11. Child Abuse and Neglect

(a)    The courts should recognize that parental or guardian alcohol and drug abuse is a frequent contributing factor in child abuse and neglect incidents, and existing neglect and other child protection laws should be utilized to assist families in dealing with alcohol and other drug abuse.
(b) Where existing child abuse and neglect laws do not enable the courts to deal with incidents in which alcohol and drug abuse are factors, these laws should be amended to provide such authority.

In the United States it is estimated that there are more than 28 million children of alcoholics: one out of every 8 Americans.273 Approximately 6.6 million of these children of alcoholic parents are under the age of 18.274 These children are over-represented in our medical and psychiatric facilities and in our juvenile justice system. No figures are available to date regarding the number of children of drug dependent parents, but given the high incidence of drug use in this country, the numbers have been estimated in the millions.

This recommendation is not intended to imply, however, that parents who are alcohol and drug abusers are se abusive or neglectful towards their children. The goal of this recommendation is to eliminate the legal barriers to treatment and to investigate alternative support services for those children and parents suffering from alcohol and other drug problems.

Historically, child abuse laws have been concerned with battered or abused children, and have defined these concepts in terms of physical harm.275 Several states have redefined these terms to include emotional or psychological harm.276 Neglect laws have been commonly defined as a parent's failure to protect their child from obvious physical danger. Neglect laws, in addition to child abuse laws, have been the subject of extensive legislative reform in an effort to define and measure the level of parental conduct necessary to trigger these laws.277

Broadly speaking ... child neglect occurs when the dominant expectations for parenthood are not met -- when a parent fails to provide for a child's needs according to the preferred values of the community. The legal concept of neglect calls for consideration for rights and corresponding duties as they arise within the tripartite interaction between child, family and the state. The basic goal of any neglect statute is to prevent harm -- physical always, sometimes also psychological and social -- from occurring to children. Determination of neglect is not merely, however, a question of medical or even psychiatric judgment, but it is essentially a social policy issue. Primarily, neglect denotes conduct in conflict with the child-rearing standards of the dominant culture, and determination of neglect is based on social as well as legal judgments.278

While no figures are available regarding actual abuse and neglect of children as a direct result of their parent's alcohol or drug abuse, there is speculation that the problem has become widespread.27 These fears are realized as more parents seek out treatment programs for their alcohol and other drug abuse.280

Due to the constitutionally protected parental right to be free from state interference in child-rearing, a state child abuse and neglect statute must not be overbroad.28I These statutes must be structured in such a way as to safeguard both the parental rights and the child's right to be protected from abuse and neglect.

Every state has enacted child abuse and neglect statutes,282 yet few statutes include parental or guardian alcohol or drug abuse as an express element contributing to the child's physical, mental or emotional impairment.283 The vast majority of state statutes define abuse and neglect solely in terms of physical harm to the child. Several statutes address the "incapacity" or "unfitness" of the parent, but fail to precisely define those terms.284 Most states have common law definitions of abuse and neglect, which may or may not include parental alcohol or drug dependency.

The State of New York, in an attempt to alleviate the widespread incidence of child abuse and neglect,28, addressed the potential link between parental alcohol and drug abuse and child neglect. The New York statutory scheme incorporates the instant recommendation:

(f) "Neglected child" means a child less than eighteen years of age:
(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally
responsible for his care to exercise a minimum degree of care (B)...or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; ... provided, however, that where the respondent is voluntarily and regularly participating in a rehabilitative program, evidence that the respondent has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he loses self-control of his actions shall not establish that the child is a neglected child in the absence of evidence establishing that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becominz, impaired as set forth in paragraph (i) of this subdivision.z66.

Thus, this statute creates a definition of neglect with respect to parental alcohol or drug abuse, yet also provides an incentive for those parents to obtain treatment.287 Parental abuse of alcohol, however, is not considered prima facie evidence of child neglect under the current New York law,288 even if the parent is exhibiting the symptoms of substance abuse described supra.289 The New York act provides in part that parental failure to provide "proper supervision or guardianship" is equivalent to the use of the "alcoholic beverage to the extent that (the parent) loses self-control of his actions."290 There must as well be shown a resultant impairment or threatened impairment of the child to satisfy the New York statutory definition of neglect.

Direct proof of a parent's addiction is not always easily available. For example, many children born to drug and alcohol abusers exhibit withdrawal symptoms at or shortly after birth.29I Courts have constructed a rule of evidence designed to address the neglect of these children. Under these laws a new-born having withdrawal symptoms is prima facie evidence of a neglected baby.292 Some states include within their definitions of child abuse and neglect those children in utero whose parent's drug or alcohol abuse is a substantial and
on-going practice. While significant policy questions surround the rights of the mother and those of the fetus, successful treatment of alcoholic pregnant women has been obtained under court order, with later custody of the unborn child contingent on the attainment of abstinence.293 This example of government intervention accomplished two major objectives: (1) treatment of the pregnant women's substance abuse and (2) protection of the child from potential abuse and neglect.

At least one state has established a "Juvenile-Family Crisis Intervention Unit"294 in each county under its Family Court which operates under the theory that "a vast majority of juvenile misconduct is a result of troubled family circumstances."95 The law in this state defines a juvenile-family crisis to include a repeated disregard for lawful parental authority, abuse of parental authority, or a threat to the well-being of the juvenile, truancy, or running away. The unit which responds to the crisis operates either as part of the court intake service or through another appropriate public or private county agency. The intake procedures include a requirement that the crisis unit file recommendations to resolve the juvenile-family crisis where it has reason to believe that the parent or guardian involved is an alcohol or drug dependent parent.296 This program also provides for specific action if there is reason to believe that the juvenile is an abused or neglected child as a result of the parent's alcohol or drug abuse.297

In those cases where intervention measures fail to work and a drug or alcohol abusing parent is charged with child abuse or neglect, some states adopt creative treatment measures to avoid termination of parental rights, or other drastic measures which further disrupt the family. One example involves probation with mandated treatment as a sentencing option.198 Using the model of drinking-driver rehabilitation programs, a court could offer the parent the option of an educational program on child abuse and parenting, or peer diagnosis and treatment for substance abuse as a condition to retaining custody, the wish to retain child custody being a painful motivation for most parents.299

Since states have diversion programs for youth as alternatives to incarceration, an argument can be made that parents could benefit from diversion programs as well. Community services performed in juvenile facilities or child protection agencies, coupled with treatment programs for alcohol and drug abuse, can often times be more productive avenues than incarceration, probation or termination of parental rights. Because of the great potential for harm to children from alcohol or drug abusing parents, this recommendation urges states to support child abuse and neglect laws that include parental alcohol and drug problems as possible causes of child abuse and neglect. These laws could then provide a viable means for treating children, and their parents afflicted with alcohol and other drug problems.

271 See supra notes 248 and 249.

272 5ee the recommendation and report regarding legal training on alcohol and other drug problems.

273 Testimony of Sheila B. Blume, M.D., Princeton. Recent statistics on children of alcoholics reveal that: 7 million children under age 20 are children of alcoholics; some 500,000 children in New York State live in alcoholic families; more than 50% of all alcoholics have an alcoholic parent; and sons of alcoholic fathers are 4 times more likely to become alcoholics than sons without alcoholic fathers. THE MAGNITUDE OF SUBSTANCE ABUSE IN AMERICA, supra note 6, at 11.

274Testimony of Sheila B. Blume, M.D., Princeton.

275Katz, Have & McGrath, Child Neglect Laws in America, Fam. L.Q. 1, 4 (Spring 1975).

2761d.

277Id. at 5.

2781d.

279 A conflict currently exists between federal statutes and regulations protecting the confidentiality of alcohol and drug abuse patients, and state laws which require child abuse and neglect reporting. This conflict has been the subject of several State Attorney General rulings and at least one court battle, State v. Andring, 342 N.W.2d 123 (Minn. 1984). The Alcohol Drug Abuse and Mental Health Administration (ADAMHA) has commissioned a study on the problem, which is being conducted by the LaJolla Management Corporation with the Legal Action Center acting as Special Consultant. It has been suggested that data from this study may assist this Commission in making its recommendations to make changes in the law, if appropriate. See testimony of Paul Samuels, Esq., Princeton.

280 See    •1 Densen-Gerber, Hutchinson & Levine, Incest and Drug-Related Child Abuse: Systematic Neglect by the Medical and Legal Professions, 6 Contemp. Drug Problems at 135 (1977). See also Panel Workshop: Violence, Crime, Sexual Abuse and Drug Addiction, 2 Contemp. Drug Problems at 383 (1974). Densen-Gerber and Rohrs, Drug Addicted Parents & Child Abuse, 5 Contemp. Drug Problems at 385 (1976).

28I Besharov, State Intervention to Protect Children: New York's Definitions of "Child Abuse" and "Child Neglect", 26 N.Y. L. Rev. 723 (1981).

282 See generally Child Neglect Laws in America, supra note 277.

283 In 1977, the Institute of Judicial Administration of the American Bar Association published a draft on Standards for Abuse and Neglect. In 1981 the ABA National Legal Resource Center for Child Advocacy and Protection published A Summary and Comparison of Grounds [for Termination of Parental Rights] from Nine Model Acts, including the 1977 ABA draft. Four of the model acts included alcohol and drug abuse by a parent as a specific factor to be considered in termination of parental rights. The ABA draft, by comparison failed to include parental alcohol or drug abuse as a specific ground.

2841d.

285 In 1979, 92,000 cases of known or suspected child neglect were reported in New York State. This was a 45-fold increase over 1969, when 3,169 cases were reported. State Intervention to Protect Children, supra note 281, at 724.

286 N.Y. Civ. Prac. Law Sec. 1011, et. seg. (McKinney, 1984) (Family Court Act).

287 Cf. N.Y. Civ. Prac. Law Sec. 1046 (a)(iii) (McKinney 1984), provides that evidence of drug addiction is prima fade evidence that a child or one who is the legal responsibility of a drug addicted parent or guardian is a neglected child. The requisite proof of this abuse is further defined as:

Proof that a person repeatedly uses a drug, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality....

The statute assumes that if a parent or guardian exhibits the specified degree of drug addiction, then he or she must suffer impaired judgment, from which the child inevitably suffers.

Practice Commentary at 227. Other state statutes and courts have not adopted this prima facie approach to neglect caused by substance abuse. See the recommendation and report regarding custody and visitation.

288 N.Y. Civ. Prac. Law. Sec. 1046(a)(iii) (McKinney 1984). 289See supra note 286.

290 Id. at Sec. 1012 (f)(i)(B).

29I 5ee Blume, Children of Alcoholic Parents: Policy Issues (Brown University 1983) (Discussion of Fetal Alcohol Syndrome).

292 5ee Practice Commentary, supra note 287, at 261.

293 Children of Alcoholic Parents, supra note 291, at 6.

294 N.J. Stat. Ann. Sec. 2A:4A-76 (West 1984).

295 5ee Senate Judiciary Committee Statement appended to N.J. Stat. Ann. Sec. 2A:4A-76 (West 1984).

296 N.J. Stat. Ann. Sec.2A:4A-85 (West 1984).

297 The ABA National Legal Resource Center for Child Advocacy and Protection has provided some guidelines for training and developing qualified attorneys for children in abuse and neglect cases. See, sta., Horowitz, Upgrading Legal Practice in Juvenile Court in Protecting Children through the Legal System, at 868 (ABA 1981). There may also be a need for the appointment of a guardian ad litem for the child. See Davidson, The Guardian Ad Litem An Important Approach to the  Protection of Children in Protecting Children through the Legal System  at 83.5. See also recommendation and report on Dependency and Neglect  Proceedings in Protecting Children Through the Legal System at 126.

298 Children of Alcoholic Parents, supra note 291, at 6.

299 Id See recommendation and report on child custody and visitation.