July 09, 2012 Articles

Protecting Mothers Against Gender-Plus Bias: Part 3

By Diane L. Redleaf and Melissa L. Staas

In Part 1 of this three-part series, we introduced the Family Defense Center's Mothers' Defense Education and Advocacy Project, explaining that many mothers in the child-protection system appear to be the victims of "gender-plus" bias. They are targeted not solely because they are mothers, but because they also happen to be members of another highly gendered category that takes the place of actual evidence of specific wrongdoing by the mother toward her child. In Part 2 of this series, we presented three of the categories of Mothers' Defense Project cases: domestic-violence victims, mothers with mental-health conditions, and nonoffending mothers in relationships with "risky" partners.

The two remaining categories of gender-plus discrimination that the Mothers' Defense Project addresses are mothers in extreme poverty (16 of the 87 cases the Mothers' Defense Project handled in 2011 fell into this category) and teen mothers, a category added in fall of 2011 with seven cases handled during the year. The Mothers' Defense Project has adopted a cross-cutting legal strategy to reduce gender-plus discrimination and narrow the grounds for intervention against mothers who have not harmed their children.

Mothers in Extreme Poverty
Sometimes, mothers' poverty and living circumstances alone are reason enough to bring child-protective services into their family life. Mothers raise children by themselves much more often than do fathers; single female heads of household also often have inadequate or no child support and inadequate housing. For these reasons, there is a "feminization of poverty," and poverty itself can operate as a gender-plus discrimination factor in the child-welfare system. For mothers in extreme poverty, any crack in their personal safety net can lead to a hotline call. In a number of the Family Defense Center's cases, mothers have done nothing wrong except lack financial means to provide a middle-class level of care.

It is well-established that mothers who are living in extreme poverty are at risk of child-protection intervention at significantly higher rates than the average parent. See Kristen Shook Slack et al., "Risk and Protective Factors for Child Neglect During Early Childhood: A Cross-Study Comparison," 33 Child and Youth Services Review 1354, 1358 (2011). Mothers in extreme poverty find that their living circumstances and child-care arrangements are often brought to the attention of authorities, including mandated child-abuse reporters, much more frequently than the arrangements of middle-class families. See, e.g., J.A. Schumacher et al., "Risk Factors for Child Neglect," 6 Aggression and Violent Behavior 231–54 (2001) (finding 18 times the rate of child neglect incident reports for the highest poverty level communities compared with the communities with the lowest incidents of poverty). The Mother's Defense Project cases demonstrate that some cases of mothers in extreme poverty are not due to actual neglect, but rather due to unfair presumptions that have been applied to poor mothers that penalize them for their poverty alone.

"Cindy's" currently pending case is a case in point. Cindy attends a junior college and receives a child-care subsidy to attend school. When the state of Illinois delayed payment of her subsidy and her caregiver was forced to quit as a result, Cindy, like other classmates who were also single parents, brought her children to school with her, instructing them to wait in the hallway outside the classroom for her. They did as they were told, but her 11-year-old son grew restless. He asked her for keys to get a book from their car while he waited. He went to the car with his younger brother, and campus police saw him trying to enter the car. The police escorted the two children back to find Cindy in her class. She was then arrested and charged with child endangerment, and the campus police made a hotline call to the Department of Children and Family Services (DCFS) against her. While criminal charges against Cindy were eventually dropped, the hotline call was indicated for inadequate supervision after a cursory investigation that did not consider the reasons why Cindy did not have child care that day. Cindy is currently registered as guilty of child neglect in the Illinois Child Abuse Register while she appeals that finding. The child-neglect finding, if maintained, will prevent Cindy from pursuing her career goal of becoming a registered nurse.

In a second case, "Angela" was homeless and living in a shelter. A worker there accused Angela of leaving her baby unattended after Angela had asked shelter staff to watch the baby while she went to the restroom. The worker called DCFS to report Angela for inadequate supervision, but, during the investigation, her account of what Angela had done wrong changed three times. DCFS indicated Angela for child neglect anyway, and her appeal is now pending. Angela's dream of working with children with disabilities, however, is now put on hold due to the neglect label she acquired simply because she was too poor to afford housing and came under the scrutiny of a shelter worker.

When the reason for the intervention is a breakdown in social services or public benefits to which they are entitled, mothers like Cindy and Angela who come to the attention of child-protective services are effectively being blamed for the inadequacies of the very social-services system that is investigating them. Instead of addressing truly problematic parenting practices that actually endanger children, which is the core function of the child-protection system, the system pathologizes social conditions and turns them against society's most vulnerable victims. For mothers who are trying to better themselves through educational and/or social-service programs, as in both of the mothers' cases cited here, the child-protection intervention can have the tragic consequence of trapping a family in poverty instead of helping to free them.

Teen Mothers
In late 2011, the Mothers' Defense Center added teen mothers to its list of case categories after observing that the treatment of teen mothers appeared harsher than the treatment of older mothers and also more severe than the treatment of teenage fathers, even if the alleged offending behavior was similar. Additionally, as the recent case of "Nadine B." demonstrates, teen mothers are often the victims of many overlapping gendered categories, including being victims of domestic violence and extreme poverty, that, taken together, substitute for evidence of any wrongdoing toward their children.

Research establishes that teenage mothers are roughly twice as likely to have a child placed in foster care compared to mothers who become parents after the age of 20. See Teen Pregnancy and Child Welfare, National Campaign to Prevent Teen Pregnancy (Aug. 2010); Robert M. Goerge, Allen Harden & Bong Joo Lee, "Consequences of Teen Childbearing for Child Abuse, Neglect, and Foster Care Placement" in Kids Having Kids (Saul D. Hoffman & Rebecca A. Maynard ed., 2d ed., 1997). The reasons for this starkly higher rate of child removal for teen mothers are myriad and complex. Compared to parents who delay childbearing until later in life, teenage mothers are more likely to live in a poor or low-income household, more likely to be unmarried, and more likely to be former state wards themselves, all of which are risk factors for having a child removed from the home. American Academy of Pediatrics Committee on Adolescence, "Adolescent Pregnancy—Current Trends and Issues: 1998," 103 Pediatrics 2 (Feb. 1999); see also Teen Pregnancy and Child Welfare, supra.

In addition to these social factors that place teen moms in a position especially vulnerable to state intervention, stereotypes and prejudice against teen mothers pervade the approach of child-protection caseworkers to the point that merely being a teen mother, regardless of the mother's individual strengths and weaknesses as a parent, creates a negative bias. In many of these cases, the investigators and caseworkers presume that the mother is not capable of making sound decisions for her child. If the teen mother's child experiences some sort of accidental injury, child-protection caseworkers may presume that the mother acted in a blameworthy manner. See Slater v. DCFS, 953 N.E.2d 44 (Ill. App. Ct. 1st Dist. 2011) (see infra). Of course, some teens do lack the maturity that full-time parenting demands, and many teenage mothers may benefit from stronger systemic supports and safety nets. See, e.g., Hill v. Erickson, 88 CO 296, Consent Decree, Ill. Cir. Ct. of Cook Cty (Jan. 3, 1994) (class-action lawsuit that secured legal protections and services for state wards who are pregnant or parenting) (on file with the Family Defense Center). However, any per se inference of neglectful parenting based solely on an admitted need for services is inappropriate and unfair.

Nadine B. is a young mother who had a strong need for additional extra support systems. Not only was she just 15 years old when she had her baby, but also she had previously been a ward of the state due to allegations of abuse by her parents. Nadine lacked stable housing, and she was also experiencing domestic violence perpetrated by her baby's father. These factors led to an unfair assumption by state agencies that Nadine was fundamentally incapable of parenting her son. Following a false claim that Nadine had permitted her father to be alone with her infant son for a short period of time, DCFS caseworkers strong-armed Nadine into acquiescing to an involuntary separation from her son and placed her son with a relative of her son's father without Nadine's authorization. When Nadine first sought the Family Defense Center's legal services, her son had been with this distant relative for months, despite Nadine's objections, without any court approval for the agency's placement. One reason for this long separation was Nadine's lack of awareness as to her own rights and the agency's refusal to recognize her rights, which in part was due to Nadine's inability to advocate for herself. This knowledge gap and lack of self-confidence is another commonality among cases involving teen mothers—often, young mothers will have greater difficulty asserting their rights in the face of state authority, even when they have done nothing wrong in caring for their children.

Legal Strategies to Reduce Gender-Plus Discrimination
The Mothers' Defense Project uses specific advocacy tools to address each form of gender-plus discrimination, insofar as each case category presents a unique set of legal issues. The project has recently had success, however, with advocacy that cuts across categories.

Domestic-violence victims can make use of Fourteenth Amendment claims developed in Nicholson v. Scoppetta, a class-action challenge to the policies and practices of the New York City child-welfare agency of removing children from their domestic-violence victim mothers solely because the mothers had "allowed" themselves to be abused. 116 Fed. App'x 313 (2d Cir. 2004); see also http://www.familydefensecenter.net/images/stories/fdcfall07-final.pdf [PDF] (page 6).

In 1989, homeless and other impoverished families in Illinois sued DCFS for failure to provide subsistence support to prevent the removal of children and to reunite families. As a result of the consent decree that was entered in that federal court litigation, Norman v. Johnson, families may now receive targeted housing and cash assistance when environmental neglect issues are being investigated. 930 F. Supp. 1219 (N.D. Ill. 1996) sub nom. Norman v. McDonald (enforcement action regarding monitoring of the 1991 Norman consent decree).

Mothers with mental illness may have protections under federal laws prohibiting discrimination on the basis of actual or perceived mental illness. See 42 U.S.C. § 12102 (Americans with Disabilities Act) (defining disability to include impairment or "being regarded as having such an impairment"); see also 28 C.F.R. § Pt. 25, App. B, 35.104 (explaining that the determination that an individual poses a risk to the health or safety of others "may not be based on generalizations or stereotypes about the effects of a particular disability . . . [but] must be based on an individualized assessment" of whether the threat will actually occur); see also Bragdon v. Abbott, 524 U.S. 624 (1998) (the risk assessment [under the "direct threat" provision of the ADA] must be based on medical or other objective evidence. . . .").

Teen mothers may rely on commitments that Illinois DCFS made in Hill v. Erickson (supra), and may, with the assistance of legal and social-service advocacy, be able to access school-based support services and community resources to assist them with daycare and other needs.

Specific advocacy for social-services supports for mothers will have spillover benefits in reducing the intervention of child-protection services in cases like Cindy's, where a child-care snafu became the occasion for a child-protection hotline call.

Strategies that cut across all of the Mothers' Defense Project areas have even more potential, however, to change the gender biases of the system. The separate strategies listed above do not address a central problem in the Mothers' Defense Project cases: the breadth of the child-neglect laws themselves and their liberal allowance of discretionary judgments by child-protection investigators. The definition of neglect, which often includes things such as subjecting a child to an "injurious environment," is considered an "amorphous concept that cannot be defined with particularity." In re Arthur H., 212 Ill. 2d 441, 463 (2004) (quoting In re N.B., 191 Ill. 2d 338, 346 (2000)). See, e.g., S. D. Codified laws §§ 26-8A-2 (2010) (defining neglect as a child's "environment is injurious to his welfare"); Ohio Rev. Code Ann. § 2151.04 (child's "condition or environment . . . warrant the state in the interests of the child, in assuming his guardianship"). But it is precisely because child neglect is viewed as sui generis, amorphous, and potentially limitless that gender-plus discrimination has flourished, enabling courts to avoid careful analysis of the specific harm to a child that a specific parent has caused.

One potentially effective and cross-cutting strategy for eliminating gender-plus discrimination is to limit the definition of child neglect, both under juvenile-court acts and under abuse- and neglect-reporting acts, which may have slightly different definitions and somewhat different purposes. By narrowing the grounds of neglect to real deprivations of care by a parent whose actions directly caused or contributed to the child's condition, many of the categories of gender-plus discrimination would effectively disappear. For example, the status of having a mental health condition, such as depression, serves as a proxy for child neglect only if the definition of neglect does not require some specific harm to the child or actions by the parent. By requiring a showing of a specific action or specific failure to act that results in harm to a child, rather than amorphous "risk" of harm, large categories of stigma-based findings of neglect would be eliminated. Similarly, the status of being a victim of domestic violence would no longer suffice as a basis for a neglect registry if the definition of child neglect expressly excluded parents who did not themselves cause any injury to their child or other persons in the home.

Two successful appeals in Illinois, along with a successful effort to narrow DCFS-proposed legislation, have taken aim at exactly this issue: narrowing the definition of child neglect under the Illinois Abused and Neglected Child Reporting Act (ANCRA). The first of the two appellate cases that the Family Defense Center has pursued in an effort to narrow neglect grounds is Slater v. DCFS. In Slater, the Illinois Appellate Court addressed the case of a freak accident that happened to the child of the Family Defense Center's client, Asia, a teen mom whose case was handled by pro bono counsel at McDermott, Will & Emery. Because Asia had been doing a high-school art project when her toddler suddenly grabbed a colored pencil and fell on it, puncturing the skin on her neck, DCFS was immediately called, even though Asia and her mother sought very prompt medical care and consistently explained the split-second accident that Asia could not have prevented. On two levels of appeal, Asia lost her claims that doing an art project with pencils in the same room as her daughter did not amount to child neglect. In a precedent-setting opinion, however, the appellate court declared that the Illinois law defining neglect did not extend to an accident that was not foreseeable. An injury by itself was insufficient to label a parent a perpetrator of child neglect. The appellate court ruled that it was incumbent on DCFS and its administrative law judges to determine that the injury "was the result of Asia's neglectful conduct." Given that Asia was "generally attentive" to her daughter and had a history of being a good mother, merely having pencils in the same room as an infant was not "neglectful conduct." Therefore, the appellate court's reversal of the neglect findings against Asia has created a precedent requiring evidence of neglectful conduct rather than a stereotype or presumption.

In the more recent case of Julie Q. v. DCFS, 2011 Ill. App. LEXIS 1299 (Dec. 22, 2011), the Illinois Appellate Court went even further and held the entire category of "environment injurious" findings, under which a large percentage of our Mothers' Defense Project cases are indicated, to be void. Julie Q. was a recovering alcoholic whose ex-husband harassed her with DCFS calls, claiming she was drinking, even though an AA sponsor and a substance-abuse counselor, among others, denied it. Nonetheless, Julie's vindictive ex-husband was able to manipulate DCFS to make an indicated finding. Even though her nine-year-old daughter was unharmed, except by the aggressive custody battle itself, DCFS sustained an indicated finding against Julie at an administrative appeal, and a state circuit court upheld this decision in an administrative review action.

On further appeal to the Second District Appellate Court, argued by the Family Defense Center's pro bono attorney Michael Otto of Jenner & Block, the appellate court struck the "environment injurious" rule under which Julie Q. had been labeled neglectful as "void." The basis for the decision was simply that the Illinois legislature had explicitly removed the phrase "environment injurious" from the definition of neglect in the enabling statute (in other words, the Abused and Neglected Child Reporting Act) in 1980. Despite that legislative repeal, the child-protection agency later adopted an administrative rule defining "substantial risk due to an environment injurious" as a category of neglect subject to investigation and registry. Indeed, the category is currently used so prevalently that more than a third of the investigations in Illinois include this ground; more than 13,000 persons each year are indicated and registered as child neglectors under this category.

As this article was being written, briefing was underway before the Illinois Supreme Court in Julie Q., with the court having granted the child-welfare agency's petition for review. See 2012 Ill. LEXIS 605. Simultaneously, DCFS sought to introduce legislation to enable the rule that has operated without legislative authority since 1980. But domestic-violence advocates and mental-health advocates have joined forces with family advocates in the battle to narrow the grounds for state intervention by limiting the environment injurious ground. Clear limiting language in an amended bill has passed both houses of the Illinois General Assembly. Without the background of representing dozens of mothers in ill-conceived environment injurious cases, and without first prevailing in the appellate court in the Julie Q. case, it is very doubtful that the Family Defense Center could have stopped DCFS from securing new legislation that could have effectively overturned the Julie Q. decision.

It is hoped that these efforts will bear fruit. This combined appellate and legislative advocacy has the potential to reduce the number of investigations against all the mothers that the Family Defense Center currently represents. At the same time, however, efforts to increase child-abuse reporting are also underway in the wake of the Penn State scandal, creating increases in hotline calls without simultaneously increasing public understanding of how improperly conducted investigations can enforce gender biases. Accordingly, the child-protection system is likely to continue to severely impact mothers who have not abused or neglected their children.

It is for these reasons that the Family Defense Center considers public education and legal training integral tools in the Mothers' Defense Project's strategic toolbox, along with its legal and policy advocacy. Speaking in the community; aligning with organizations that work on behalf of domestic-violence victims, teen mothers, poor families, and parents and children with disabilities; and writing articles for the child-advocacy and legal community are all essential strategies to developing a consensus that our child-abuse laws and policies are being applied unfairly to mothers and are harming their children.

This consensus is starting to form. The Family Defense Center is cautiously optimistic that, by continuing to highlight the ways in which child-protection policies operate with gender-biased stereotypes in place of evidence, a fairer system will eventually take hold.

Keywords: litigation, children's rights, gender-plus bias, Family Defense Center, Mothers' Defense Project, legal community

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Diane L. Redleaf and Melissa L. Staas – July 9, 2012