Child Deprivation and Domestic Violence

1. Child Deprivation and Domestic Violence Vicky O. Kimbrell Kori Woodward Georgia Legal Services Program www.GLSP.org

2. “The battered mother has to worry that if she leaves, the abuser will take her children, and if she doesn’t, that the government will.” Jill Zuccardy, attorney in Nicholson v. Williams

3. Why doesn’t she just leave? • Her childhood •  Isolation • Beliefs about marriage and/or men • FEAR - #1 reason • Safety • Lack of money • Threats to children • Promises • Lack of enforcement • Frequency/Severity of abuse

4. STATE INTERVENTION IN FAMILY VIOLENCE CASES • “My three month old woke up in the middle of the night with an ear infection and temperature. My husband screamed, ‘Shut the baby up, I’m trying to sleep.’ I was trying to comfort her, but nothing worked. He got up, took her and whacked her. She had a black and blue rear end. Now what should I do? If I take her to the doctor, they’ll take her from me because I’m the mother and I allowed this. My husband told me. ‘No matter what you say, I’m going to tell them that you did it.’” Effective Intervention in Domestic Violence & Child Maltreatment Cases – National Council of Juvenile & Family Court Judges, p. 11.

5. What would you Do?What would be the Consequences? • Call police. • Call DFCS. • Go to doctor. • Call your family. • Call a friend. • Call a lawyer. • Call a shelter. • Leave.

6. The Child Endangerment Statute - Cruelty to Children • O.C.G.A. Sec. 16-5-70 • Second Degree - Such person, who is the primary aggressor, intentionally allows a child under the age of 18 to witness the commission of a . . .family violence battery • Such person, who is the primary aggressor, having knowledge that a child under l8 is present and sees or hears the act, commits family violence battery.

7. Legal Requirements before Removal • Continuation in the home contrary to the welfare of the child • Reasonable efforts by DFCS to prevent or eliminate the need for the removal - 15-11-58 • Such findings shall be made at every subsequent review • Child’s health and safety is paramount - 15-11-58(a)(1) • Parents have right to zealous and competent representation. Indigent parents have right to appointed counsel

8. Principles for an Effective and Humane CPS System - Greenbook • Safety, well-being and stability for children and families • Children in care of non-offending parent • Community service system with many points of entry • Differential response to families

9. Principle I: Courts, lawyers, child protective agencies, domestic violence agencies must intervene to create safety, enhance well-being, and provide stability for children and their families. • Domestic violence perpetrators do not victimize only adults. • Where women are abused, their children are also often maltreated. • Services must be provided for the parent-victim to protect children. Erom: Effective Intervention in Domestic Violence & Child Maltreatment Cases – National Council of Juvenile & Family Court Judges - Greenbook

10. Principle II: To ensure stability and permanency for children, courts and communities must try to keep children in the care of their non-offending parent. • Historically, mothers have been held responsible for batterer’s violence – failure to protect; • Shortsighted to remove children from care of their battered mothers rather than remove the batterer; • Link the safety of the children to safety of the mother; • Communities must develop a broad range of services and interventions for family violence –Natl. Assn. Of Public Child Welfare Administrators (1999) Guidelines for a Model System.

11. Principle III: Responsibility for Family Violence Must be Placed Where it Belongs – On the Abuser • Criminal Responsibility • Civil Responsibility • Financial / Economic Responsibility • Batterer Intervention Programs • Parenting Training • Supervised Visitation • Drug/Alcohol Abuse Intervention – Not excuses, not causes of abuse.

12. DV ToolKit - Tools to Effectively Intervene in DV Cases Where Children are at Risk • Do’s and Don’ts • Caseplans • TPOs • DV Shelters • Separation from Batterers • Evaluations • Counseling

13. Do Educate Victims on Separation resources -Places, shelters Financial resources, Child Support Public Benefits TANF, Food Stamps Medicaid, Peachcare SSI/SSD Public/Subsidized Hsg. PUP funds Victims Compensation Don’t Make Victim Responsible for Separation Mandate Separation without safety planning - More women are killed leaving than staying. 75% of homicides during separation Separation from Batterer

14. Do Offer Services Relevant to the Safety Needs of the Victim and Children Don’t Order evaluations because “everybody” gets them - parenting classes won’t keep anyone safe Drug testing, mental health - being beaten is not a mental condition Evaluations

15. Make each party responsible only for the actions they can control. “Ms. Jones will not participate in domestic violence.” If he knows where and when her classes/evaluations/tests/services are scheduled, she’s in danger - and the case plan put her there. FVIPS are never appropriate for victims Joint Case Plans Put Victims & Their Children in Danger

16. Do Advise Client of Options Refer Client to Legal Services, Private Attys,Legal Advocate, Vic Asstc, SAAGs Realistically explain benefits and risks of TPOs Don’t Mandate TPOs TPOs can Anger Batterer Mutual TPOs Uses your authority to control victim Victim has more information than you upon which to make decisions Temporary Protective Orders

17. Domestic and sexual violence ...threaten survivors’ employment and economic security, which in turn creates and sustains women’s poverty. A cruel irony, this economic instability then becomes one of the most formidable barriers to survivors escaping abuse.

18. Economic Abuse • Court cannot use lack of economic resources as a basis for taking children from parents. • Court has held that “by harm, the court means either physical harm or significant, long-term emotional harm; we do not mean merely social or economic disadvantages.” Clark v. Wade,273 Ga. 587 (2001)

19. What can lead to economic abuse? • Lack of child support in TPOs • Lack of property awards in TPOs • Injuries requiring medical attention • Debts - Credit abuse • Lack of Enforcement

20. Custody and Batterers • Batterers are twice as likely to seek sole physical custody for their children than are non-violent fathers. • When batterers do press for custody, they are awarded it at the same rate of non-batterers, 50% of the time.

21. Forced Joint Custody Forcing joint physical custody on unwilling parents results in high levels of parental conflict and re-litigation, leaving children with two tense and angry parents.

22. Standards on Awarding Custody when FV - OCGA 19-9-1 (a)(2) – “In a proceeding awarding custody/visitation when family violence is found:” • Court shall consider as primary the safety and well-being of the child and parent who is the victim of family violence; • Court shall consider the perpetrator’s history of harming another; • If one parent is absent or relocates because of family violence such shall not be deemed abandonment of the child; • Court can order supervised visitation.

23. Court shall consider as primary the safety and well-being of the child and parent who is the victim of family violence; Court shall consider the perpetrator’s history of harming another; If one parent is absent or relocates because of family violence such shall not be deemed abandonment of the child; Court can order supervised visitation. Visitation Centers Alternatives Visitation- OCGA 19-9-1 (a)(2) – in a proceeding awarding custody/visitation when family violence is found:

24. Safety Planning • With the Adult • With the Children • Shelter Advocates - Experts in this area • Are Advocates on Case Panels in your community?

25. How Can We Hold the Batterer Accountable for the Violence - Not the Victim? Separate Caseplans for Perpetrators

26. Batterer Case Plans • Perpetrator will: • Commit no acts of violence; • Commit no intimidating acts, threats or verbal abuse • Remove all weapons • Comply with all court orders • Attend and comply with all Batterer Intervention program recommendations • Not use physical violence against children

27. Batterer case plans • Acknowledge past abuse • Comply with substance abuse recommendations • Comply with mental health recommendations • Pay child support as ordered

28. Voluntary vs. Involuntary Safety Plans • Temporary out of home placement. • With relative • With stranger care

29. Options for Parents • Compliance • Advocating for your family • Right to agree with plan • Right to a hearing • Right to know the case against you • Right to an attorney in court • Right to transcript • Right to an attorney on appeal

30. Risks of Not Signing Safety Plans • Deprivation action will be filed • Risking loss of custody of your children • Risking either way • At least you have a hearing to present evidence • Make the state their case by clear and convincing evidence

31. To Reduce Your Risk • Taken all precautions to protect your children • Safety – • Keep children from being exposed to family violence; • TPO, separation, reports to the police, document the threat, • Economic security – • Clean, well fed, clothed, school attendance, medical care, way to support, rent, utilities, transportation, family backup.

32. Evidence of your Efforts to Protect and Care for Children • Witnesses – • Care for your children • Tried to protect children, called police, shelter, schools, teachers, • Documents • Copies of police reports; TPOs; medical care; • 911 calls,

33. Document your efforts • Keep notebook, calendar, journal of what you’ve done to protect your family • Keep evidence of everything you’ve done at the instruction of the department.

34. Cooperative not Combative • Even though you may not agree to sign case plan or turn over children – remember • Cooperative with everything possible, short of turning over custody • Document your cooperation; document every contact, get names of people,

35. Casemanagers are People too. • Attitude – professional, agreeable, pleasant, keep children’s welfare first at all times; • All parties should be most concerned about children’s welfare. • Casemanagers have heavy caseloads – become frustrated • Help by offering alternatives, solutions • Ask Casemanager – short of removing the child what can I do to solve your concerns.

36. Bottom line • Do everything you can to show a reasonable person that you are doing everything you can to care for your children. • Then you can go to court if you have to and present a case that your children are not deprived.

37. “The total length of separations of mothers and children [that NY CPS] has caused is measured in years. The suffering and trauma it has caused cannot be measured.”Judge J. Weinstein, Findings of Fact, Nicholson v. Williams