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If the central registry is going to function at any utilitarian level, it must include suspected cases as well as adjudicated cases.
Now, I don't want to berate the subject, but still talking about the central registry, on page 9, lines 7 and 8 there is a provision which states that anytime any person identified in a report in the central registry may receive upon request all information pertaining to them. I would assume that the phrase "any person identified in a report" would include the suspected abuser.
We would suggest that if the suspected abuser is given access to all the information in the central registry, including the name of the person who made the report, this is going to have a chilling effect on the reports that you receive.
Perhaps a more pragmatic phrasing would be to give the identified person, the suspected abuser, all information excluding the name of the reporter and excluding the name of the persons who have cooperated in the investigation.
FURTHER AMENDMENTS PROPOSED
I will move on to Title 2, and again I am talking about H.R. 15918. I am just going to throw out a number of short observations.
Perhaps the phrase "sexual abuse" should be redrafted to read "sex ual molestation," which we believe has a broader connotation and would offer a little more protection to the child.
We suggest that not only reports of suspected abuse, the fait accompli, be required, but add a phrase, "circumstances and conditions which would reasonably result in abuse" be reported also.
If you are truly interestd in the health and safety and the welfare of the child, and both bills talk about this in the opening remarks, then it seems to me ludicrous to wait until there is some irreversible injury. I mean, the basic purpose of the mandatory reporting statute is to identify children in peril as quickly as possible, and offer them protective services.
Language such as "circumstances or conditions which would reasonably result in abuse" is used in the Colorado law, and about seven other States, and it seems to work relatively well.
We are not going to take any firm stand on who should do the investigation. Up to about 6 months ago I was firmly convinced that it should not be the police department. In the last 6 months I have revamped my position somewhat. There are a number of police agencies around the country doing an excellent, excellent job.
There is no reason why the police department in the District of Columbia can't do the same thing, with the caveat that there is adequate training.
One of the reasons that we are favoring Mr. Fraser's bill, H.R. 15918, is because it requires a rather extensive investigation.
In too many cases-and I do a fair amount of traveling around. the country-we see sloppy, superficial investigations which have devastating results.
The recommendation of any team can only be as good as the information that it has at its disposal, and this, of course, is directly correlated with the quality of the investigation.
In simple terms, a lack of specificity in a particular bill may later lead to bureaucratic nonfeasance. Again, I have seen it happen again and again.
My time is running short so I will just make a number of very, very quick observations.
In Section 203, page 12, regarding immunity, it is not bad, but why not add a provision, "presuming good faith of the reporter."
In Section 205, page 13, relating to color photographs and x-rays, we believe that it is absolutely necessary, and again should be contained in any bill that comes out of this committee.
Section 206, page 14, providing a penalty for a failure to report, I go 50-50. I don't really know how much pragmatic value it has. I have never heard of a case being prosecuted criminally for a failure to report.
There may be some argument for including a provision for civil liability for a failure to report. Now, it is true you can accomplish the same ends through the doctrine of negligence per se, but again perhaps there is some value in having it down on paper in black and white. Section 208, I just find it inconsistent with the tenor of both bills. I can't find any justification for such a doctrine. I personally find it repugnant. That is my personal observation.
Finally, we are in complete agreement with Mr. Fraser's bill for creating a guardian ad litem. This has been adopted in law in Colorado. Our program has been going for about two years. It is working well, and we think it would work well in the District of Columbia also.
In summary, we are enthusiastic about the contents of both prepared bills. However, I, the National Center, and the Education Commission of the state favor and will endorse H.R. 15918, with certain reservations that I have stated here and in the prepared text.
Thank you very much.
[Mr. Fraser's full statement follows:]
PREPARED STATEMENT OF BRIAN G. FRASER, STATE ATTORNEY, THE NATIONAL CENTER FOR THE PREVENTION AND TREATMENT OF CHILD ABUSE AND NEGLECT, DENVER, COLORADO; CONSULTANT FOR THE EDUCATION COMMISSION OF THE STATES
I would like to take this opportunity, on behalf of The National Center for the Prevention and Treatment of Child Abuse and Neglect, The Education Commission of the States and myself, to congratulate the drafters of this creative and innovative piece of legislation. We do, however, have a few comments concerning the language of the text which we feel should be given very strong consideration.
MULTIDISCIPLINARY CHILD PROTECTION UNIT
Initially, let me say that we commend the idea of the creation of a multidisciplinary child protection unit within the District of Columbia. We have advocated this concept in the past and we will certainly lobby for its inception in other states. We fully agree that the enumerated purposes should be an attempt to protect the interests of the child, to prevent further abuse and, where possible, to preserve the family unit. We would suggest, however, that perhaps a fourth purpose should be specifically enumerated in the purpose clause: "An attempt to further cooperation between various states and state agencies in the area of child abuse."
Under Title 1, we are pleased to note that the drafters have indicated a belief that the utilization of private as well as public services is necessary. We fully
agree. We must begin to recognize that there are many tertiary services available within the community, and that these tertiary, private services can play as great a role as can the public agencies. We believe, however, that the language on page 3, lines 11 and 12, should be altered to read:
The director shall coordinate efforts and shall contact (striking the words when appropriate) concerned public and private agencies, groups or individuals within the community in an attempt to coordinate and make available all services and resources existing within the district in an attempt to accomplish the purposes of this act."
(The services referred to in the above are preventive, diagnostic and treatment services.) In brief, we feel that the services available within the private sector are important enough to require some form of mandatory recognition, organization and utilization.
You may wish to consider a completely separate, objective and neutral committee of persons to perform the functions outlined in Section 101 (c)-Report of Activities and Recommendations. We fully agree with the responsibilties that you enumerate in Section 101(d) (3) for individual members of the team. However, at the same time, we fell that the team as a unit has certain obligations. These should be specifically noted to include:
1. The screening of each and every report of suspected child abuse and neglect-founded or not.
2. Making the determination of whether or not this particular case should be filed in the juvenile court, and
3. Making the determination of what treatment services available within the community would be beneficial and what treatment services should be so allocated.
In regard to point 2 above, we feel that every child should have the right of access to the courts in order to fully protect his interests (and this is fully consistent with the purposes that you enumerate under Title 1). Accordingly, we would suggest that a petition automatically be filed on behalf of the subject child when any one member of the "team" feels that it would be in his (the child's) best interests. It is, therefore, suggested that the language in Section 101 (b) (2) be somewhat expanded.
We think it imperative that you continue to limit the role of the Center's attorney to research particular aspects of the various child abuse cases. In no situation should this attorney represent the parents, the child or the petitioner. Furthermore, we believe that the term "credible evidence" as used in Section 102(b)-reference to the retention of a report in the central registryclearly indicate that this does not mean evidence necessary to support a petition in the juvenile court, but something substantially less. If you allow the term "credible evidence" to become too strictly defined, you lose much of the diagnostic value of the central registry.
Finally, under Title 1, we must state that we are fully in accord with any attempt to provide educational and training materials to the lay public. Various research projects (and other pieces of model legislation) have indicated time and time again that the lay public, to a great extent, is not aware that child abuse in fact, exists and how to identify it. It is suggested that the Center be specifically responsible for any publicity campaign directed toward the public and any training programs designed for the para-professional and professional working within the area of child abuse.
Under Title 2, of the proposed act, we would suggest that the specific definition of child abuse, Title 16, Section 2301(23)-page 14, be somewhat more consistent with the definition noted on page 9, lines 13, 14, 15-"a non-accidental physical injury." Furthermore, we would suggest that the term "sexual abuse" be struck in every instance and the term "sexual molestation" be used to replace it. Sexual molestation, it is felt, has a broader connotation and would be somewhat more appropriate in this case. We would suggest that the phrase "promptly exchange reports" (Section 202)-police to Center, Center to police be specifically interpreted to mean an exchange within 24 hours. Furthermore, we think it imperative that a phrase or two be added to acknowledge the fact that it is a multi-disciplinary team which decides the pivotal questions as to whether or not this is abuse, whether or not it should go to the juvenile court and what treatment is necessary. There is no quarrel with a police investigation but final decision-making must rest with this multi-disciplinary group (vs. the old tra
ditional unilateral decision-making made by the police department or the department of social services).
Section 203 should be expanded to presume the good faith in the making of the report. And, I would seriously debate the moral validity of a section such as 207 (abrogation of requirements for spiritual treatment). If you define the purpose of this act to be the child's best interests, than this is in direct conflict with Section 207. Section 207 is a protection of parental rights not children's rights.
Section 9(e) of 208 is excellent and should be retained at all costs. It will provide helping agencies with a tool necessary to protect children's lives rather than wait for a repeated attack and then act. There is, in short, certain validity in differentiating abuse as "fait accompli" and potential, but making provision for both.
Also, we would very strongly suggest that you include a provision within the act granting to qualified physicians the right to take and record X-rays for internal injuries and color photographs of superficial body trauma; the sad fact is that by the time these cases come to court there is often no residual evidence of past damages-and this is true for both bone damage as well as superficial skin trauma. You simply cannot protect the child's interests until you have adequate evidentiary tools.
We believe that in certain cases (physician feels that the child has been abused and to return him immediately to the parents would place him in imminent danger) the physician should have the right to assume temporary custody of the child-with the condition that a report be filed immediately. This particular approach has been adopted by a number of states recently for the particular purpose of providing a continuity of care and to insure that a child who has been identified as being seriously at risk is not lost. For these same purposes, we would suggest that the District of Columbia consider a similar clause.
In those cases in which the text of HR 15918 and the text of HR 15779 are the same, the comments contained in the first portion of this written statement shall also be the same. We would suggest that 102(b), page 6, line 19, be rephrased to read that the director shall file a petition on behalf of the subject child if one member of the multi-disciplinary team feels that it is necessary. Other than on this particular point, we are in full accord with the provisions of Section 102.
We take no position concerning who should be responsible for making the investigation once a report of child abuse has been initiated. We would only suggest that whatever agency is responsible be required to do a thorough job in a non-punitive manner. We fully agree that there should be an option open to the investigating agency for a physical, psychological or psychiatric evaluation of the various family members (Section 202, page 12, line 12).
We strongly support a provision such as Section 205, page 13, line 16.
All factors being considered, we would suggest that HR 15918 is perhaps a better bill. In conclusion, we note that appropriate comments made concerning HR 15779 may apply to provisions of HR 15918, and in these cases the appropriate deletion or addition should be made.
BRIAN G. FRASER,
July 22, 1974.
Mr. MAZZOLI. Thank you very much. I appreciate your testimony. It has been very helpful to us.
Dr. AREEN. Thank you.
Mr. Chairman, members of the committee, ladies and gentlemen, I appear before you today as a professor of law from Georgetown University, as Director of the Juvenile Justice Clinic there, and as a member of the Family Rules Committee of the Board of Judges of the Superior Court of the District of Columbia.
Thank you very much for inviting us to testify on the bills. The Juvenile Justice Clinic, I might explain to you, is a program that Georgetown University runs which trains and provides 20 thirdyear law students to serve as legal counsel, under the supervision of
law faculty members, for children in court proceedings here in the District of Columbia.
This past year our clinic lawyers represented over 200 children involved in cases of child abuse, neglect, and delinquency.
In addition, as part of our work in the area of the legal rights of children, we have just completed a survey of the current abuse, neglect and termination of parental rights statutes of all 50 States.
SOCIAL SERVICES REQUIRED
Our work in this area reveals the need for some changes in the present legal procedure followed in child abuse and neglect proceedings which we shall discuss in a moment.
But the primary problem in the District of Columbia at the present time, we believe, is the lack of adequate social services for families with abuse or neglect problems.
If the District acts at all-and often no help is provided, even when it should be--it tends only to take the abused or neglected child from his family.
Little or no aid of any sort-and I am thinking of such things as homemaker services, group or family therapy, career counseling, and so forth-is thereafter provided to the parents of that child.
Not surprisingly, when the case is reviewed in 2 years, the court determines that there has not been enough improvement in the family situation to justify returning the child.
One consequence of this unfortunate pattern is that the current average stay in foster care in the District of Columbia is an unbelievable 7 years. Let me emphasize that, 7 years.
Many of these children thus never enjoy the security and continuity of a permanent home, for they leave foster care at the end of 5 or 7 or 10 years, not to go home, but to the street, simply because they have now turned 18.
Studies, of course, have well documented that the longer children remain in foster care, the more prone they are to signs of emotional disturbances.1
In part, this reflects the fact that the longer a child stays in foster care, the higher the odds are that the child will be moved again, and again, which can seriously hurt the child's already fragile sense of self-worth.
A 1963 study, for example, found that 28 percent of the children in foster care had been moved to three or more foster homes.2
Currently, I might point out, there are over 2,500 children in foster care in the District of Columbia. And remember, their average stay currently is seven years.
Now, the paradox of permanent, so-called "temporary" foster care, of course, need not and legally should not continue.
A greater focus on working with the original family to reunite the child and parents should help most of the problem. For those few who cannot be reunited-as when the parents have simply disappeared― adoption should be encouraged.
1 See, e.g., Fanshel and Maas, Factorial Dimensions of the Characteristics of Children in Placement and Their Families, 33 Child Development 123 (1962).
2 Children's Bureau, U.S. Dept. of Health, Education and Welfare, Children, Problems and Services in Child Welfare Programs (1963).