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McOSCAR: PA Should Change Child Protection Laws

Colorado and other states are taking a second look at the disparate impact mandatory reporting laws meant to protect at-risk children may have on minority and lower-income families. Perhaps Pennsylvania should also look at changing its child protection laws.

Pennsylvania’s Child Protective Services Law (CPSL) is a textbook example of good intentions gone awry.

The CPSL is one of three Pennsylvania civil statutes that permits state intervention in cases of child abuse and neglect.  Its aim is to protect children from serious physical or mental injury, sexual abuse or sexual exploitation, and serious physical neglect.

Primarily a reporting statute, the CPSL was enacted to encourage more complete reporting of child abuse, to provide swift delivery of protective services to prevent further abuse and to stabilize families.

A report of suspected child abuse to Pennsylvania’s Department of Public Welfare’s ChildLine triggers an investigation by the county protective agency (in Chester County, the Department of Children, Youth and Families).

So, mission accomplished, right? Well… not quite.

In theory, the CPSL achieves its purpose.  In practice, it overreaches in two important respects. First, it mandates that a broad array of professionals, including school and medical personnel, therapists, coaches, clergy, and others who, in the course of employment, occupation, or practice come into contact with children, report suspected child abuse to authorities.  Failure to do so is a crime.  Second, it confers protective agencies with quasi-police and -judicial powers to investigate those reports.  Together, these provisions prove the adage that two wrongs don’t make a right.

Mandating reporting raises several concerns.  First, it compels teachers and others to become agents of the state.  Next, the threat of criminal prosecution effectively ensures a constant flow of reports to be investigated as mandated reporters (justifiably) cover their butts by reporting every bruise, scratch, and accusation to ChildLine.  Finally, this unsolicited responsibility injects an element of suspicion and duplicity into the relationship between (generally, lower income and/or minority) parents and those in loco parentis. Worse, children have been known to call ChildLine with spurious accusations about their parents.

The “investigations” that follow are woefully inadequate to protect the innocent. They end in one of three ways: a “Founded” report in which there has been any judicial adjudication that a child has been abused, including the entry of a plea of guilty or a finding of guilt to criminal child abuse;  an “ Indicated” report in which child protective investigators determine that there is “ substantial evidence of child abuse, “ or “Unfounded,” all other reports.

The negative effects of “Founded” and “Indicated” abuse are virtually identical.  The perpetrator (again, the majority are lower income and/or minority) is listed on the Statewide Central Register of child abusers and barred from many activities and occupations.  Often, the child is removed from their home.

An investigation that results in “Indicated” abuse is the polar opposite of “Founded” abuse. With the latter, the suspect, at a minimum, has a right to counsel and a hearing.

An Indicated parent is not as lucky.

Astonishingly, the CPSL offers no judicial review of an Indicated finding. The county social worker/investigator is judge, jury, and prosecutor. Proponents of the Act will counter that the accused can appeal the finding, but few unsophisticated parents, most without counsel, are conversant with the law.

Untrained in the law and acting without judicial restraint, review or oversight, caseworkers render judgments affecting families, which demand the utmost in fair play, due process, and fundamental justice. The CPSL offers none of these safeguards.

Every parent should be alarmed at this frightening prospect because mandated reporting and child protective services investigations put every parent’s reputation, livelihood and parental rights in jeopardy.

The CPSL may be right about what is wrong, but in several respects is frightfully wrong about what is right.

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