Saturday, February 25, 2023

The need to exempt poverty and financial instability from neglect in child welfare statutes is greatest in rural states: Montana as a case study.

The federal Child Abuse Prevention and Treatment Act (“CAPTA”) defines abuse and neglect as an act, or omission, on the part of the caregiver which results in any of the following: death; serious physical or emotional harm; sexual abuse or exploitation; or which presents an imminent risk of serious harm. However, states have variations in their laws, especially when it comes to child welfare. As to neglect specifically:

· 27 states include a failure to educate a child per the legal standard as neglect.

· 12 states define medical neglect as failing to provide any special or mental health treatment for the child.

· 8 states include the withholding of medical treatment or nutrition of severely disabled children under that definition.

· 38 states include a failure to adequately supervise as neglect.

· Only 4 states do not include allowing children to do appropriate independent activities (such as walking to the bus stop alone) as neglect.

In 2020, the majority of child maltreatment cases (76%) and family separations due to entry into foster care (64%) were related to neglect. Unfortunately, families living in poverty are more likely to have CPS cases opened on them, specifically regarding neglect. The National Incidence Study of Child Abuse and Neglect found that, from 2004-2009, children coming from families of low economic status (“Low-SES”) experienced seven times higher rates of reports of neglect. Low-SES is defined as having an income below $15,000/yr, a parent whose highest level of education was below high school or having a family member receiving poverty-related assistance.

2019 data from the USDA showed that, for each racial and ethnic group, poverty rates were higher in rural areas than they were in urban areas. The differential, on average, was 4%. This inevitably means that rates of child neglect reports are higher in rural areas. The difference between rural and urban lives does not end there, however. Firstly, (counterintuitively) higher-income children in rural areas are substantially more likely to have substantiated reports than those in urban areas. Secondly, reports regarding older children are substantiated 35% of the time in rural areas and only 23% of the time in urban areas. Thirdly, children living in rural areas with parents who have experienced domestic violence or who have cognitive impairments are also more likely to have reports substantiated than their urban counterparts.

Poverty and neglect are not the same thing (for another post on the difference, look here), and some states have specified this in their child welfare laws. However, less than half of all U.S. states have noted this difference. The majority of states that have not articulated this distinction could be considered “rural.” These states are ignoring the fact that impoverished parents are oftentimes doing everything they can to ensure that their children have the basic necessities – while neglectful parents are not.

The conflation of the poverty and neglect leads to serious consequences for children. For instance, while 77% of children who received food assistance graduated high school by age 20, only 63% and 59% of their counterparts whose parents were investigated for neglect or abuse and neglect, respectively, did. Plus, children whose parents were investigated for neglect were three times more likely to end up in jail by age 20 than were those children who had received food stamps.

One of the rural states that has elected not to enumerate a difference between poverty and neglect is Montana. Montana has a poverty rate that is roughly average, 12.6% compared to the national average of 11.6%. The state is better than average regarding child neglect, the average nationally is 1 in 7, while in Montana, it is 15.4 in 1,000.

Montana’s definition of neglect includes: failing to provide basic necessities; failing to provide cleanliness and supervision; exposing (or allowing exposure of) the child to unreasonable risk; acts which cause malnutrition or failure to thrive. This same code section requires only knowledge, not intent, as it regards child maltreatment (which is inherently connected to allegations and substantiations of neglect).

It is easy to see how poverty could be confused with some of the definitions of neglect stated above, particularly the failure to provide basic necessities. Between the years 2016 and 2017, the monthly average number of individuals receiving Temporary Assistance for Needy Families (TANF) in Montana rose 30%, and the number for families grew by 25%. Meanwhile, in the same period, there was an 89% increase in substantiated child neglect and abuse allegations. It should be noted that TANF caseloads fell while poverty rose, so the number of families which should have received assistance, but who did not, is likely higher.

Considering the information above regarding the correlation between poverty and neglect, it seems likely that the changes in these Montana statistics are connected. So, what should be done? First, and most obviously, the legislature should work to amend the relevant statutes in order to differentiate between poverty and neglect. California has attempted to do something of the sort: while their child welfare statutes regarding neglect have similar definitions, such as failure to provide adequate clothing, food, or shelter, their criminal statutes regarding maltreatment and neglect require intent. This shifts the burden from the impoverished parent, because when poverty is the “cause” of the neglect, the parent is not “willfully” neglecting the child. Instead, what is happening is simply a matter of circumstance.

Second, considering that many rural areas are deserts when it comes to services and supports, the state should work to create more housing, monetary assistance, and childcare resources for the impoverished. Third, and finally, the state legislature should raise the minimum wage, as about 44% of all workers in the United States qualify as “low-wage” workers (those earning two-thirds or less of the average hourly rate for full-time year-round work). Despite common arguments, this raise in minimum wage will not affect inflation.

For more information on the history of CPS and its workings in rural places, as a supplement to this post, look here.


Laiba_Waqas said...

Thanks for this thoughtful post! I think touching on how poverty and neglect aren't the same thing is such a crucial difference to enumerate. I also think about how CPS is in effect a way of policing poor parents, while the state is very unequipped to actually deal with neglectful parents. It's also interesting to me to think about how privacy interacts with this, because often the family realm is thought to be private and away from others' eyes when in fact it really does take a community to ensure abuse doesn't happen and children get the care and love they deserve and so do parents.

Laiba_Waqas said...
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Taylor Singer said...

This is a very interesting and informative post. It made me curious as to what California’s specific definition of child neglect is, so I found it: CA Penal Code 270 defines child neglect as willfully depriving a minor of necessary food, clothing, shelter, or medical attention. Like you noted in your post, this definitely seems like a step up from the Montana statute, since the conduct must be willful, not merely knowingly. However, does this actually lead to a difference in how the laws are enforced between the two states? I found a report from 2021 that showed a clear correlation between substantiated cases of child abuse or neglect with poorer, more rural areas of California. So, unfortunately, while the statute seems to be worded better, there still seems to be problems in California with punishing poverty instead of neglect. I absolutely agree that raising the minimum wage drastically would have a huge effect on this issue. The report can be found here:

Christian Armstrong said...

This was fabulous and insightful! I think it is important for statutes to reflect this reality and for judges to take account the full circumstances of a family unit when determining family separation or rights termination. It is one thing to adjust state laws and another to adjust the standards of discretion that judges are entitled to when interpreting those laws. I think many judges are (1) not educated enough on these issues and (2) are often confused when applying these laws because most of the time, the state judges (at least in California) tend to come from civil law firms with almost no criminal law experience, let alone family law experience. So when faced with cases in child welfare, many struggle with the cases and often defer to CPS rather than balancing the parents' rights and circumstances with what their child(ren) needs.