December 17, 2020 by Robert Franklin, JD, Member, National Board of Directors
As part of its efforts to limit state interference with parental authority, Lenore Skenazy’s organization, Let Grow, analyzed the 50 state laws and policies on child neglect. Diane Redleaf reports on the results that aren’t pretty (American Bar Association, 9/30/20).
The survey shows that almost all states fail to distinguish reasonable independence from neglect.
That is, when a parent decides that a child is old enough, mature enough, responsible enough, intelligent enough to do a particular thing unattended by a parent, “almost all states” allow child protective authorities and/or police to deem that decision “neglect” and take action against the parent. Never mind that the caseworkers and the police don’t know the child or his/her capabilities and the parent does. No, states empower those public officials to substitute their own guesses about appropriate parenting for those of the actual parent.
Let Grow divides state laws into three general categories:
Juvenile/neglect statutes that allow neglect findings when parents give children reasonable independence.
States that have criminal laws when parents leave children temporarily unsupervised.
States that expressly protect reasonable independence for children.
The first category is the most egregious, as Redleaf details.
Most of the states’ juvenile/neglect laws are very open-ended, allowing child protective investigators and their supervisors to declare a child neglected based on their own unbounded opinions as to what is “proper” or “necessary care.”…
Typical state statutes simply define lack of supervision as “neglect,” without any limitation (e.g., Alabama, Alaska, South Dakota, Virginia, and Washington, D.C.) that sets a standard as to how deficient the supervision needs or what supervision entails for children as they grow. Others hardly narrow their reach by adding the word “proper” or “adequate” to describing this form of neglect, presuming thereby that adults know what level of supervision is required without any specific guidance.
Needless to say, the adults have no such idea. Those laws are so vague and overly broad as to give caseworkers and police virtually limitless discretion about which children to take from parents and which to leave alone. They also look patently unconstitutional and should be attacked as such in court.
As the second category makes plain, a finding of neglect by a child welfare caseworker may be the least of a parent’s problems. He/she may face criminal liability as well.
On the criminal side, many states have open-ended criminal endangerment laws. And while most states would allow prosecutions of children left alone, some states like Maryland are clear that children under 8-years-old cannot be unsupervised at all, on pain of criminal prosecution. Connecticut provides that children under 12-years-old can’t be left alone on pain of criminal penalties. Florida makes lack of “necessary supervision” a crime, and Montana treats any violation of a duty of care toward a child a criminal offense.
Some states are unusually punitive to parents who let their children sit in the car even for a few minutes, if the child is below a specified age, such as Hawaii’s law which provides that children under 9-years-old can’t be alone in a car for more than five minutes. Nebraska’s law contains a blanket prohibition without any stated age limit. Of particular note is the law of Louisiana, which provides a child can’t be in a car if the adult is more than 10 feet away—a law that on its face would make it hard for a parent to put their child into a car and then go return a grocery cart. Such draconian laws, if strictly enforced, would prevent parents from running simple errands without potentially running afoul of the state’s criminal law.
Again, those laws look to be plainly vague and overly broad in constitutional terms. They also seem to have little to do with children’s safety. The likelihood of a child being harmed by staying unsupervised in an automobile for five minutes or when the parent is farther than 10 feet away is vanishingly small.
Little reported or acknowledged is the fact that children in this country are overwhelmingly safe. In 2016, the Administration for Children and Families logged about 180,000 instances of child abuse out of about 72 million children under the age of 18. Of course not all cases of abuse were reported, but the fact remains that children are far more at risk in a moving car than they are from child abuse generally. And cases of abuse or abduction of children by strangers are rarer still. To an astonishing degree, these laws fail to reflect the lived realities of children in this country.
Finally, some states have taken a more sensible approach to what constitutes child neglect.
Utah is currently the only state with an explicit protection from neglect findings for children engaged in “independent activities.” But we read Kansas’s law as supporting the right of children to engage in independent activities, too, because (1) Kansas requires a likelihood of harm from the placement of a child into a situation that is “beyond their maturity,” (2) it expressly states that the parent must have the financial means to avoid putting the child into such position, and (3) it also has a very strong policy that encourages independence (see discussion below).
In short, states have a long way to go before they appropriately limit their own power to intervene in families’ lives and parental decision-making. Thanks to Lenore Skenazy and Let Grow for taking the fight to those states and raising awareness of one of the worst problems besetting parents and children.