Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 1
By Mark Hardin
In the late 1990s, Congress amended federal child protection laws to improve the safety, stability, and well-being of abused and neglected children. To ensure children's safety, federal law makes it more difficult for criminals convicted of certain crimes to care for children. To provide stability for children severely victimized by their parents, federal law allows states to more quickly arrange new permanent homes. The concept that families should be reunited at all costs has changed.
As a result, these amendments have important implications for criminal law practitioners. This article will explain relevant changes in federal law, discuss state implementation of the federal law, and point out some practice implications for attorneys handling criminal cases.
Here are two hypothetical examples of what can happen when an individual is accused of endangering or abusing a child:
Scenario One: loss of parental rights. In the first scenario, a prosecutor brings a felony assault case against a mother for excessive corporal punishment of her three-year-old daughter. The beating was so severe that the girl was hospitalized. The defendant, with no prior criminal arrests or convictions, offers through her attorney to plead guilty to misdemeanor assault.
The prosecutor consults with the lawyer representing the child protection agency. The agency's lawyer asks the prosecutor to reject the offer. Although the mother was never convicted, the child protection agency has learned she was reported for child abuse in two other states. The father, meanwhile, abandoned the children three years ago.
A felony conviction, the agency's lawyer explains, will make it easier to terminate parental rights and facilitate the adoption of the child and her two sisters by a new family. After hearing more details, the prosecutor declines the mother's plea bargain offer, believing there is a good chance of gaining a felony conviction. The agency attorney assures the prosecutor that the child protection agency will be able to protect the children, regardless of the outcome of the criminal case.
Scenario Two: loss of adoption opportunities. In the second scenario, a criminal defense attorney is discussing a plea bargain offer with a client charged with aggravated assault resulting in the injury of an adult neighbor. The prosecutor has offered to accept a guilty plea to the lowest degree of felony assault and to recommend a sentence of probation.
The client, however, mentions to his attorney that he and his wife want to adopt a five-year-old foster child who has lived with them since birth. The defense attorney explains that if the defendant accepts the plea offer, the adoption is out of the question and the child will most likely be placed in another permanent home. Based on the attorney's advice, the client instructs the attorney to reject the offer.
Scenario One reflects the results of the 1996 amendments to the Child Abuse Prevention and Treatment Act (CAPTA) and the enactment of the Adoption and Safe Families Act of 1997 (ASFA). (Pub. L. 104-235, amending 42 U.S.C. §§ 5101-5106h; Pub. L. 105-89, amending 42 U.S.C. §§ 620-631, 670-679a.)
These laws provide that felony convictions for certain crimes can lead to the loss of all parental rights. Specifically, when a parent is convicted of certain serious crimes against a child it can result in termination of parental rights to the abused child, the child's siblings, and any future children. Termination of parental rights legally frees a child to be adopted.
Scenario Two is based on ASFA, which provides that a defendant convicted of such crimes will be unable to be a foster or adoptive parent. (42 U.S.C. § 671(a)(20).)
Because of these potential collateral consequences of convictions of crimes against children, an attorney handling a criminal case should:
o advise clients as to how a conviction for certain crimes can affect parental rights and the right to care for and/or work with other children;
o consider adjusting litigation and negotiation strategies in both criminal and child protection cases; and
o coordinate litigation strategy with the attorney handling the related child protection or custody case.
Changes in federal law: CAPTA
The Child Abuse Prevention and Treatment Act (CAPTA) provides federal grants to states for the prevention of child abuse and neglect as well as reporting, investigation, and intervention in such cases. In exchange for accepting such grants, states must adopt a plan showing they conform to certain CAPTA requirements. In 1996, CAPTA amendments provided that states accepting the grants must include, as grounds for termination of parental rights, conviction of certain felonies. The felonies include:
o murder of another child of such parent;
o voluntary manslaughter of another child of such parent;
o aiding or abetting, attempting, conspiring, or soliciting to commit such murder or voluntary manslaughter; or
o felony assault that results in serious bodily injury to the surviving child or another of such parent.
(42 U.S.C. §§ 5106a(b)(2)(A)(xii), (xiii).)
All but a few states accept CAPTA funds.
Termination of parental rights means, among other things, a loss of all parental rights to visitation and communications with the child. Termination also allows the child to be adopted without parental consent.
When parents are convicted of the specified crimes, courts may terminate parental rights if the petitioner also can show that termination is in the children's best interests. This considerably eases the burden on the petitioner. States have limited discretion not to seek termination in such cases.
In addition, CAPTA provides that states may not require reunification of a child with a parent who has committed the same felonies. (42 U.S.C. § 5106a(b)(2)(A)(xii).)
Serious bodily injury is defined to include, "bodily injury with substantial risk of death, extreme physical pain, protracted obvious disfigurement, or protracted loss or impairment of a bodily member, organ, or mental faculty." (42 U.S.C. § 5106a(b)(4)(B).)
Changes in federal law: ASFA 1997
The Adoption and Safe Families Act of 1997 (ASFA) authorizes, among other things, federal foster care matching funds to help pay for the cost of keeping children in foster care and for state administration of foster care programs. In exchange for these funds, all states are bound by ASFA requirements, and all have made statutory amendments to comply with it.
ASFA complements and adds more teeth to the CAPTA provisions. It lists the same crimes as those set forth in CAPTA, but augments CAPTA in several ways.
First, if a parent of a child in foster care has been convicted of a crime listed under CAPTA, child protection services must file for termination of parental rights (or join in a termination of parental rights petition with other parties) within 60 days after a parent's felony conviction. (42 U.S.C. § 675(5)(E); 45 C.F.R. § 1356.21(i)(iii).) There are exceptions. For example, a termination petition is not required if there are "compelling reasons" why such a petition would not be in the child's best interests.
Second, when a family or juvenile court finds that a parent has been convicted of such a crime, the state need not provide "reasonable efforts" to prevent the child's placement into foster care and to reunify the parent and child after placement. (42 U.S.C. § 671(a)(15)(D).) Previously, it was the norm to provide services to rehabilitate the family, even when parents were imprisoned for serious crimes against a child.
Following the juvenile or family court finding, the court has 30 days to hold a "permanency hearing" in which it may direct the agency to seek termination of parental rights. (42 U.S.C. § 671(a)(15)(E)(i).) The permanency hearing is designed to move the child more quickly into a legally secure permanent placement. Thus, even if the agency doesn't take the initiative to file for termination of parental rights, the court may direct it to do so.
To summarize, while the parent won't necessarily lose parental rights after conviction of one of the listed crimes, there is a considerable risk. And conviction risks the loss of parental rights to future children. This is true because the above list of felonies includes crimes against a child's siblings. Thus, if a sibling is later abused or neglected and placed in foster care, the agency and court must consider initiating proceedings for termination of parental rights to that child.
Although the legal grounds for termination to future children exists, most state courts will not terminate rights to an abused child's younger siblings unless the courts feel it's in the best interests of those children. And termination may not be in the best interest of a child born many years later when a parent is more mature or has successfully undergone treatment.
Another important ASFA provision concerns "aggravated circumstances." Each state must enact legislation specifying additional circumstances where the state need not make "reasonable efforts" to prevent placement and reunify the family. Although ASFA suggests that these circumstances include "abandonment, torture, sexual abuse, and chronic abuse" of a child, each state may decide which additional circumstances to enact into state law. This means, among other things, that states can expand the list of crimes enabling the state to forgo services to rehabilitate the family.
A finding that reasonable efforts are not required both reduces the chances that the child will be returned home and increases the likelihood and speed of termination of parental rights. As mentioned above, such a finding also triggers a permanency hearing within 30 days. The permanency hearing may trigger termination of parental rights proceedings.
Another provision of ASFA-illustrated by Scenario Two-is that conviction of certain crimes bars an individual from becoming a foster parent or adopting a child. States must check the criminal records of prospective foster and adoptive parents. If such checks reveal convictions for the specified crimes, foster children may not be placed in their homes. (42 U.S.C. § 671(a)(20).)
The categories of crimes that can bar a person from becoming a foster or adoptive parent are far broader than those crimes listed above as grounds for termination of parental rights. Specifically, a person can never become a foster or adoptive parent if the individual has any felony convictions for child abuse or neglect, spousal abuse, a crime against children (including child pornography), or certain violent crimes. These include rape, sexual assault, or homicide, but not other kinds of physical assault or battery. However, individuals with felony convictions for all other kinds of physical assault, battery, or drug-related offense are barred from becoming foster parents for five years.
These restrictions do not apply to foster or adoptive parents whose children were in foster care before the ASFA was enacted in November 1997, but do apply to foster care placements or adoptions after ASFA, even when the prospective parent committed a crime before ASFA. (60 FED. REG. 4067, Jan. 25, 2000.)
States can opt out of all or part of these restrictions, including the requirements to check criminal records of prospective foster and adoptive parents and to bar persons convicted of certain crimes from becoming foster or adoptive parents. Even the slightest departure from the federal requirements demands action by the state legislature or governor.
Few states have chosen to opt out. If states do opt out, they must document in the licensing files of foster and adoptive parents that the state has taken effective steps to ensure the safety of children placed in these homes. (45 C.F.R. § 1356.30(e).)
Lawyers should be aware that even if their state has opted out of these federal requirements, the state might have substituted similar requirements of its own. For example, New York requires criminal record checks and generally prohibits individuals convicted of specified crimes from becoming foster or adoptive parents. But the state does allow those individuals convicted of the specified crimes to become foster or adoptive parents if they demonstrate that they pose no danger to the child and that placing the child with them is in the child's best interest. Interestingly, New York exceeds federal requirements in that it requires criminal record screening not only for prospective foster and adoptive parents, but also for all other adults living in the household. (N.Y. Social Services Law 378-a.)
Finally, ASFA imposes certain time limits on the decision-making process in foster care placements. Within 12 months of when a child is "considered to have entered foster care," there must be a permanency hearing. During the permanency hearing, the court must consider, among other things, whether to return the child to his or her natural home or to direct the agency to file a petition for the termination of parental rights. (A child is considered to have entered foster care 60 days after the child's actual entry into foster care or the date a court found the child to have been abused or neglected, whichever comes first. (42 U.S.C. §§ 675(5)(C), (F).)
In addition, with certain exceptions, the agency must file a petition for the termination of parental rights once a child has spent 15 of the last 22 months in foster care. (42 U.S.C. § 675(5)(E), (F).)
The 12- and 15-month deadlines make it essential that the biological parent of a child who has been placed in foster care begin improvement efforts without delay. If the non-criminal child abuse or neglect proceedings are delayed while the criminal case is pending, the parent may effectively lose the opportunity to improve.
In establishing statutory criteria of "aggravated circumstances," many states have expanded their list of crimes for which reasonable efforts to preserve the family are not required. They include offenses against any child in the person's household or even offenses against any child. They may include misdemeanor crimes against children. Some states have included crimes against adults, such as murder of the child's other parent.
Some states even include criminal acts without convictions on their lists of aggravated circumstances. These states require only that the court hearing the child abuse or neglect case find that the criminal act has taken place. Thus, a family or juvenile court may, in effect, determine that the parent has committed the crime while the criminal charges are still pending.
Terminating rights. In some states, legislatures not only broadened the list of crimes in which reasonable efforts to reunify the family are not required, but also broadened the list of crimes that are independent grounds for the termination of parental rights. In some states, the crime-based grounds for termination are broader than the circumstances in which reasonable efforts to preserve the family is not required.
Criminal background checks. ASFA requires criminal record checks of prospective foster and adoptive parents and bar those convicted of certain crimes from becoming foster or adoptive parents. A different federal law creates a federal registry of "child abuse crimes" and permits federal criminal records checks of prospective providers of care for children. (42 U.S.C. §§ 5119-5119(a).)
Individuals who come under this law include owners, volunteers, and employees of organizations, agencies, and companies working with children. One consequence of appearing on this registry can be the loss of prospective employment in jobs involving children. Another is the loss of volunteer opportunities.
Child abuse crimes are broadly defined to include crimes involving physical or mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child. Any person can commit these crimes, which include misdemeanors as well as felonies.
Central registries are repositories (usually computerized databases) with information from prior reports of abuse and neglect reports within a state. State child protection agencies, not criminal justice agencies, manage central registries. Every state has a central registry.
States use central registries to check for prior reports of abuse or neglect regarding specific adult offenders and child victims. States may use this information to decide whether to approve an individual as an adoptive or foster parent. Also, states often use central registry information to decide how to follow up a subsequent report or abuse or neglect.
In some states, central registry information can affect future employment and volunteer work. Typically, information from the central registry may be shared with employers offering jobs involving contact with children and organizations offering volunteer work with children.
Both criminal and non-criminal forms of child abuse and neglect appear on the registry. If an adult parent or caretaker has committed a crime against a child and if the crime is child neglect or abuse, then information about the crime should appear on the registry.
Even without a criminal conviction, information can be entered into the registry. A report may be kept in the registry if there are administrative findings to the effect that a person "probably" abused or neglected a child. In most states, a person who is the subject of such administrative findings (often called a "substantiated" report) may have an administrative hearing to challenge the findings.
Practice recommendations and implications
The following are recommendations to attorneys handling criminal cases.
Defense: Counsel should know (or at least check) relevant state child protection laws. When defending a parent for an alleged crime against a child, check, at minimum, state grounds for termination of parental rights, and circumstances in which reasonable efforts at reunification are not required. Also, consider checking state laws and regulations concerning licensure for foster and adoptive parents.
Be aware of parallel proceedings involving allegations of child maltreatment. There may be parallel court proceedings in which the alleged crime is at issue. Parallel proceedings may involve:
(a) administrative proceedings to challenge an administrative finding of child abuse and to remove the finding from the state's central registry of child abuse and neglect;
(b) family court proceedings to subject the parent to state supervision, place the child in foster care, permanently remove custody or guardianship, or termination of parental rights;
(c) private child custody or guardianship proceedings;
(d) adoption proceedings; and
(e) domestic violence proceedings focusing on violence toward or abuse of the child.
Keep in mind that parallel proceedings may involve issues that are more important to some parents than the criminal case itself-their future rights to their children. Also keep in mind that the parallel proceedings may produce evidence either helpful or harmful to defense of the case.
Advise your clients of the potential child protection implications of plea bargains. As explained in Scenario One, a plea bargain may help protect your client against future loss of parental rights by avoiding a conviction that would be grounds for termination. It may also affect whether a child protection agency can refuse to provide services to preserve or reunify the family.
On the other hand, some plea bargains will result in conviction of a crime that is still grounds for either termination of parental rights or not requiring the state to make a reasonable effort to reunite the family. Whether conviction of a specific crime will have these effects vary according to state statutes. Finally, even if conviction won't lead to a loss of parental rights, it might bar your client from future foster care, adoption, or work with children.
Defense lawyers should also counsel clients to consider whether admissions in civil proceedings will affect criminal proceedings. Generally, when a parent admits abuse or neglect in a civil case, the admission may be used against the parent in a criminal proceeding. In some states, however, admissions or testimony in child protection proceedings can be made confidential and, therefore, inadmissible in criminal cases. It may be appropriate to request immunity from the use of such admissions or testimony in later criminal proceedings.
Rethink the timing of parallel civil and criminal cases. Delaying a child protection case while a parallel criminal case is pending may or may not serve the interests of a parent. On the plus side, it may avoid the parent having to testify while the criminal case is pending. Further, delaying the child protection case may provide the parent with an opportunity to accept services voluntarily or otherwise to try to improve while both cases are pending. If the parent can demonstrably improve while the criminal case is pending, it may help avoid the termination of parental rights.
On the minus side, the state may refuse to provide certain services unless the parent admits the abuse or neglect. In addition, the agency and court may be more reluctant to permit visitation. If the parent is separated from the child during the delay and cannot visit, the parent-child relationship may begin to unravel. This will depend, in part, on the age of the child.
In states where the passage of time in itself provides a ground for termination of parental rights, delaying the adjudication of the child protection case can be particularly risky. In other states, if the non-criminal trial for abuse or neglect is delayed, services to the family may be delayed. Because of the resulting weakening of the parent-child relationship, this may make family reunification increasingly difficult and unlikely.
Prosecutors: Set up a system for exchanging information with the attorney handling the child protection case. It is essential to coordinate with the agency attorney when there are parallel criminal prosecutions and child protection proceedings. Coordination ensures consistent court orders requiring the defendant to limit contact with the child or other parent or to participate in services. Court orders and terms of probation and parole in criminal cases should reinforce court orders in child protection cases and vice versa.
Exchanging information also avoids conflicting litigation strategies. For example, each attorney can try to avoid eliciting testimony that could harm the related case.
The child protection agency and its attorney should have access to criminal record databases. The agency or its attorney should routinely check the databases to find out the criminal records of parents who have abused their children. They should also check the criminal records of other adults with unsupervised access to the child.
Without checking criminal records, it is not possible to successfully implement federal child protection law. For example, without access to criminal records, the child protection agency cannot consistently find out whether parents have been convicted of the crimes that are grounds for termination of parental rights or grounds for not requiring reasonable efforts to reunify the family.
Perhaps more importantly, when a child protection agency doesn't know about a parent's criminal convictions, the child's safety may be endangered. Lacking this information, the child protection agency may not know that the parent currently is involved with the criminal justice system, and the two systems may be working at cross-purposes.
Try to agree on litigation goals with the child protection attorney. The criminal prosecutor and attorney representing the agency nearly always should have complementary case goals. For example, each should share the goal of protecting the child. The criminal prosecutor should be able to rely on the child protection agency to protect the child after the defendant is released from incarceration and other criminal sanctions. The child protection agency should be able to rely on the criminal prosecutor to prosecute serious cases and to help enforce orders to protect the child, such as stay away orders.
Case goals should especially be consistent where serious crimes are concerned. In most cases, the agency lawyer should not be working on a plan to reunite the defendant with the child when the prosecutor is trying to incarcerate the parent for many years. Instead, both attorneys and the agency should reach a consensus on the desirable ultimate outcome of the case.
Plea bargains of criminal cases should take into account the need for protection of the child. For example, prosecutors should consider whether a plea bargain would make it easier or harder to place a child in a new permanent home. The prosecutor should consider whether a conviction would help protect future children of the parent. Probation and parole boards should consider the implications of terms of probation and parole on the future protection of the perpetrator's children.
The prosecutor, in consultation with the agency attorney, might even include voluntary termination of parental rights as a part of an overall plea bargain. This, of course, would put some parents in an excruciating position-deciding between prison and losing future contacts with their children.
Rethink the timing of parallel civil and criminal cases. In cases where there will be services to rehabilitate the family, it is important not to delay the child protection case while the criminal case is pending. Delays in adjudication of the child protection case often delay services and delay the ultimate permanent placement of the child. (See generally, Sprague and Hardin, Coordination of Juvenile and Criminal Court Child Abuse and Neglect Proceedings, 35 U. LOUISVILLE J. FAM. L. 239, 281-300 (1996).)
On the other hand, if the criminal proceeding is likely to be particularly speedy and if a termination of parental rights case is planned, it may make sense to complete the criminal prosecution first. If the criminal proceeding is completed first, the termination proceeding cannot be used for defense discovery and a child may not have to testify extra times.
Is it realistic to expect criminal practitioners handling cases involving crimes against children to learn the potential civil consequences of criminal convictions for such crimes? Is it realistic to expect criminal practitioners to coordinate efforts with attorneys involved in parallel child protection or custody proceedings? It's difficult to say. But a lack of such understanding and cooperation can have devastating consequences for both parents and children.
Mark Hardin is director of child welfare with the American Bar Association's Center on Children and the Law in Washington, D.C.