Blaming victims: Abused women should not suffer again by having their children taken away

Guest editorial by Kenneth J. Theisen, Bay Area Legal Aid

The San Francisco Daily Journal, October 12, 2001, reprinted by permission of the author

Imagine being abused by your husband or boyfriend. Your children have witnessed this abuse and may have been subject to abuse by your abuser. You finally manage to call the police. The police arrest your abuser, but they also do something you did not expect. They call Child Protective Services. Before you even have a chance to seek medical treatment for your injuries, your children are being taken away by a caseworker. You are told they are being taken away due to your "failure to protect" them. They will be placed in foster care. You are in shock.

For many women, this nightmare scenario does not need to be imagined. It is a reality that they must face. Anyone who has worked with survivors of domestic violence for an extensive time, like I have, can recount similar stories. In New York, some of these survivors are trying to put an end to these legal nightmares.

In Nicholson vs. Williams, et al (Case Number 00-CV-2229) they have brought suit against New York State, the City of New York, The New York City Police Department, the Commissioner of the Office of Children and Family Services, and various officials. In this 42 U.S.C., Section 1983 action they claim, "Under the misnomer of 'child protection', defendants routinely harass and terrorize victims of domestic violence and their children, violating their fundamental rights." The plaintiffs want to reform the child protection system so that children and their abused mothers get appropriate services, rather than being victimized by the system that they thought would help them escape their abuse.

The problem of child abuse and neglect in families where the mother experiences domestic violence is extensive and the solutions are complicated. The U.S. Department of Health and Human Services states that "approximately 826,000 children are abused by their parents each year. Children whose mothers are victims of wife battery are twice as likely to be abused themselves as those children whose mothers are not victims of abuse." According to the National Domestic Violence Hotline, "In 70 percent of the cases in which child abuse occurs, mothers are also being abused."

Various studies estimate that between 3.3 and 10 million children a year witness or directly experience violence in their homes. These children may witness physical assaults. They may overhear the batterer threaten to kill the children or kidnap them. In extreme cases, like that of Claire Tempongko in San Francisco, they may witness their mother stabbed to death. In other cases they may be the fatal victims.

Young children who witness violence in the home may display or suffer from sleep disturbances, increased separation anxiety, headaches, ulcers, stomach or other body aches. They may worry about their parent's or their own safety. Children of all ages who witness or suffer family violence may be unable to concentrate or carry out school tasks. Their cognitive and learning abilities may be affected. They are more likely to suffer depression or attempt suicide. They may become more aggressive themselves. I frequently hear from clients that their male children are "beginning to be violent like their father." A Missouri study concluded that, "Boys who grow up in violent households are statistically more likely to become batterers than boys from non-violent homes."

It is clear that domestic violence has a major impact on children in homes where it occurs. But in most cases the solution is not to remove the children from the victims of this violence.

Historically the systems to prevent child abuse and domestic violence have worked independently of one another and sometimes even at cross-purposes. Child protective agencies have generally seen the mother's role as one of "failure to protect" the children from the abusive partner in domestic violence situations. They have not seen that the safety of the child may depend on addressing a situation which puts both the mother and her children at risk. Domestic violence prevention organizations have focused on protecting the survivor of domestic violence.

It is critical that the two systems work together to prevent the violence and create an environment that is safe for the mother and her children. Child welfare agencies need to refrain from activities that actually place the family in greater danger. I have spoken to many women who have been afraid to seek assistance because they feared that they may lose their children. Abusers frequently use this threat to maintain control over their victims. A victim of abuse should be able to seek assistance and know she will receive assistance from child welfare agencies rather than punishment.

The two systems also need to interact closely with other systems, including but not limited to the civil (juvenile and family) and criminal courts, the police, probation and parole agencies, schools, and medical facilities. These agencies should be working toward helping the survivors of violence assist their children and making the perpetrators of domestic violence accountable for their actions.

The primary purpose to be achieved by these various agencies working with one another is to ensure the safety of the child and the mother. Where the child's safety can be assured, the child should be returned to or kept with the non-abusive parent rather than placing the child in foster care. Domestic violence services, such as access to attorneys who can obtain restraining orders, divorces, custody, and safe visitation orders should be made available to the victims of domestic violence. Safe housing opportunities should be made available. There needs to be adequate funding for Section 8 Certificates, battered women's shelters, and other sorts of housing such as transitional housing for survivors of domestic violence. Different studies have indicated that up to one half of women who are homeless are without a home due to domestic violence.

Substance abuse treatment, job training, education, child care, parenting classes, counseling, medical treatment and other related services should be made available where appropriate to the survivors and their children. All too often, victims are told to get these services, but little is done to make them accessible to the victim. Failure to get substance abuse treatment or attend parenting classes may result in a mother losing her children. But often, the treatment programs and parenting classes are full and have waiting lists.

Where domestic violence is present, some normal practices such as marital or family counseling with both parents present may be inappropriate since it fails to take in to account the power imbalance between the parties. Interviewing or questioning the victim and the perpetrator together is also not appropriate, but this is often done by child welfare investigators.

It is also critical that foster care and adoptive homes be screened for domestic violence. Many times, the children may be placed with the abuser's relatives. These relatives may allow the perpetrator unauthorized contact with the children. There is sometimes domestic violence in these homes as well.

Training is a very important component of mother and child safety. Child welfare workers and domestic violence prevention workers should receive cross-training in their respective fields. Police, judges, lawyers, social workers, medical personnel, probation officers, drug treatment, abuser treatment workers, and others should also receive training about domestic violence and child safety.

Models for dealing with the overlap between domestic violence and child maltreatment need to be developed and replicated. The National Council of Juvenile and Family Court Judges has published a book entitled, "Effective Intervention in Domestic Violence & Child Maltreatment Cases: Guidelines for Policy and Practice." This is now known as the Green Book, due to the color of its cover. This is must reading for not only those in the legal field, but its recommendations are important for all those involved in the solution to these problems.

The federal government has offered funding for six pilot projects to implement the Green Book's recommendations. Two of the grantees selected are Santa Clara and San Francisco Counties. Once the results and lessons of these projects are studied, additional funding should be made available.

With millions of women and their children affected by the problems of domestic violence and child maltreatment each year, it is crucial that we do whatever is necessary to solve this problem. Women who are abused should not be re-victimized by the system that should be helping them and their children.

Kenneth J. Theisen is the Communications Director for Bay Area Legal Aid.