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Op-Ed: Loophole in abuse, neglect statutes permits inaction to persist

Posted by Gen Justice on 03/04/2019

Originally published by Arizona Capitol Times

An Oklahoma mom killed her newborn by putting him into the washing machine with a load of laundry. A Utah mom gave her 17-month-old a fatal mix of methadone and Tylenol. A Pennsylvania mom suffocated her six-week-old.

What do these tragedies have in common? The parents were battling drug addiction.

Federal law has long required states to protect drug-exposed babies after they leave the hospital. But according to an extensive Reuter’s report, that effort is “failing across the nation … endangering a generation of children born into America’s growing addiction to heroin and opioids.”

Last year, Arizona took the national lead in protecting opioid babies. Championed by Gov. Doug Ducey and Rep. Nancy Barto, a bipartisan child safety package became law with near unanimity. The law strengthened protections for drug-exposed infants.

Most of the provisions are working as legislators intended. Kinship searches appear to have been expedited and infant stability has improved.

With one important exception. The 2018 law requires a specific check for severe abuse and neglect in all dependency actions. The intent is to flag the cases of children who face immediate danger, to ensure legal safeguards for all parties, and to bring these cases to the attention of the judiciary to ensure these children don’t fall through cracks of an overburdened system.

In practical terms, those steps keep the infant alive and give the parent time to get clean.

But a loophole has been created to avoid the specific check for severe abuse that the law requires. If a court action is not filed on behalf of a child, the law does not apply.

All officials need to do to keep a baby off the books is avoid filing the dependency paperwork. This makes it appear that fewer children are entering the foster care system.

This means vulnerable infants are leaving the hospital in the care of adults with raging drug addictions – without legal counsel for parents, without representation for infants, and without judicial oversight. When fundamental rights are on the line, including the right to parent and the child’s liberty, bypassing basic due process protections is constitutionally suspect.

Last year’s reforms were adopted out of necessity: The Twenty-Fifth Arizona Child Fatality Annual Report shows that more than half of child maltreatment deaths had a “CPS history” or were “open” cases at the time of death. Most were children under five. The report concludes: “One hundred percent of child maltreatment deaths were determined to have been preventable.”

Arizona’s rising mortality rates due to child maltreatment are a red flag. While there have been some fluctuations in the rates between the years, the overall mortality rate due to child abuse has continued to increase since 2012. HB 2378 asks for an additional data point related to fatalities to help the care community understand what’s going wrong.

Another bill has been floated that could set safety back still further. This bill would prohibit private attorneys and anyone other than the state or immediate relatives from filing with the court. That change would make government the only entity, with few exceptions, with the ability to bring child abuse to the court’s attention.

The Legislature worked diligently last year to ensure that drug-exposed infants would not become fatality statistics. We applaud legislators for continuing to bring transparency to child welfare. The state’s own fatality report says these deaths are preventable. It’s time.

Darcy Olsen is the Founder of Gen Justice, www.genjustice.org.