly. The most extreme example is where a child is placed in protective custody and removed from the home immediately upon an allegation of abuse or neglect. This can be a shocking experience as parents may not know for hours that their child has been taken into protective custody. Obtaining an attorney immediately upon receiving notice of a dependency is extremely important to protect your parental rights and avoid making statements that could later be used against you in the dependency or criminal proceedings.
A Dependency action is started when the Department of Social and Health Services files a written petition with the Juvenile Court alleging the child is "dependent". A "dependent child" is a child who:
- Has been abandoned by parent, guardian, or other custodian;
- Has been abused or neglected by a person legally responsible for caring for the child;
- Has no parent, guardian, or custodian capable of providing adequate care.
In some cases the dependency will be the only action against the caregivers. However, it is not unusual for a criminal case to track with a dependency, particularly when there are allegations of abuse or neglect. Individuals facing a dependency for these allegations must consider the possibility that a criminal action is pending and consult with an attorney.