Child Abuse, Assault of a Child,
and Neglect of a Child
What is Child Abuse?
Child abuse or neglect means the injury, sexual abuse, or sexual exploitation of a child by any person under circumstances 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. Child abuse is a legal term to define illegal acts towards a child. A criminal act of child abuse may have another name reflective of the type of abuse. Physical child abuse is most often charged as the crime of assault or assault of a child.
Assault of a Child
In Washington, if an adult injures a child and the State decides to file a criminal charge the most likely charge would be assault of a child. Assault of a child is the name of the crime when a person eighteen years of age or older assaults a child under the age of thirteen. It is not legal to assault a child over the age of thirteen; however, that act will be charged as a different crime. Assault of a child may be charged in the first, second, or third degree, depending upon the severity of the conduct. All charges of assault of a child are felonies with the potential for time in jail or prison, restrictions on seeing the child, fines, and potentially adverse employment consequences. An assault can be any minor offensive touching or an extreme circumstance such as intentional burning, or discipline that results in other harm. As with all crimes alleging harm to a child, the child may be taken into protective custody if the accused is a parent or guardian.
When a crime against a child cannot be charged as assault of a child it will most likely be charged as Assault with a Domestic Violence designation. This would occur either when the child is over the age of thirteen or the level of assault does not rise to a felony. Any assaultive behavior can be charged as Assault in the Fourth Degree, a gross misdemeanor. Domestic violence laws are aggressively enforced even in cases of accidental harm to a child, untruthful allegations, or when someone uses more force than necessary to discipline a child. 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. Michele understands all of these circumstances and has helped families work through these difficult cases without breaking a family apart. Visit our Child Protective Services page for more information on how CPS investigates child abuse investigations and the potential consequences.
Discipline of a Child
Washington’s laws include strict and narrow definitions of what behavior is legal for disciplining children. What may have been acceptable physical discipline a generation ago is potentially criminal behavior now. Physical discipline of a child, including the reasonable use of corporal punishment, is not considered abuse when it is reasonable and moderate and is inflicted by a parent or guardian for the purposes of restraining or correcting the child. Ultimately, if a case of child discipline goes to trial, the jury will be charged with determining whether the forced used, when viewed objectively, was reasonable and moderate.
Certain discipline tactics are presumed abusive:
- 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 to 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
Allegations of Child Abuse Criminal and CPS Investigations
When someone reports that a family member is hurting a child in the home, CPS will investigate and make a determination about whether the family members can continue to live together safely. These allegations can become criminal charges and it is very common to have a parallel CPS and criminal investigation occurring at the same time. If the alleged conduct is physical abuse a criminal Domestic Violence referral could be made. If the alleged conduct is sexual, a criminal referral for a Sex Offense is possible. Both these types of offenses can have very severe consequences. Washington’s Mandatory Reporting Law requires medical professionals, teachers, caregivers, counselors, therapists, and others to report suspicions of child abuse. Because reporting is mandatory and can result in criminal charges for a mandatory reporter who fails to report child abuse, these reports can often be baseless or the result of false information.
Court Order Taking Children into Custody
A child may be taken into custody by law enforcement or the Department of Social and Health Services when a petition is filed with the juvenile court alleging the child is dependent and the child’s health, safety and welfare will be seriously endangered if not taken into custody or an affidavit or declaration is filed by DSHS in support of the petition setting forth specific factual information evidencing reasonable grounds that the child’s health, safety, and welfare will be seriously endangered if not taken into custody and at least one of the grounds demonstrates a risk of imminent harm to the child. As a parent, you may not have knowledge for hours that your child has been taken into custody. Retaining an attorney immediately upon learning your child has been taken into custody is extremely important. Anything you say during the process can be used against you. There is no confidentiality between parents and social workers assigned to their children’s case and certainly no confidentiality with law enforcement officers investigating child abuse or maltreatment. If your child is taken into custody it is a terrifying process with many unknowns. Michele has extensive experience helping families through these critical, early stages of investigation. If your child is taken into custody a court hearing will occur within 72 hours (excluding Saturdays, Sundays, and holidays). You have the right to legal representation at this hearing and any further court hearings.
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.
"Shaken Baby Syndrome" / Abusive Head Trauma
Some of the most difficult cases that occur are those that involve excessive use of force on a small child. Commonly known as "shaken baby syndrome" these cases involve findings of head trauma to a small child or infant. These cases may also be referred to as "abusive head trauma" or "inflicted brain injury." Typically, a parent or caregiver is the first to be suspected of causing head trauma to a young child. In many cases, parents or caregivers may not know a child has been harmed because the trauma occurred outside their care. When a child begins to exhibit symptoms, and their parent or caregiver acts appropriately and takes them to the hospital, that parent or caregiver can become the first suspect.
Symptoms that may alert medical professionals to potential shaken baby syndrome include: vomiting, lethargy, extreme irritability, seizures, breathing problems and in extreme cases paralysis, coma and death. Many of these symptoms may be the result of another cause of the injury, such as a birth defect or accidental injury. In some cases, the parent or caregiver suffers from a mental illness or other difficulty that causes them to not realize the severity of their actions. "Shaken baby cases" do occur when a parent or caregiver becomes frustrated and uses excessive force in an attempt to quiet a child. These difficult cases require compassion and careful analysis to determine what defenses are available. Michele has experience working with individuals charged with "shaken baby offenses" and the nationwide experts that are absolutely critical to presenting a successful defense. Hospitals maintain their own experts on child abuse who can be quick to formulate an opinion that intentional trauma has occurred. A key component of defending against "shaken baby cases" is gathering evidentiary medical records and facilitating an independent expert to render an opinion regarding the source of the injury.
Neglect encompasses the failure of a parent or other guardian to provide needed essentials or supervision to the degree that the child’s health, safety and well-being are threatened with harm. Neglect can take many forms including failing to provide a child with medical care, failing to provide proper nutrition. Although neglect may initially be handled through Child Protective Services, neglect allegations can become criminal charges. For instance, many situations where parents or caregivers use restrictions on food as punishment result in criminal charges under the assertion that the lack of food caused substantial bodily harm and the person has previously engaged in a pattern or practice of causing the child physical pain or agony that is equivalent to that produced by torture. Defending these cases requires a well experienced lawyer in this niche.
Homicide by Abuse or Neglect
If a child or other dependent person dies and there is an allegation of abuse or neglect, Homicide charges will likely result. A person is guilty of homicide by abuse if, under circumstances manifesting an extreme indifference to human life, the person causes the death of a child or person under sixteen years of age, a developmentally disabled person, or a dependent adult, and the person has previously engaged in a pattern or practice of assault or torture of said child, person under sixteen years of age, developmentally disabled person, or dependent person. These cases are often decided with expert testimony to aid in determining whether the actions of the accused, or some other factor, caused the death.
Postpartum Depression and Child Abuse
Postpartum Depression can be a contributing factor to child abuse allegations involving infants. Mothers suffering from postpartum depression may unwittingly neglect their children or be incapable of recognizing the child’s needs. Postpartum depression can have serious adverse effects on the mother and child relationship. Estimated rates of depression among pregnant and postpartum women can range between 5 percent and 25 percent. In rare cases, postpartum depression can lead a mother to seriously harm her child or children. Postpartum depression can cause irritability, mood swings, feelings of hopelessness and worthlessness, crying jags, and difficulty concentrating. In some cases women experiencing postpartum depression may also find that they are uninterested in the new baby or have irrational fears of harming their child. Severe postpartum depression may go unrecognized as some level of emotional strain and difficulty coping is natural for a new mother. However, when untreated postpartum depression can be extremely dangerous and the reason of mother harms her child. Michele is experienced in working with women experiencing severe postpartum depression and can recognize its symptoms even if you may not have. Michele’s relationships with treatment professionals and experts are critical to addressing the very unique aspects of child abuse cases where postpartum depression is a cause.
"Munchausen by Proxy" / Factitious Medical Disorder
Munchausen by Proxy, also known as Factitious Medical Disorder, is a mental health diagnosis that purportedly drives a parent to make their children sick, or falsify symptoms, in order to get attention for themselves. When Munchausen by Proxy occurs the adult deliberately misleads others (particularly medical professionals) and may go as far as to actually cause symptoms in the child through poisoning, medication, or even suffocation. The diagnosis is highly controversial as it is often difficult to discern whether a parent actually has the disorder or whether medical concerns for their child are valid. Diagnosing this is further complicated by the fact that the suspected caregiver is diligently and aggressively advocating for the child when they believe an illness is present. In some cases, the caregiver’s efforts, such as demanding medical tests, doing medical research, joining health care blogs and advocacy groups, can be construed as symptoms of the disease rather than legitimate efforts on the part of the parent to help their child. The disease is most commonly diagnosed in mothers and very rarely in fathers. Most experts believe that the syndrome is extremely rare and agree it is difficult to diagnose. As with all suspected cases of child abuse, doctors are mandatory reporters and must report a suspected case of Factitious Medical Disorder to Child Protective Services or Law Enforcement.
Child Abuse Offender Treatment
In some cases, a parent or caregiver has made a mistake and hurt a child either with excessive discipline, accident, or neglect. Families can overcome these difficult circumstances. The court process can be a positive experience to enable families to resolve problems and obtain appropriate treatment if necessary. Through the court process (either the dependency or criminal proceedings), the court may order a parent or caregiver enter treatment. This treatment may take the form of Parenting Classes, Domestic Violence Batterer’s Treatment, Drug and Alcohol Counseling, or Individualized Therapy. Finding the appropriate treatment provider or program is the key to successfully resolving a court case and reunifying with your family. Michele has assisted many families in navigating these difficult charges and has strong relationships with many excellent treatment providers in the community.
Contending with Resources for Victim
Child abuse cases are a high priority for law enforcement and prosecutors. These offices have extensive resources, including specially-assigned social workers, forensic interviewers, and advocates in order to facilitate gathering evidence. Children who are suspected victims of abuse are typically interviewed many times, by the individual who first suspects the abuse, by law enforcement, social workers, SANE nurses if medical treatment is required, and forensic interviewers assigned to interview the child about the suspected abuse. Once charges are with the prosecutor’s office, the child will also be assigned a victim advocate whose duty is to advise the child and their guardian on the child’s rights and present information to the prosecutor and court about the child’s circumstances. If a dependency proceeding is filed along the criminal case, the victim will also be assigned a Victim Guardian Ad Litem tasked with gathering information about the child and making a recommendation to the court about the child’s best interests. Michele has routinely established an excellent rapport with the various parties involved in this process, including the advocates for the children.