Note: The following is an excerpt from the second edition of Family Integrity & Justice Quarterly, an academic journal on family well-being.
Child neglect has become a dog that has swallowed child abuse’s tail. Despite the focus of public attention on child abuse as the prime “evil” that requires public attention, nowadays, child neglect allegations dwarf child abuse allegations by wide margins with “neglect only” nearly four times more common than physical or sexual abuse allegations combined (60.1% for neglect versus 17.5 % for “abuse” only).
Child neglect reports have become so prevalent that it has become nearly impossible to get a clear picture of what constitutes “child neglect.” Neglect’s boundaries are invisible. Just about any act or omission related to a child could qualify as neglect. Most states lump widely disparate categories of neglect together (although 40 states categorize “medical neglect” separately and approximately 25 states treat educational neglect separately as well).
But reported data also tells nothing about how serious or harmful so-called neglect is. From readily available data, it is impossible to distinguish between a 9-year-old who was happily playing in her own backyard when a passerby called the hotline versus a toddler who was left unattended overnight. Both are potential “victims” of “neglectful supervision.”
The amorphous quality of child neglect laws also makes the legal defense of accused parents especially difficult. A new framework is needed.
Precisely because neglect is so polymorphous, advocates must become clearer about the language they employ to describe both legitimate and illegitimate claims regarding harmful parenting. This requires hard work on definitions and their interpretation. It also calls for multi-strategy advocacy, coalition building, and persistence.
While neglect was an afterthought as mandated child abuse reporting first passed into law and then expanded, neglect cases now crowd out resources for the children who are in genuine danger of harm inflicted by their caregivers. Laws treat neglect as an available catch-all category for negative judgments against parents for many reasons contribute to laws that treat neglect as an available catch-all category:
- Fuzzy thinking about parenting and its challenges.
- An impatience with legal-line drawing.
- The genuine challenge of defining categories of harm to children with care.
- A failure to reckon with the harms wrought by state intervention against often defenseless.
- Racially unequal populations.
Yet, these broad categories have a clear impact, serving as justifications for further harming Black, brown, Native, poor, and single (usually female) parents — i.e., the already relatively powerless parents in our society. In this respect especially, the reconsideration of neglect laws is a racial and social justice imperative.
Of course, parents do have a legal obligation to take care of their children, and disapproval of parents who fail in these obligations is pervasive. Children who have no parents to care for them are entitled to have the state step in under the “parens patriae” doctrine. However, neglect laws go further and blame the parent for fundamentally failing their child, often without clarity about the specific duty of care the parent breached.
The view that labeling families “neglectful” can “help” as a triage gateway to services has not disappeared. Alternative gateways to needed services are not well developed for many categories of children.
However, reversing course is difficult once a family receives a neglect label in a state’s central register or in a juvenile court case. When asked to construe neglect laws, judges often act as rubber stamps instead. If cases make their way to the appellate court, appellate judges may throw up their hands, treating neglect as beyond the pale of definition. Judicial opinions declare that neglect is a “sui generis” category that judges “know when they see it.” Without clarity in the law to separate neglect from non-neglect, parents who have legal advocates are stymied in presenting a case for exoneration.
Recently, however, the sweep of neglect laws has received more focused criticism. As Professors Richard Barth and Jill Duerr-Berrick and their colleagues state:
“Additional confusion may arise due to how neglect is deﬁned in some state policies guiding reporting. The large majority of states include in their deﬁnition lack of supervision and abandonment, lack of medical care, and some form of lack of basic needs; they also range from requiring risk of harm to actual harm in order to respond (Rebbe, 2018). Many states try to differentiate between what may be termed, involuntary neglect—conditions associated with poverty alone—from cases that should be determined as maltreatment because parental behaviors or inaction stem from more than lack of resources (Rebbe, 2018). … There are well-founded critiques regarding the variability of child neglect laws across the country (Milner & Kelly, 2020; Wald, 2014); efforts to clarify and narrow these deﬁnitional frames for certain forms of intervention are warranted (Day et al., 2021). On the other hand, it is not clear how such clariﬁcations should be implemented.”
These authors’ uncertainty to the contrary, it is possible to develop effective strategies for narrowing neglect. Indeed, several such strategies have already borne fruit, as discussed in the next section.
The American Law Institute has recently (in 2019) proposed a tightened research-based redefinition (a “Restatement”) of physical neglect (as distinct from educational neglect and emotional neglect). The authors agree that neglect laws are too vague and overbroad, stating, “Unlike the category of physical abuse, which addresses a relatively circumscribed set of parental behaviors, the category of physical neglect covers a wide range of parental behavior. Without a sufficiently narrow definition, the state could intervene in the lives of many families. In light of the potential harm to children and families stemming from involvement in the child-welfare system, as well as the threat to family integrity.”
The proposed restatement on physical neglect (civil law version) adopts a significantly tighter version of the law than is currently in effect in most states. Its governing standard provides “a child is physically neglected when the child suffers serious physical harm or is exposed to a substantial risk of serious physical harm as a result of the failure of a parent, guardian, or custodian to exercise a minimum degree of care in providing for the physical needs of a child.”
The challenge of narrowing and/or eliminating large swaths of neglect laws and practices has also been taken up by United Family Advocates (UFA), a bipartisan coalition working to advance policy change in the interest of families, and Let Grow, a national advocacy organization that pushes for laws and policies that promote children’s independence and resilience in place of state-mandated “helicopter” parenting. A model law drafted by United Family Advocates — drawing on 2012 Illinois legislative changes that narrowed neglect to the “blatant disregard” of “obvious danger to the child” that would result in “serious harm” — passed as an American Legislative Exchange Council (ALEC) model and one taken up by Let Grow too.
Children’s independence laws, promoted by Let Grow, which also narrow neglect definitions, passed in Utah in 2018 and in Oklahoma and Texas in 2021. In 2022, Let Grow is working with bipartisan coalitions of allies, including affected parents and family defense attorneys, psychologists, law professors, and school administrators, among others, on similar law proposals in Colorado, Nebraska, and South Carolina.
Beyond these positive, though incremental changes, however, it would make sense to abandon the neglect label altogether and substitute current law with specific harm categories that can be enumerated and specified more clearly, as in the discrete categories of “abandonment” or “failure to thrive.”
To be sure, some parents will remain unable or unwilling or unfit to protect their child even when the means of caring for the child are available to them. But egregiously dangerous disregard for children’s safety can be defined without using overbroad language that sweeps the good in with the bad. There is no genuine need for a sweeping fault-finding (and ultimately punitive) adjudicatory system that uses the overarching language of neglect.
“Dependency” categories should be employed for parents who are incapacitated by mental health conditions or serious addictions that render them truly unable to care for their children. These parents likely would have their own needs better met by a system that did not use punitive labels for disabilities.
Such revisions would: (1) allow parents to know when their conduct crosses its line; (2) provide for meaningful legal defenses that are amenable to evidentiary proof; and (3) facilitate the collection of more meaningful data, including allowing the severity of the child’s need to be reported and evaluated. Current neglect laws fall very far from these benchmarks.
While the models developed by American Law Institute, UFA, ALEC, and Let Grow are excellent starting points, a broader coalition of supporters is needed to secure passage of reformulated approaches to neglect laws. Neglect overbreadth is impacting many populations, particularly communities of color, domestic violence survivors, formerly incarcerated parents, single mothers, and persons living in poverty. Successful neglect narrowing campaigns have worked hand-in-hand with strong family defense legal advocates, pro bono legal programs, and legislative allies. It is important to expand the resources and alliances (including, especially, expansion of legal advocacy programs) in order eliminate the harmful use of neglect laws and neglect reporting that oppress, rather than protect, children and families.
Absent limitations on what constitutes neglect, the notion that millions of adults in America are now under a duty to report reasonable suspicion of neglect to the authorities is absurd. Neglect itself is a category that should be erased as both meaningless and harmful to the assessment of children’s needs. Public systems that respond to children’s basic needs and address harm to children will continue to be needed, of course, but the process of neglect reporting and investigation diverts resources from families, adds to family poverty, and traumatizes its targets. Neglect (except in more carefully delineated categories like “abandonment”) should be removed from mandatory reporting laws. We should no longer require anyone to make a call, when they think a child is neglected, if we cannot state with clarity what child neglect is.