Legal Loopholes Lead to Abused Children Falling Through the Cracks

As a nation, our laws are generally very thorough and comprehensive.  Anyone who has ever tried to file taxes on their own knows this all too well.  Our laws are particularly comprehensive when it comes to our children.  We have laws mandating what immunizations a child must receive; when, where, and how often a child must go to school; and laws limiting child labor. 

We have laws against selling alcohol, tobacco, and pornography to children and laws against children buying those things.  We have laws that demand that parents care for their children properly and laws that demand that children be taken away from parents who do not live up to that standard of care.

It is always a surprise to learn that there are loopholes in the law.  Obviously, because humans are not clairvoyant, not every possible scenario can be accounted for: unexpected events occur.  If we did have perfect predictive abilities, there wouldn’t be much work for legislatures to do.  So we expect and accept that there will be holes and gaps in complex areas of the law, and we hope that they are closed as quickly as possible once we discover them.  But when loopholes arise in areas of the law that are straightforward and involve problems that were easily foreseeable, we are shocked and often frustrated.

My time as a Stoneleigh Emerging Leader Fellow has been spent researching one of these frustrating loopholes.  Each state has a child protective services (CPS) agency that accepts reports of abused and neglected children.  CPS agencies investigate those reports and, if abuse is found, can remove the child from the home and/or provide services.  This process is all very straightforward and very well accounted for if everything happens within one state.  But what if the child is abused in one state but lives in another?  What if the perpetrator lives in another state?  Which state’s responsibility is it to receive the report, investigate it, provide services, or begin legal proceedings? It is hard to believe, but this obvious and foreseeable reality has no legal remedy. In fact, there is an urgent need for law to be created allocating responsibility between states, when the child, the perpetrator, and the location of the abuse aren’t co-located.

Before responsibility can be assigned to one state or another, though, we have to make sure that at least one state will handle the report.  Unfortunately, there are often cases where no state takes responsibility.  Consider the case of Amanda Froistad.  Amanda’s parents were divorced and had joint custody over her.  She lived primarily with her mother in South Dakota and also spent significant time with her father in North Dakota.  While Amanda was in North Dakota with her father, he sexually abused her.  When Amanda went back to South Dakota and her mother discovered this, she called South Dakota’s CPS agency. However, South Dakota CPS would not investigate the abuse report because the abuse happened outside of its jurisdiction.   When she called North Dakota CPS they also refused to investigate based on the fact that they could only investigate if the child currently lived in North Dakota. Not only did neither state investigate but Amanda’s mother had no choice but to send her back to her father when his turn for custody came.  Her father burned down his house with Amanda inside, killing her.

 How can this happen in America?  How can these gaps in CPS jurisdiction exist?  The short answer is that there is no uniform federal standard.  States are free to take jurisdiction (or not) as they see fit.  The states that do have explicit laws on CPS jurisdiction are largely inconsistent with one another.  Even worse, most states do not have any laws defining CPS jurisdiction, so it is up to individual CPS workers to make these decisions on the fly on a case-by-case basis.

Fortunately, through my fellowship I have been able to get some legislative traction on the issue.  I have spoken with staff as well as state and federal legislators from both chambers and on both sides of the aisle.  The issue has been raised by multiple witnesses before the Pennsylvania Task Force on Child Protection.  Professionals in the field now recognize that the issue poses real challenges to the national child protection system.

Although I hope to see progress soon, I recognize that the glacial pace at which legislation often moves means that change is unlikely to occur quickly.  Still, this is an important issue.  I hope that everyone reading this will remember it and take action on it whenever they have the chance.  We can’t allow any more children to end up like Amanda Froistad.  We can’t allow any more children to fall through the cracks.

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