The Restatement of the Law, Children and the Law (the Restatement), provides courts with guidance as they attempt to balance these interests. This essay describes three sections of the Restatement that address psychological abuse, medical neglect, and involuntary termination of parental rights, and shows how they protect the child from serious harm while minimizing the risks to the child and family integrity.
I. Recognizing Psychological Abuse, but Not Psychological Neglect
There are many things parents do or do not do that may cause children emotional harm. Psychological maltreatment can have devastating and long-lasting effects on a child, but what constitutes “good parenting” is both contested, and culturally and historically contingent. Moreover, coercive state intervention can be harmful to children and their families. Consequently, the Restatement recognizes psychological abuse as a ground for state intervention but adopts a definition of psychological abuse that “aims to balance the state’s interest in protecting the child from harm while respecting family integrity, pluralism, and parents’ constitutional right to direct the child’s upbringing.” It does so by recognizing psychological abuse of a child in the civil child protection context in only two scenarios—(1) when a parent, guardian, or custodian “intentionally inflicts or attempts to inflict serious physical harm on a member of the child’s household in the presence of the child” and (2) when a parent, guardian, or custodian “engages in a pattern of terrorizing, humiliating, degrading, denigrating, or demeaning behavior toward the child.” The Restatement further safeguards against excessive state intrusion in the latter scenario by clarifying that parenting behaviors that fall below this threshold, even if harmful, do not constitute psychological abuse. It explains that “[a] parent’s lack of warmth when interacting with the child does not constitute psychological abuse.” Further, “[s]tate intervention is not warranted merely because the parent is not sufficiently nurturing or addresses the child with harsh words.”
The Restatement further limits state intervention by requiring “serious psychological harm” or a “substantial risk of serious psychological harm” in order to establish psychological abuse based on the infliction of harm on a household member in the child’s presence. Given the challenges of assessing the severity of psychological harm, the Restatement limits the definition to “severe anxiety, depression, withdrawal, aggressive behavior, or evidence of a diagnosable mood or thought disorder that substantially impairs the child’s judgment, behavior, or ability to function within a normal range for the child’s age, culture, and environment.”
The Restatement demonstrates respect for different parenting approaches by requiring proof of actual psychological harm to the child in cases alleging emotionally abusive conduct directed at the child. Given the harm to the child and to family integrity likely to result from state intrusion, the risk of harm that may result from emotionally abusive conduct is insufficient to warrant state intervention. As the Comment explains:
[T]he likelihood of harm resulting from a pattern of emotionally abusive conduct toward the child is . . . difficult to predict. The risk of harm in those cases depends on the particular child and the relationship with the actor and other family members who may provide a nurturing environment that minimizes the effect of the emotionally abusive conduct. Moreover, conduct that may be viewed as emotionally abusive under dominant parenting norms may not be perceived as such by the child or the child’s community. A requirement of actual harm allows for diverse parenting choices and practices across different communities and constrains the state from intervening except when necessary to protect the child from further harm.”
In contrast, the Restatement does not require proof of actual harm in cases in which a child witnessed a violent attack on a member of their household. The Restatement recognizes that, in those cases, serious psychological harm to the child is likely and thus state intervention may be necessary to protect the child when the perpetrator’s violent act placed the child at substantial risk of serious psychological harm.
A Restatement must “reflect the law as it presently stands,” but a reporter is “not bound by precedent that is inappropriate or inconsistent with the law as a whole.” A reporter “is instead expected to propose the better rule and provide the rationale for choosing it.” The Restatement’s section on Psychological Abuse reflects this principle. Although some states explicitly recognize psychological neglect of a child as a ground for state intervention, the Restatement recognizes only psychological abuse as a ground for state intervention. Citing the American Academy of Pediatrics, the Restatement notes that psychological or emotional neglect has been defined as the “failure to provide for a child’s emotional needs” and encompasses a broad array of parental behaviors, including detachment, limited interactions with the child, and “insufficient warmth, nurturing, or praise during any developmental period. . . .” While some children undoubtedly experience emotional harm as a result of such parental conduct, as the Comment explains, “[s]uch a broad definition labels as deficient the parenting practices of many individuals and fails to take into account class and cultural differences in parenting styles.” Recognition of psychological neglect as defined would impose dominant parenting norms and practices on all families and infringe on parental authority to raise the child without state interference except when the parent’s actions place the child at substantial risk of serious harm and would thus be “inconsistent with the law as a whole.”
The Restatement does not recognize psychological neglect as a ground for state intervention for yet another reason. Cases alleging psychological neglect often involve exposure of the child to intimate partner violence. In these cases, the state filed a neglect petition against the victim (usually the child’s mother) and alleged that the victim exposed the child to intimate partner violence by staying in a relationship with the perpetrator of the violence. As explained in the Comment, “[t]hose cases fail to adequately account for the power dynamics of intimate-partner violence and the obstacles and dangers that victims face when they attempt to end the relationship and leave their abuser.” While the Restatement recognizes the substantial risk of serious harm to a child who witnesses domestic violence, it explains that courts can protect the child by taking action against the perpetrator of the violence without penalizing the victim or the child by removing the child from the victim’s care. Thus, while the Restatement recognizes that an individual who assaults a member of the child’s household in the child’s presence may be found to have psychologically abused the child, it rejects cases finding that a victim of intimate partner violence psychologically abused or neglected the child merely by not leaving the abuser.
II. Respecting Parents’ Authority to Make Medical Decisions While Protecting Children from Harm
Parents have the authority to make decisions about their children’s medical care, but children must be protected when parents fail or refuse to provide children with medical care that is necessary to prevent serious harm or a substantial risk of serious harm to their physical or mental health. The Restatement recognizes that state intervention may be necessary in such cases but aims to ensure that children receive the care they need to prevent serious harm to their health while avoiding unnecessary state intrusion and harm to family integrity. The Restatement section on Medical Neglect does so by adopting a high threshold for state intervention. In a child protection proceeding, the Restatement requires the state to show that the parent’s conduct fell below “the minimum degree of care necessary to prevent serious harm or a substantial risk of serious harm to the child’s physical or mental health.” This standard is tantamount to a gross negligence standard. As the comment explains, the Restatement rejects “an ordinary-negligence standard [that] would potentially subject many parents to unwarranted state intervention [as] what is reasonable under the circumstances [may vary] depending on the parent and the parent’s resources, culture, and values.” Moreover, a “minimum-degree-of-care standard reduces the risk that the state will impose dominant parenting norms on low-income families and on racial, ethnic, cultural, and religious minorities” and “protects the family from state intervention when the harm to the child was not caused by any deficiency of the parent, guardian, or custodian.” The standard adequately protects children by allowing intervention when the parent’s conduct falls below a minimum degree of care because it is at that point that the child is likely to be at risk of future harm and state intervention is necessary.
Some of the most challenging medical neglect cases involve parents’ decisions, based on religious beliefs, to treat a child’s medical condition solely with spiritual treatment in lieu of conventional medical care. Although, as the U.S. Supreme Court has recognized, “[t]he right to practice religion freely does not include liberty to expose the . . . child to . . . ill health or death,” a majority of states have enacted spiritual treatment exemptions that “provide that a child who is treated solely with prayer in accordance with the beliefs and practices of a recognized religious denomination is not, for that reason alone, a neglected child.” A minority of courts have interpreted these statutes broadly. However, following the majority of courts that have interpreted spiritual treatment exemptions narrowly, the Restatement clarifies that a spiritual treatment exemption is not a defense to a finding of medical neglect “when the failure to provide medical care places the child’s health at substantial risk of serious harm.” It explains that in those cases, the adjudication of neglect is not based on the parent’s decision to treat the child solely with prayer, “but rather because the deprivation of medical care caused the child serious harm or placed the child at substantial risk of serious harm.” It further clarifies that regardless of the spiritual treatment exemption, “a court may order medical treatment to prevent serious harm or a substantial risk of serious harm to the child’s health,” even absent express authorization for intervention. Thus, the Restatement reflects respect for parents’ religious freedoms while protecting children from serious harm.
III. Reducing Terminations of a Parent’s Parental Rights
Termination of parental rights has been described as “the family law equivalent of the death penalty” because it permanently severs a parent’s legal right to maintain the parent-child relationship. Termination of a parent’s rights is rarely necessary to protect a child from harm by the parent, and in many cases, the state’s and child’s interest in a permanent home can be achieved without terminating the parent’s rights. Every state, however, recognizes various grounds for termination of parental rights and the federal Adoption and Safe Families Act (ASFA) typically requires states to file a petition to terminate a parent’s rights when the child has been in foster care for 15 of the previous 22 months. The Restatement’s Standard for Involuntary Termination of Parental Rights clarifies the limited circumstances under which the state may seek to terminate a parent’s rights and helps courts balance parents’ fundamental right to custody of their children, the state’s and child’s interests in permanency, and the potential harm to the child likely to result if the parent’s rights are terminated.
Many termination-of-parental-rights cases involve parents who are incarcerated or who have a mental illness or limited cognitive capacity. The Restatement clarifies that while mental illness and incarceration are statutory grounds for termination of a parent’s rights in some states, treating them as per se grounds for termination would violate the parent’s constitutional right to the care and custody of the child. As one Comment explains, “[m]ental illness or limited cognitive functioning is a ground for termination only when there is clear and convincing evidence that the parent’s mental condition renders the parent unable to provide the child with adequate care within a reasonable period of time even with reasonable supports. . . .” It cautions that a court “cannot presume that [a] parent’s mental condition renders [them] incapable of” parenting the child.
The Restatement similarly clarifies that incarceration per se is not a ground for termination of a parent’s parental rights and adopts the approach of courts that consider various other factors, including the parent-child relationship prior to and during incarceration, the type of crime committed (violent crime or theft, for example), how long the parent will be incarcerated, and the best interests of the child. The Restatement also limits the circumstances under which a court may terminate an incarcerated parent’s rights by requiring evidence that
[[bq]]the parent will be unable to provide for the child for a significant period of time, as determined by the child’s age and needs; the child does not have another parent willing and able to provide care; and the incarcerated parent has failed to make adequate provisions for the child’s care while the parent is incarcerated.
The Restatement explains that a court may not terminate a parent’s parental rights—despite statutory grounds and proof that the child cannot be safely returned to the parents’ care—absent clear and convincing evidence that termination of the parents’ rights is in the child’s best interests. It then enumerates factors that courts consider when determining whether termination of the parents’ parental rights is in the child’s best interests, including (1) “the child’s wishes,” (2) “the strength of the parent-child relationship and the potential harm to the child if the relationship were severed,” (3) “the existence of appropriate permanency alternatives to termination,” and (4) “whether the potential benefits of terminating the parent’s rights substantially outweigh the risk of harm to the child that may result from termination.” These factors emphasize the potential harm to the child if the parent’s rights are terminated.
The Restatement also highlights the problem of legal orphans—children whose parents’ rights have been terminated but are never adopted and, thus, have no legal parents—and addresses it by adopting a presumption against termination of the parent’s rights unless the child is likely to be adopted. As the Comment explains, “[t]erminating a parent’s rights when the child is unlikely to be adopted soon after termination does not further the state’s permanency goals. . . .” The Restatement also calls attention to permanency alternatives, such as legal guardianship and transfer of custody to a relative, that provide the child with permanency but do not require termination of the parents’ rights and thus allow the parent and child to maintain legal and emotional ties.
The Restatement will not eliminate the possibility of termination of parental rights for all parents as advocates of abolishing the family regulation system have proposed, but the standards it adopts, if followed, should significantly reduce the number of legal orphans and allow more families to maintain legal and emotional ties even when the parent is unable to assume parental responsibilities.
Conclusion
The Restatement sections discussed above guide courts as they balance the interests of parents, children, and the state. Many other Restatement sections—for example, the sections on physical abuse, corporal punishment, physical neglect, and children’s contact with third parties—similarly protect children from serious harm while minimizing the harm to the child and family integrity likely to result from state intervention. But even when not explicitly stated, the Restatement is a reminder to courts presiding over cases involving families and children that they must always be mindful of their responsibility to protect children while respecting parents’ decisions, family integrity, and pluralism.
