Transcript Domestic Violence and Child Endangerment

Child Deprivation and
Domestic Violence
Vicky O. Kimbrell
Kori Woodward
Georgia Legal Services Program
www.GLSP.org
“The
battered mother has to worry
that if she leaves, the abuser will
take her children, and if she doesn’t,
that the government will.”
Jill Zuccardy, attorney in Nicholson v. Williams
Why doesn’t she just leave?
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FEAR - #1 reason
Safety
Lack of money
Threats to children
Promises
Lack of enforcement
Frequency/Severity of
abuse
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Her childhood
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Isolation
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Beliefs about
marriage and/or
men
STATE INTERVENTION IN
FAMILY VIOLENCE CASES
• “My three month old woke up in the middle of
the night with an ear infection and temperature.
My husband screamed, ‘Shut the baby up, I’m
trying to sleep.’ I was trying to comfort her, but
nothing worked. He got up, took her and
whacked her. She had a black and blue rear end.
Now what should I do? If I take her to the
doctor, they’ll take her from me because I’m the
mother and I allowed this. My husband told me.
‘No matter what you say, I’m going to tell them
that you did it.’” Effective Intervention in Domestic Violence &
Child Maltreatment Cases – National Council of
Family Court Judges, p. 11.
Juvenile &
What would you Do?
What would be the
Consequences?
• Call police.
• Call DFCS.
• Go to doctor.
• Call your family.
• Call a friend.
• Call a lawyer.
• Call a shelter.
• Leave.
The Child Endangerment
Statute - Cruelty to Children
• O.C.G.A. Sec. 16-5-70
• Second Degree - Such person, who is the
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primary aggressor, intentionally allows a child
under the age of 18 to witness the commission
of a . . .family violence battery
Such person, who is the primary aggressor,
having knowledge that a child under l8 is
present and sees or hears the act, commits
family violence battery.
Legal Requirements before
Removal
• Continuation in the home contrary to the
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welfare of the child
Reasonable efforts by DFCS to prevent or
eliminate the need for the removal - 15-1158
Such findings shall be made at every
subsequent review
Child’s health and safety is paramount - 1511-58(a)(1)
Parents have right to zealous and competent
representation. Indigent parents have right
to appointed counsel
Principles for an Effective
and Humane CPS System Greenbook
• Safety, well-being and stability for
children and families
• Children in care of non-offending
parent
• Community service system with many
points of entry
• Differential response to families
Principle I: Courts, lawyers, child protective
agencies, domestic violence
agencies must intervene to create safety, enhance
well-being, and provide stability for children and
their families.
• Domestic violence perpetrators do not
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victimize only adults.
Where women are abused, their children are
also often maltreated.
Services must be provided for the parentvictim to protect children. Erom: Effective Intervention in
Domestic Violence & Child Maltreatment Cases – National Council of Juvenile &
Family Court Judges - Greenbook
Principle II: To ensure stability and
permanency for children, courts and
communities must try to keep children
in the care of their non-offending
• Historically, mothers have been held responsible for
parent.
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batterer’s violence – failure to protect;
Shortsighted to remove children from care of their
battered mothers rather than remove the batterer;
Link the safety of the children to safety of the mother;
Communities must develop a broad range of services
and interventions for family violence –Natl. Assn. Of
Public Child Welfare Administrators (1999) Guidelines for
a Model System.
Principle III: Responsibility for Family
Violence Must be Placed Where it
Belongs – On the Abuser
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Criminal Responsibility
Civil Responsibility
Financial / Economic Responsibility
Batterer Intervention Programs
Parenting Training
Supervised Visitation
Drug/Alcohol Abuse Intervention – Not excuses,
not causes of abuse.
DV ToolKit - Tools to Effectively
Intervene in DV Cases Where
Children are at Risk
• Do’s and Don’ts
• Caseplans
– TPOs
– DV Shelters
– Separation from Batterers
– Evaluations
– Counseling
Separation from Batterer
• Do
– Educate Victims on
Separation resources Places, shelters
– Financial resources,
• Child Support
– Public Benefits
• TANF, Food Stamps
• Medicaid,
Peachcare
• SSI/SSD
• Public/Subsidized
Hsg.
• PUP funds
• Victims
Compensation
• Don’t
– Make Victim
Responsible for
Separation
– Mandate
Separation
without safety
planning
More women are
killed leaving than
staying. 75% of
homicides during
separation
Evaluations
• Do
– Offer Services
Relevant to the Safety
Needs of the Victim
and Children
• Don’t
– Order evaluations
because “everybody”
gets them - parenting
classes won’t keep
anyone safe
– Drug testing, mental
health - being beaten
is not a mental
condition
Joint Case Plans Put Victims
& Their Children in Danger
• Make each party responsible only for the actions
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they can control. “Ms. Jones will not
participate in domestic violence.”
If he knows where and when her
classes/evaluations/tests/services are
scheduled, she’s in danger - and the case plan
put her there.
FVIPS are never appropriate for victims
Temporary Protective
Orders
• Do
– Advise Client of
Options
– Refer Client to
Legal Services,
Private Attys,Legal
Advocate, Vic Asstc,
SAAGs
– Realistically explain
benefits and risks of
TPOs
• Don’t
– Mandate TPOs
– TPOs can Anger
Batterer
– Mutual TPOs
– Uses your authority
to control victim
– Victim has more
information than
you upon which to
make decisions
Domestic and sexual violence
...threaten survivors’ employment and
economic security, which in turn
creates and sustains women’s poverty.
A cruel irony, this economic instability
then becomes one of the most
formidable barriers to survivors
escaping abuse.
Economic Abuse
• Court cannot use lack of economic
resources as a basis for taking children
from parents.
• Court has held that “by harm, the court
means either physical harm or significant,
long-term emotional harm; we do not
mean merely social or economic
disadvantages.” Clark v. Wade, 273 Ga.
587 (2001)
What can lead to economic
abuse?
• Lack of child support in TPOs
• Lack of property awards in TPOs
• Injuries requiring medical attention
• Debts - Credit abuse
• Lack of Enforcement
Custody and Batterers
• Batterers are twice as likely to seek
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sole physical custody for their
children than are non-violent fathers.
When batterers do press for custody,
they are awarded it at the same rate
of non-batterers, 50% of the time.
Forced Joint Custody
Forcing joint physical
custody on unwilling
parents results in high
levels of parental
conflict and re-litigation,
leaving children with
two tense and angry
parents.
Standards on Awarding Custody when FV OCGA 19-9-1 (a)(2) – “In a proceeding
awarding custody/visitation when family
violence is found:”
– Court shall consider as primary the safety and wellbeing of the child and parent who is the victim of
family violence;
– Court shall consider the perpetrator’s history of
harming another;
– If one parent is absent or relocates because of family
violence such shall not be deemed abandonment of
the child;
– Court can order supervised visitation.
Visitation - OCGA 19-9-1 (a)(2) – in a
proceeding awarding custody/visitation
when family violence is found:
– Court shall consider as primary the safety and
well-being of the child and parent who is the
victim of family violence;
– Court shall consider the perpetrator’s history
of harming another;
– If one parent is absent or relocates because
of family violence such shall not be deemed
abandonment of the child;
– Court can order supervised visitation.
– Visitation Centers
– Alternatives
Safety Planning
• With the Adult
• With the Children
– Shelter Advocates - Experts in this area
– Are Advocates on Case Panels in your
community?
How Can We Hold the Batterer
Accountable for the Violence - Not
the Victim?
Separate Caseplans for Perpetrators
Batterer Case Plans
• Perpetrator will:
– Commit no acts of violence;
– Commit no intimidating acts, threats
or verbal abuse
– Remove all weapons
– Comply with all court orders
– Attend and comply with all Batterer
Intervention program
recommendations
– Not use physical violence against
Batterer case plans
• Acknowledge past abuse
• Comply with substance abuse
recommendations
• Comply with mental health
recommendations
• Pay child support as ordered
Voluntary vs. Involuntary Safety
Plans
• Temporary out of home placement.
– With relative
– With stranger care
Options for Parents
• Compliance
• Advocating for your family
– Right
– Right
– Right
– Right
– Right
– Right
to
to
to
to
to
to
agree with plan
a hearing
know the case against you
an attorney in court
transcript
an attorney on appeal
Risks of Not Signing Safety Plans
• Deprivation action will be filed
• Risking loss of custody of your children
• Risking either way
• At least you have a hearing to present
evidence
• Make the state their case by clear and
convincing evidence
To Reduce Your Risk
• Taken all precautions to protect your
children
• Safety –
– Keep children from being exposed to family violence;
– TPO, separation, reports to the police, document the
threat,
• Economic security –
– Clean, well fed, clothed, school attendance, medical care,
way to support, rent, utilities, transportation, family
backup.
Evidence of your Efforts to Protect
and Care for Children
• Witnesses –
– Care for your children
– Tried to protect children, called police, shelter,
schools, teachers,
• Documents
– Copies of police reports; TPOs; medical care;
– 911 calls,
Document your efforts
• Keep notebook, calendar, journal of what
you’ve done to protect your family
• Keep evidence of everything you’ve done
at the instruction of the department.
Cooperative not Combative
Even though you may not agree to sign case
plan or turn over children – remember
Cooperative with everything possible,
short of turning over custody
Document your cooperation; document
every contact, get names of people,
Casemanagers are People too.
– Attitude – professional, agreeable, pleasant,
keep children’s welfare first at all times;
– All parties should be most concerned about
children’s welfare.
– Casemanagers have heavy caseloads –
become frustrated
– Help by offering alternatives, solutions
– Ask Casemanager – short of removing the
child what can I do to solve your concerns.
Bottom line
• Do everything you can to show a
reasonable person that you are doing
everything you can to care for your
children.
• Then you can go to court if you have to
and present a case that your children are
not deprived.
“The total length of separations of mothers and
children [that NY CPS] has caused is measured in
years. The suffering and trauma it has caused cannot
be measured.”
Judge J. Weinstein, Findings of Fact, Nicholson v.
Williams