AEI American Enterprise Institute for Public Policy Research 1150 Seventeenth Street, N.W., Washington, D.C. 20036 (202) 862-5800 STATEMENT OF DOUGLAS J. BESHAROV* BEFORE THE SELECT COMMITTEE ON CHILDREN, YOUTH, AND FAMILIES MARCH 3, 1987 *Douglas J. Besharov, J.D. , LL.M. , is a Resident Scholar at the American Enterprise Institute, Washington, D.C. He was the first director of the U.S. National Center on Child Abuse and Neglect, 1975- 1979. His most recent book is The Vulnerable Social Worker: Liability For Serving Children and Families (National Association of Social Workers, Silver Spring, MD 1985). Thank you for inviting me to testify before you today. The Select Committee has been an important force for bringing attention to the needs of children, youth, and families. Besides your many other contributions, Mr. Chairman, I know that your personal efforts were singularly responsible for child sexual abuse being a matter of specific federal action. And, from my work on welfare reform, I know of Congressman Coats' deep concern over family breakdown and its personal and societal consequences. In accordance with Mr. Miller's letter of invitation to me, I will be focusing my remarks on the problem of "unfounded" reports. However, before doing so, I want to emphasize the importance of strong child protective efforts at the state and local level--and of strong yet flexible leadership at the national level. The nation's child protective capacity is many times greater now than it was ten short years ago. Given the choice between what things were like then and what things are like now, I would unhesitantly chose our present system--warts and all. But that is not to say that we cannot try to do better. That is the spirit in which I hope that you will take my remarks. In the past twenty years, there has been an enormous expansion of programs to protect abused and neglected children, in large part encouraged by federal funding. In 1985, more than 1.9 million children were reported to the authorities as suspected victims of child abuse and neglect. This is more than twelve times the estimated 150,000 children reported in 1963. Specialized "child protective agencies" have been established in all major population centers. Federal and state expenditures for child protective programs and associated foster care services now exceeds $3.5 billion a year. In part because of the impetus of the federal Child Abuse Prevention and Treatment Act, there now exists a nationwide infrastructure of laws and agencies to protect endangered children--and it has made a difference. Increased reporting and specialized child protective agencies have saved many thousands of children from death and serious injury. The best estimate is that, nationwide, child abuse deaths are down from 2-3,000 a year to about 1,000 a year. In New York State, for example, within five years of the passage of a comprehensive reporting law which also mandated the creation of specialized investigative Staffs, there was a fifty percent reduction in child fatalities, from about 200 a @ear to fewer than 100. Nevertheless, there are still major problems--which threaten to undo past improvements. Of the estimated one thousand children who die under circumstances suggestive of parental maltreatment each year, between 35 and 50 percent were previously reported to child protective agencies. Many thousands of other children suffer serious injuries after their plight becomes known to the authorities. At the same time, about 65% of all reports are labelled unfounded (or a similar term) after investigation. This, by the way, is in sharp contrast to 1975, when only about 35% of all reports were "unfounded." As I will try to describe, these two problems are connected--and can be addressed by an amendment to the federal child abuse act. Unfortunately, the determination that a report is unfounded can only be made after an unavoidably traumatic investigation that is, inherently, a breach of parental and family privacy. To determine whether a particular child is in danger, caseworkers must inquire into the most intimate personal and family matters. Often, it is necessary to question friends, relatives, and neighbors, a@ well as school teachers, day care personnel, doctors, clergymen, and others who know the family. Richard Wexler, a reporter in Rochester, New York, tells what happened to Kathy and Alan Heath (not their real names): "Three times in as many years, someone--they suspect an `unstable' neighbor--has called in anonymous accusations of child abuse against them. All three times, those reports were determined to be `unfounded,' but only after painful investigations by workers. . . . The first time the family was accused, Mrs. Heath says, the worker `spent almost two hours in my house going over the allegations over and over again. . . . She went through everything from a strap to an iron, to everything that could cause bruises, asking me if I did those things. [ After she left] I sat on the floor and cried my eyes out. I couldn't believe that anybody could do that to me. `Two more such investigations followed." "The Heaths say that even after they were `proven innocent' three times, the county did nothing to help them restore their reputation among friends and neighbors who had been told, as potential `witnesses,' that the Heaths were suspected of child abuse." Laws against child abuse are an implicit recognition that family privacy must give way to the need to protect helpless children. But in seeking to protect children, it is all too easy for courts and social agencies to ignore the legitimate rights of parents. Each year, over 500,000 families are put through investigations of unfounded reports. This is a massive and unjustified violation of parental rights. As Supreme Court Justice Brandies warned in a different context, "experience should teach us to be most on guard to protect liberty when the government's purposes are beneficent." I have also taken the liberty of attaching a case history of another troubling case. There are, of course, many reasons for the high unfounded rate-- evidence of child maltreatment is hard to obtain, overworked and inadequately trained workers may not uncover the evidence that does exist, and many cases are labelled unfounded as a means of caseload control or when there are no services available to help the family. Moreover, a certain level of unfounded reporting is necessary to make the system work; it is an inherent--and legitimate--aspect of reporting suspected child maltreatment. W* ask hundreds of thousands of strangers to report their suspicions we do not ask that they be certain. These realities, it seems to me, make an unfounded rate of 30-40 percent acceptable. It is the last 20 to 30 percent of unfounded reports that is the cause for concern. For the reasons I will describe, they could be removed from the system without threatening the fundamental mission of child protective agencies. The failure to do so imperils the future credibility of child protective efforts. The current flood of unfounded reports is overwhelming the limited resources of child protective agencies. For fear of missing even one abused child, workers perform extensive investigations of vague and apparently unsupported reports. Even when a home visit based on an anonymous report turns up no evidence of maltreatment , they usually interview neighbors, school teachers, and day care personnel to make sure that the child is not abused. And, even repeated anonymous and unfounded reports do not prevent a further investigation, as the Heath case illustrates. But all this takes time. As a result, children in real danger are getting lost in the press of inappropriate cases. Forced to allocate a substantial portion of their limited resources to unfounded reports, child protective agencies are increasingly unable to respond promptly and effectively when children are in serious danger. Ironically. by weakening the system's ability to respond, unfounded reports actually discourage appropriate reports. The sad fact is that many responsible individuals are not reporting endangered children because they feel that the system's response will be so weak that reporting will do no good and, indeed, may make things worse. According to the federal government's National Study of the Incidence and Severity of Child Abuse and Neglect, professionals--physicians, nurses, teachers, social workers, child care workers, and police workers--still fail to report half of the maltreated children whom they see. Each year, about 50,000 children with observable injuries severe enough to require hospitalization are not reported. Unreasonably high unfounded rates are a public relations disaster. Almost every journalist who covers children's issues knows that the number of missing children was grossly exaggerated--or at least misleading--and that the first journalist to write about it won a Pulitzer Prize. To be blunt, many reporters are now eager to challenge child abuse statistics and to "expose" what is really going on. Let me tell you about a phone call I received late last year. A local radio reporter called to ask what she could do to help her housekeeper of ten years who had just been reported for child abuse. The reporter said the allegations were "crazy." The housekeeper had been summoned to her twelve-year-old son's school because he had been misbehaving. She was required to take her son home. As she was leaving the school yard with her son, she whacked him across the rear with her hand . The principal saw this and made a report of suspected abuse on the basis of that one whack--nothing more. One more journalist is now convinced that there is something very wrong with the reporting process. The growth of VOCAL an organization of parents who claim that they were wrongly accused of child abuse and neglect, has also been encouraged by the high unfounded rate. VOCAL now has over 3,000 members, with chapters in more than 30 states. To the extent that VOCAL calls for better trained child protective workers coupled with a greater recognition of parental rights, I am a strong supporter of the organization--regardless of the guilt or innocence of its members. But one does not have to share this view to realize that VOCAL is becoming a powerful political force. In Minnesota, VOCAL members collected 2,000 signatures on a petition asking the Governor to remove Scott County prosecutor Kathleen Morris from office because of her alleged misconduct in bringing charges, subsequently dismissed, against twenty-four adults in Jordan, Minnesota. In Arizona, VOCAL members were temporarily able to sidetrack a $5.4 million budget supplement which would have added 77, investigators to local child protective agencies. I understand that VOCAL is about to commence a national letter writing campaign directed at the Congress. The purpose? To gain support for amendments to the federal child abuse act that would encourage states to do a better job protecting the rights of innocent parents--and their children. To ignore the present harmfully high level of unfounded reports is to court catastrophe. In the short run, it may be possible to avoid admitting that the reporting system has serious shortcomings. In the long run, though, already severe problems will worsen--and become more visible to outsiders. As more people realize that hundreds of thousands of innocent people are having their reputations tarnished and their privacy invaded while tens of thousands of endangered children are going unprotected, continued support for child protective efforts will surely erode. Child protective professionals have begun to respond. At the national level, the APWA, through its National Association of Public Child Welfare Administrators, and the U.S. Children's Bureau, under the leadership of Jane Burnley, have begun work on the problem of unfounded reports. So have many states. What should be the agenda for reform? I believe that the only way to lower the rate of unfounded reporting is: (1) to develop improved definitions (and guidelines) for what should be reported--and what should not be reported, and (2) to implement these definitions through public and professional education and through the screening of hotline reports. Few unfounded reports are made maliciously. Studies suggest that, at most, from 5 to 10% are knowingly false. Many involve situations in which the person reporting, in a well-intentioned effort to protect a child, overreacts to a vague and often misleading possibility that the child may be maltreated. Others involve situations of poor child care that, though of legitimate concern, simply do not amount to child abuse or neglect. In fact, a substantial proportion of unfounded cases are referred to other agencies for them to provide needed services for the family. Thus, we need better definitions of child abuse and neglect (incorporated into public awareness and professional education materials) that provide real guidance about what should be reported-- or not reported. Generalized statements about children who are "abused," or "neglected, " or "in danger" will not do. Unfortunately, better definitions will not come easily, for they require resolving a series of complex technical and controversial policy issues. Let me give just a few examples of areas in which technical work is needed. (There are many more.) Anonymous reports: Even though only about 15 percent of these reports are later deemed founded, all states accept anonymous reports because they sometimes identify children in serious danger who would otherwise go unprotected. However, this is no reason for investigating anonymous reports that can cite no specific reason to suspect maltreatment. One agency accepted a report that alleged nothing more than that "there are strange noises coming from next door." Matrimonial and Custody Cases: Divorce and its acrimony that frequently follows is a fertile ground for unfounded reports. Fear of criticism--and liability--is leading agencies to accept, unquestioningly, reports from estranged spouses. These reports cannot be rejected out of hand because a SMALL proportion involve real danger to children, as demonstrated by the Mammo case, described below. However , a method must be found to screen out the vast majority of obviously inappropriate reports. "Reasonable" corporal punishment cases: Until very recently, it was accurate to say that all states recognized the parental right to engage in "reasonable" corporal punishment. But, alas, our concern to identify children in "imminent danger," (more on that in a minute) is leading many agencies to investigate reports that, on their face, amount to nothing more than what courts would recognize as reasonable corporal punishment. Many of these parents need help in child rearing, of course, but, again, accepting and investigating the case only adds another unfounded report to the statistics. Behavioral Indicators: There is a tendency to consider the so-called "behavioral indicators" of child abuse, and especially of sexual abuse, on their own, without physical evidence, without statements of the child or others, without anything else, as sufficient reason to make a report. Intake workers are accepting reports from teachers and others that "Mary is shy in class," or that "Mary is over friendly." Behavioral indicators have a valid place in decision-making. They provide important clues for potential reporters to pursue, and they provide crucial corroborative evidence of maltreatment. But alone they are an insufficient basis for a report. There are many other explanations for such behavior. It is essential that this point be made. Otherwise, every shy or over friendly child in the country will be reported. Imminent Danger Cases: Agencies cannot wait until a child has suffered serious injury before acting. That is why all states allow reports of "imminent danger" or "threatened harm." However, the failure to articulate the reasons for believing that a child may be in danger of future abuse encourages vague reports that agencies feel they cannot reject without an investigation. Emotional Maltreatment: Once again, vague definitions--one state defines emotional neglect to include "the failure to provide adequate love"--encourage reports that cannot be rejected, but that are almost invariably deemed unfounded after investigation. Today, child protection is at a cross roads. Across the nation, child protective agencies are being pressed to accept categories of cases that, traditionally, have not been considered their responsibility-- and for which their skills do not seem appropriate. In community after community, the dearth of family oriented social services is pushing CPS away from its traditional role as a highly focused service for children in serious danger--and toward an all encompassing form of child welfare services. In essence, CPS is paying the price for its past successes. People know that a report of possible maltreatment will result in action. As a result, "child abuse" hotlines are being barraged by reports that, at base, really involve adolescent truancy, delinquency, school problems, and sexual acting out, not caused by abuse or neglect; children who need specialized education or residential placement; parent-child conflicts with no indication of abuse or neglect, and chronic problems involving property, unemployment, inadequate housing, or poor money management. Many of these reports result in the family receiving much needed services, and many do not. But either way, another unfounded report is added to the statistics. In effect, CPS is being used to fill gaps in that should be a community wide child welfare system. Some child advocates welcome this development, because, they think, it will mean more money for desperately needed services. But sooner or later, politicians will recognize what is happening and will cut us back. Then, we will be in real danger of losing the progress that has been made. Even if this strategy were more likely to succeed, we should shun it. For, the CPS process is a coercive often traumatic one that should be limited to situations in which the danger to the child overrides our traditional reluctance to force services on unwilling parents. We must make it clear that CPS cannot be all things to all people. Here, the major challenge will be to develop definitions that distinguish between those child rearing situations that we think are lees than optimal--and for which we would like to offer voluntary services--from those that pose a clear and present danger of serious injury--and for which we are prepared to intervene involuntarily, through court action and removal of the child, if that is necessary. Better definitions of reportable conditions will go only part way in reducing the level of unfounded reports. The new definitions need to be enforced. This is the role of intake staff. Afraid that a case they reject will later turn into a child fatality, most agencies now shirk their central responsibility to screen reports before assigning them for investigation. According to the American Humane Association, only a little more than half the states allow their hotline workers to reject reports, and even those that do usually limit screening to cases that are "clearly" inappropriate . Imagine a 911 system that cannot distinguish between life threatening crimes and littering. That is the condition of child abuse hotlines. Many hotlines will accept reports even when the caller can give no reason for suspecting that the child's condition is due to the parent's behavior. This writer observed one hotline accept a report that a seventeen year old boy was found in a drunken stupor. That the boy, and perhaps his family, might benefit from counseling is not disputable. But that hardly justifies the initiation of an involuntary, child protective investigation. Child protective agencies used to do much more screening. But that was before the recent media hype and before cases like Mammo V. Arizona, where the agency was successfully sued for the death of a young child after the agency refused to accept a report from the non-custodial father. Overreacting to cases like Mammo v. Arizona, some child protective agencies assume that they should not screen reports at all; that is, that they must assign all reports for investigation. This is a mistake. The proper lesson to be drawn from Mammo, and cases like it, is not that screening reports is disallowed, but, rather, that decisions to reject a report must be made with great care. Just as child protective agencies have a duty to investigate reports made appropriately to them, they also have a duty to screen out reports for which an investigation would be clearly unwarranted. They should reject reports whose allegations fall outside the agency's definitions of "child abuse" and "child neglect," as established by state law. (Often, the family has a coping problem more appropriately referred to another social service agency.) They should also reject reports when the caller can give no credible reason for suspecting that the child has been abused or neglected. And, they may have to reject a report in which insufficient information is given to identify or locate the child (although the information may be kept for later use should a subsequent report about the same child be made) . The kind of intake decision-making that I am proposing cannot be done by clerks, nor by untrained caseworkers. The agency's best workers should be assigned to intake--where they can have the greatest impact. In fact, I would suggest that we make assignment to intake a promotion, in which we place our most experienced and qualified staff. Doing something about the problem of unfounded reports (and it seems to be still growing) requires telling the American people that current reporting statistics are badly inflated by unfounded reports. Up to now, most child welfare officials--in federal, state, and local agencies--have lacked the courage to do so, because they fear that such honesty will discredit their efforts and lead to budget cuts. Therefore, the necessary first step in reducing harmfully high rates of unfounded reporting of child abuse must be a general lowering of child abuse rhetoric. A more responsible use of statistics would be a good start. Child maltreatment is a major social problem. Each year, about 1,000 children die in circumstances suggestive of child maltreatment. But its extent and severity must be kept in perspective. We regularly hear that there are upwards of a million maltreated children (including those that are not reported). This is a reasonably accurate estimate, but the word "maltreatment" encompasses much more that the brutally battered, sexually abused, or starved and sickly children that come to mind when we think of child abuse. In 1979 and 1980, the federal government conducted a National Study of the Incidence and Severity of Child Abuse and Neglect. According to this Congressionally mandated study, which collected data for twelve months from a representative sample of twenty-six counties in ten states, only about 30 percent of all "maltreated" children are physically abused, and only about 10 percent of these children (3 percent of the total) suffer an injury severe enough to require professional care. Thus, 90 percent of the cases labelled "physical abuse" are really situations of excessive or unreasonable corporal punishment which, although a matter of legitimate government concern, are unlikely to escalate into a serious assault against the child. (Other data from the Incidence Study indicate that fewer than one in five of these cases presages anything resembling child abuse or neglect, let alone serious injury to the child.) Sexual Abuse makes up about 7 percent of the total. This is probably a low figure: major efforts are being made to increase the reporting of suspected child sexual abuse. Physical neglect makes up about 17 percent of all cases. The three largest categories are: failure to provide needed medical care (9 percent); abandonment and other refusals of custody (4 percent); and failure to provide food, clothing and hygiene (3 percent). Physical neglect can be just as harmful as physical abuse. More children die of physical neglect than from physical abuse. But, again, the number of cases where serious physical injury has occurred is low, perhaps as low as 4 percent of neglect cases. 1 The remainder of these cases, about half, 2 are forms of educational neglect and emotional maltreatment. Educational neglect, at 27 percent, is the single largest category of cases. Emotional abuse, mainly "habitual scapegoating, belittling and rejecting behavior," accounts for about 20 percent of the total. And various forms of emotional neglect, defined as "inadequate nurturance" and "permitted maladaptive behavior" are 9 percent of the total. While some forms of emotional maltreatment are deeply damaging to children, most cases do not create the need for aggressive intervention as do cases of serious physical abuse or neglect. Almost 85 percent of all cases of "child maltreatment," then, involve excessive corporal punishment, minor physical neglect, educational neglect, or emotional maltreatment. These are really forms of emotional or developmental harm to children that pose no real physical danger. Moreover, the overwhelming bulk of these cases, which are most accurately considered forms of "social deprivation," involve poor and minority families. Compared to the general population, families reported for maltreatment are four times more likely to be on public assistance 3 and almost twice as likely to be black. 4 . Furthermore, maltreating parents tend to be the "poorest of the poor." Most research confirms one study's finding that, as between maltreating and non-maltreating families, the former "lived under poorer material circumstances, had more socially and materially deprived childhoods, were more isolated from friends and relatives, and had more children." 5 About 30 percent of abused children live in single parent households and are on public assistance; the comparable figure for neglected children is about 45 percent. 6 Protecting these children means lifting their parents from the grinding poverty within which they live. Recognizing these realities would go a long way toward reducing the current hysteria about child abuse. It would also make people less likely to believe that every bruised child is an abused child. Few unfounded reports are made maliciously. Most involve an honest desire to protect children coupled with confusion about when reports should be made. Hence, much can be done to reduce the number of unfounded reports without discouraging reports of children in real danger. Let me summarize the points I have tried to make in this statement. First, reporting laws and associated educational materials and programs must be improved to provide practical guidance about what should be reported--and what should not be reported. They should call for reporting only when there is credible evidence that the parents have already engaged in seriously harmful behavior toward their children or that, because of severe mental disability or drug or alcohol addiction, they are incapable of providing adequate care. The parent's behavior need not have already seriously injured the child for it to be considered seriously harmful. A report should be required if the parent's behavior was capable of seriously injuring the child. The criminal law would call such behavior an "attempt" or "reckless endangerment . " While such terms are not applicable to child protection (because they imply a higher degree of intent than is necessary and because they seem to exclude situations of child neglect) , the criminal law's fundamental reliance on past wrongful conduct as the basis for state intervention has equal validity for child protection intervention. Second, the liability provisions of state reporting laws should also be modified. Most reporting laws penalize the negligent failure to report while granting immunity for incorrect, but good faith, reports. This combination of provisions encourages the overreporting of questionable situations. Fearful of being sued for not reporting, some professionals play it safe and report whenever they think there is the slightest chance that they will subsequently be sued for not doing so. To reduce this incentive for overreporting, six states already limit civil liability to "knowing" or "willful" failures to report. All states should do so. Third, child abuse hotlines should fulfill their responsibility to screen reports for initial sufficiency. They should reject reports whose allegations fall outside the agency's definitions of "child abuse" and "child neglect," as established by state law. They should also reject reports when the caller can give no credible reason for suspecting that the child has been abused or neglected or when its unfounded or malicious nature is apparent. Fourth, the Federal Child Abuse Prevention and Treatment Act should be amended to encourage states to better protect the rights of parents accused of abusing and neglecting their children. Since the passage of the Child Abuse Prevention and Treatment Act in 1974, it has mandated states to seek the reporting of ever greater numbers of abused children--without regard to the validity or appropriateness of reports. While this one dimensional approach may have been justified ten years ago when few reports were made, these requirements have remained essentially unchanged in the face of ever increasing numbers of unfounded reports. On the other hand, I would not recommend major changes in the Act. Basically, it has served us well. And this is not the time for major change. In this, as in all areas, a series of small, carefully considered steps is more likely to lead us in the right direction than is one long leap. Therefore, I would recommend only two changes in the Act. First, states should be required to demonstrate that they are making efforts to encourage more accurate reporting. This would include: (1) the preparation and dissemination of educational.and training materials that describe what should not be reported--as well as what should be reported, and (2) the adoption of better screening policies and procedures for hotline. Second, states should be required to demonstrate that they are making efforts to prevent children from being removed from their homes without an appropriate investigation--unless they appear to be in imminent danger. Such a requirement would merely apply to child protective decision-making the IV-E requirements of reasonable or "diligent" efforts to return children who have been placed in foster care. Conclusion: To continue to ignore the present harmfully high level of unfounded reports is to court disaster. In the short run, it may be possible to avoid admitting that the reporting system has serious shortcomings. In the long rum, though, already severe problems will worsen--and become more visible to outsiders. As more people realize that hundreds of thousands of innocent people are having their reputations tarnished and their privacy invaded while tens of thousands of endangered children are going unprotected, continued support for child protective efforts will surely erode. Child maltreatment is a serious national problem. It need not be exaggerated in order to gain public and political support. Thank you for giving me this opportunity to speak to you. NOTES 1 American Association for Protecting Children, Highlights of Official. Child Neglect and Abuse Reporting: 1984, p.16, Table 6 (1986). 2 The total comes to 110 percent because there is a slight overlap among categories of cases. 3 American Humane Association, Trends In Child Abuse and Neglect: A National Perspective, p.24, Table IV-3 (1984). 4 Trends In child Abuse and Neglect: A National Perspective, supra n.3, p.97, Table A-IV-7. 5 Horowitz & Wolock, "Maternal Deprivation, Child Maltreatment, And Agency Interventions Among Poor Families," in L. Pelton, ed., The Social Context of Child Abuse and Neglect, pp.137, 138, 161 (1981). 6 Trends In Child Abuse and Neglect: A National Perspective, supra n.3, at p.97, Table A-IV-7.