March 29, 2012 Articles

Protecting Mothers Against Gender-Plus Bias: Part 2

By Diane L. Redleaf, Melissa L. Staas, and Jonathon N. Fazzola

Mothers are predominantly the targets of child-protection system intervention. In Part 1 of this article, we reviewed the basis for our observation, derived in significant part from the Family Defense Center's case-handling experience and our review of research and data, which stated that mothers are often subject to gender-plus discrimination in the child welfare system. The child-protection system frequently relies on unreasonable assumptions that the mother should have or could have acted differently because of a gender stereotype rather than evidence of abuse or neglect. In many of the cases that affect the mothers in the center's caseloads, the allegations against the mothers are based solely on their status as mothers, "plus" their membership in another highly stigmatized category.

In 2011, our offices handled 87 Mother's Defense Project cases (of 526 total cases that open during the year). Eighty-one percent of these cases were handled on a complete fee-waiver basis (compared to 57 percent of all cases in our offices). Because our offices only accept cases in which there is a strong claim or defense, the mothers we represented in the Mothers' Defense Project have simultaneously strong, and often very compelling, cases on the merits and relatively few financial resources to address their legal needs.

The three largest gender-plus categories in our Mothers' Defense Project are domestic violence victims (25 cases in 2011), mothers with a mental illness (22 cases in 2011), and nonoffending mothers held liable for the actions of a partner (37 cases in 2011). In Part 3 of this series, which will appear in the Summer 2012 issue of Children's Rights Litigation, we will describe our work on behalf of mothers in two additional categories—extreme poverty and teen moms—including mothers in multiple gender-plus categories, and we'll discuss one very promising legal strategy the center has pursued to reduce the operation of gender bias in the child-protection system in Illinois.

Domestic-Violence Victims
The misuse of child-protection authority against mothers who are themselves victims of domestic violence is well-documented nationally through the efforts of the National Council of Juvenile and Family Court Judges "Greenbook," a policy guide for handling domestic violence cases in the context of the child welfare system that was published in 1999, and the successful litigation on behalf of domestic-violence victims against the New York City Administration of Children's Services in Nicholson v. Scoppetta, 344 F.3d 154 (2nd Cir. 2003) (challenging as a violation of the Fourteenth Amendment the separation of children and mothers who are domestic-violence victims). See Family Defender, Issue 3 and Issue 5.

However, throughout the United States, mothers continue to be the target of child-protection investigations, with rampant threats of separation from their children, actual separation, findings of abuse or neglect, and placement in abuse/neglect registers, even when the mother is the primary or sole victim of abuse and the children were entirely unharmed. These findings occur even when the mothers have taken all reasonable action they could possibly take to protect themselves and their children. Because domestic-violence victims face dangers to themselves and their children that escalate at the time they attempt to leave the relationship, inappropriate state intervention can be particularly counterproductive and may even contribute to keeping the mother/victim trapped in an abusive home.

Hannah B.'s recent case with the center was a case in point. A well-meaning friend called the police, seeking a well-being check on Hannah. When the police arrived, Hannah was fine. As soon as Hannah's husband thought the police had left, however, he attempted to choke her, punched her, and pulled out some of her hair. The couple's one-year-old baby was asleep in her own room throughout the incident; there was no evidence the baby was ever aware of violence against her mother. When the police, waiting outside, heard Hannah's cries, they came back and arrested Hannah's husband. They also called the child-protection authorities, who in turn initiated an investigation against both Hannah's husband and Hannah. The child-protection investigator accused Hannah of child neglect, threatened her with removal of her infant from her care if she did not immediately leave her husband (while offering no support to enable her to safely do so), forced her to give up custody of her infant to relatives in a distant state to avoid the filing of a juvenile court petition against her, and ultimately "indicated" her as guilty of child neglect for creating an "environment injurious" to the welfare of her child. Through this process, Hannah repeatedly felt a need to minimize the harm her husband had inflicted on her to avoid the filing of a juvenile court action against her, despite the lack of any fault on her part in the assault that precipitated child-protection intervention.

In effect, the child-protection system used Hannah's status as an unprotected victim of her husband's violence to compound her powerlessness rather than help her keep custody of her daughter or remain free of violence herself. And because Hannah was a psychologist who worked with children, the "indicated" finding against her had the ironic impact of causing her to lose her job and become even more dependent on her husband for financial support. While the center ultimately won Hannah's appeal and got the indicated finding removed, the four months of proceedings in her case diminished Hannah's trust in the authorities' ability to help her, leaving her more unwilling to reveal her injuries and more fearful of taking steps to end the violence against her or to get the help she desperately needed.

Sometimes, even mothers who do take immediate action to protect themselves after a violent incident against them find themselves embroiled in child-protection cases. Ashley V. was another domestic-violence victim the center represented in 2011. Ashley was a student at a local community college when a domestic-violence incident against her led to a lengthy entanglement with the child-protection system.

After a long day at school, Ashley returned home and found that her boyfriend, Ken, who was twice her size, had been drinking. He was watching television while their then 17-month-old daughter, Alexis, played in a nearby room. When Ashley tried to change the channel, Ken cursed at her and slammed her body to the ground, causing her great pain and injuring her lower back. Alexis had wandered into the room, but fortunately was never injured herself. Ashley took the incident very seriously; she immediately ended the relationship, moved out of their shared apartment, and secured an order of protection against Ken the next day.

Despite taking these proactive steps, Ashley was soon notified by DCFS that she was to be indicated for child neglect, specifically for causing an "environment injurious to health and welfare" of Alexis. Because of the "indicated" report labeling her guilty of child neglect, Ashley became hesitant to follow through with her plans to enroll in a medical technician program at a local college. Ashley lost her first-level hearing on the merits of the indicated report. The administrative law judge found her equally responsible as Ken for the incident in which she was clearly the victim. Only after extended legal briefing in an administrative review action did the circuit court overturn the indicated finding against her and clear her from the child-abuse register.

While both Hannah and Ashley found help at the center and were able to clear their names from the state's list of child neglectors, thousands of mothers in Illinois and other states are not so fortunate. The center is a unique legal-services program that handles many indicated report appeals for indigent and low-income mothers. Most mothers involved in child-protection investigations are not able to access legal resources like those the center provides.

Mothers with Mental Illness
Parents with any mental illness are at an increased risk of intervention by the child welfare system compared to parents without mental illness, but mothers are more vulnerable than fathers to child welfare intervention on the basis of a mental-health-related allegation. The National Alliance on Mental Illness reports that women experience depression at a rate double that of men. Because of the prevalence of depression, studies have discovered that, in terms of sheer numbers, more women lose custody of their children because of depression compared with any other mental illness. See, L. Hollingsworth, "Child Custody Loss Among Women With Persistent Severe Mental Illness," Social Work Research (National Association of Social Workers, December 2004). Additionally, there is a demonstrated link between pregnancy and mental health, with more than 10 percent of women experiencing depression during pregnancy and approximately 15 percent of women experiencing post-partum depression. Finally, children of parents with mental illness are most likely to live in mother-headed, single-parent households, and women with mental illness are more likely to be single parents, to experience poverty, and to be victims of abuse themselves. NAMI "Women and Depression Fact Sheet" (October 2009).

For all of these reasons, mothers with a mental-health diagnosis are particularly vulnerable to the biases, prejudices, and discrimination that pervade the child welfare system when it comes to issues of mental health.

Though many states, including Illinois, require evidence of specific behavior that placed a child at real and significant danger, child-protection investigators often ignore this evidentiary requirement. Investigators frequently conclude that a mother is guilty of neglect without collecting any evidence of wrongdoing other than a diagnosis. In these instances, child risk is automatically assumed for children of mothers with unusual behavior or diagnosed mental illness, and some states explicitly permit child welfare officials to take action based solely on the existence of a psychiatric diagnosis. Some mothers are even found guilty of neglect when a diagnosis is lacking.

Indeed, mothers' reasonable responses to stressful situations are misinterpreted as symptomatic of a dangerous mental illness and can lead to calls to the child-protective services hotline. For example, the day after the birth of her son by caesarean section, hospital nurses interrupted the center's client Pamela by surprise while she was undressed. Pamela asked the nurses to leave and tried to close the door to stop their entry. Unbeknownst to Pamela, there was a note in her hospital records claiming that she had an unclear psychiatric diagnosis, and after this incident, the hospital called child protection based on a misinterpretation of Pamela's actions. Though the hospital was unable to provide clarity as to the origination of this alleged diagnosis, the child-protection agency forced Pamela and her infant son to live separately for an extended period of time and then "indicated" an allegation of neglect against Pamela, claiming she had created an "environment injurious" for her child. In Illinois, this is the same overly broad allegation that is used to "indicate" findings against victims of domestic violence.

Accusing mothers of neglect based solely on a mental illness is both unfair and counterproductive to the goal of encouraging mothers to seek mental-health services. Many mothers are apprehensive about speaking candidly with a mental-health provider for fear of a call to the child protection hotline. As it turns out, this fear is often well-placed. Family Defense Center client Angela reached out to a mental-health provider for help when she began having feelings of being overwhelmed following the birth of her son. Even though Angela never behaved in a way that placed her son at risk, protective custody was taken based solely on her diagnoses of bipolar disorder and post-partum depression and the self-reported thoughts and feelings that she disclosed during a conversation in which she was trying to obtain help.

Nonoffending Mothers in Relationships with "Risky" or Accused Partners
The third, and largest, category of Mother's Defense Project cases (37 of 87 cases in 2011) involves mothers who are brought into a child-protection case because of their relationship with an accused/offending and/or "risky" partner. Presumptions about the relationship between the mother and what the mother "must have known" about the father/husband/paramour's actions take the place of concrete evidence of wrongdoing or knowledge by the mother. Treating these mothers as guilty by association is legally suspect, however, in light of the constitutional right of these nonoffending mothers to direct the upbringing of their children absent proof of parental unfitness. See Stanley v. Illinois, 406 U.S. 645, 649 (1972). And case law in many states, including Illinois, prevents a presumption that one parent is guilty of neglect or should suffer an impairment of his or her custodial rights simply because another parent has abused or neglected a child. See, e.g., In re Arthur H., 212 Ill. 2d 441, 819 N.E. 2d 734 (2004). Recent Family Defense Center cases nevertheless demonstrate how the child-protection system presumes guilt through association in cases involving mothers.

The center represented Ignacia in the fall of 2011, after she had struggled to find legal representation for several months. Child-protection authorities received a call in April 2011 claiming that Ignacia's husband had sexually abused her daughter four years earlier. The abuse consistently occurred while Ignacia was at work, and Ignacia learned of the abuse after the Department of Children and Family Services (DCFS) did. When Ignacia did learn of the abuse, she immediately sought an order of protection barring her husband from having contact with her children, filed a criminal complaint against him, and assisted in the ensuing criminal investigation to such an extent that she was awarded a U visa for her cooperation. Ignacia's husband eventually fled the country, and DCFS indicated him for abuse. But DCFS also indicated Ignacia, even though it had no evidence that she had knowledge of the abuse any time before the hotline call. Betraying an implicit gender bias, DCFS concluded, without evidence, that, as the victim's mother, it was "implausible" that Ignacia did not know about the abuse. This presumed implausibility of a mother not knowing of abuse is prevalent in the child welfare system, and, indeed, it has been asserted as a reason to relax protections of mothers' rights to consent to interrogations of their children. See Brief of Bob Camreta before the U.S. Supreme Court in Camreta v. Greene.

Fortunately, the center helped Ignacia successfully challenge the indicated finding, but only after an administrative hearing at which Ignacia's daughter was forced to testify about the intimate and painful details of her abuse and her mother's lack of forewarning. The decision to indicate Ignacia perpetuated the trauma Ignacia's family suffered throughout the ordeal.

Physical abuse cases against fathers are also commonly coupled with neglect claims against mothers whose sole "offense" is to be married to or living with the father at the time of the alleged abuse. Sally C.'s case dramatically illustrates the system's use of "guilt by relationship." Sally's five-month-old infant son, Kenny, died in an incident in which he was thought to have been shaken by his father. All parties knew that Sally had been at work at Brooks Brothers at the time. Nevertheless, Sally's other son was removed from her care, and a juvenile court action was instituted against both Sally and the father. At no time was Sally suspected of causing the injuries leading to her younger son's death, but her guilt by association was sufficient to cause her to temporarily lose custody of her surviving child. Eventually, the father was effectively exonerated after an autopsy showed the infant had suffered a heart attack, most likely from congenital causes. Sally's efforts to secure redress from the removal of her surviving son from her care were ultimately unsuccessful. Cornejo v. Bell, 592 F.3d 121 (2nd Cir. 2010). (The center wrote a friend of the court brief supporting Sally's claims that her constitutional rights were violated in this case, but the Second Circuit determined that the investigators were entitled to qualified immunity from her suit.)

In all of the Mothers' Defense Project cases the center handles, presumptions and stereotypes that are highly gender-based negatively impact mothers. Extricating mothers who are victims of domestic violence, who have mental health diagnoses, or who are presumed to be at fault simply through "guilt by relationship" to a suspected partner can be challenging, requiring extended legal proceedings even when the child-protection authorities lack evidence of any specific wrongdoing by the mother. Changing rules, policies, practices, and attitudes, including recognizing the constitutional principles that each parent is entitled to a presumption of fitness that cannot be overcome by a stereotype alone, would go a long way to prevent the harm so many mothers face at the hands of child-protection authorities.

Keywords: litigation, children's rights, gender-plus bias, child welfare, Family Defense Center, Mother's Defense Project

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Diane L. Redleaf, Melissa L. Staas, and Jonathon N. Fazzola – March 29, 2012