Child Abuse and Neglect and the Middle-Class Exception

By Nick Levinson

When the legal system fails with poor people, it’s time to fix it. Children and parents who are poor are among them.

Abuse and neglect of children happen. They seriously harm the children and the larger society pays the costs, in added care and crime and loss of education and employability.

This is true regardless of what constitutes abuse or neglect. Different societies have different criteria, some are severely wrong, and criteria change over time. If the criteria in use should change, that does not alter the abstraction that some set of criteria needs to be applied and enforced.

For any definitions currently and locally in effect, stopping abuse and neglect may depend on community intervention. Sometimes, parents resist or refuse intervention. If gaining compliance from a parent requires force above a given threshold, a society generally does not want just anyone using that force against anyone else; it often comes with bad judgment, so the society usually outlaws that much private force. The society instead wants government specialists or no one to apply that kind of force as part of stepping in between a child and a parent, even if the parents object to the outsiders stepping in.

The law must be upheld in both directions: both child and parent have rights that must be protected. Protection from abuse and neglect has to be enforced and, at the same time, parents who are not abusive or neglectful have to be free to raise their children as they see fit. But that can generate conflicts over rights of the parties, conflicts over law that must be resolved. Law is complicated, so lawyers are almost always needed on both sides.

A lawyer has many tools with which to represent a client, but legal representation is often pricey, because a lawyer’s education was likely expensive, a case can require many hours, days, and weeks of exclusive service, and there’s usually a competitive demand for their services. A client has a limited amount of money, or none, with which to pay for legal services. Perhaps free legal services are available to parents with low incomes and few assets, but they’re usually paid for by a government and the attorneys paid by a government to represent anyone against the government tend to be paid less, both in personal income and for expenses on cases, than are private counsel.

Middle-class and upper-class families, on the other hand, can afford private counsel’s higher fees. The more expensive counsel can perform in ways that low-budget counsel can’t afford. A poor parent’s lawyer has the same legal tools but not the time and budget to use them. So, usually, they don’t use them. Even if a vanload of agency documents arrives, they won’t have time to read them, so they don’t order that many documents, even if they need them, and the agency isn’t going to volunteer them. The lawyer is often sincere, very assertive, and clear to the agency on the family’s behalf, but the agency knows it can usually afford to counter the steps taken by the poor family’s lawyer. So, when the family is poor, the agency usually wins.

However, when there’s more money for fighting a case, the well-paid attorney can do more than the agency can counteract. That’s an advantage enjoyed by the middle class. An attorney representing a middle-class family (throughout this article I’ll subsume upper-class families as arguendo having the same power as middle-class families do) can, for example, call the agency’s chief lawyer and point out what to expect. The private attorney can announce an intention to subpoena witnesses, such as a caseworker and various supervisors, clerks, and agency executives, and require them to testify in depositions to what they know of the case and of procedures. Those subpoenas will lead the agency to prepare the witnesses for what the family’s lawyer might ask, which does not have to be disclosed in advance and might be extensive and surprising. Preparation can average several hours for each witness.

Subpoenas for documents and tangible things can also be issued on behalf of the middle-class family. Those tend to go beyond public records and basic case files. Emails, internal manuals, committee meeting minutes, and scribbled notes may all be fair game. The search for documents often requires that the agency’s lawyer and many of the agency staff, including upper management, work together to review office files for whatever may have to be submitted in response to a subpoena. Working together can take a lot of hours.

The agency can ask a court to limit or quash a subpoena, like if it’s a fishing expedition, and a court might trim some of the demands, but will usually support the family’s effort to collect evidence before trial even if the agency thinks it’s unnecessary. The agency’s lawyer can ask the family’s lawyer for more weeks and will get some extension, but the family will protest the keeping away of the child and therefore protest any lengthy delay. If the agency is simply slow to produce, the attorney can get a court order to speed things up. While freedom of information law has certain exemptions that may protect some of an agency’s records, subpoenas are not under FOIL. If the agency does not comply, the private lawyer can get a court order to enforce the subpoenas. Violation of a court order can lead to a judgment of contempt of court and prison time for the recalcitrant officials. The court can also force the noncompliant agency to give up some of its claims, and that could help the family. The agency will want to comply.

Also, the agency’s attorney will likely advise the management on case progress and its likely outcomes. Those conferences take time, too.

Those will be hours of doing nothing else. And, all those hours will be expensive. They’ll get charged against the agency’s budget. That will leave a hole in the budget for the protection of other children.

The damage to the agency’s budget will be so high that the agency will often have to choose between one middle-class child and two or three poor children, because it can’t afford to do both. It will have to let one side go. Unless the expensive case is of extremely bad abuse or neglect, and, by definition, almost no cases are extreme, it will probably be dropped and the family unconditionally reunited to save the agency’s budget.

The law probably doesn’t let caseworkers make judgments based on budgetary costs to the agency. But, while caseworkers probably don’t have much information on the budget, upper management does, and upper management has the responsibility to stay within the budget or beg the government’s chief executive or legislative branch for more money, which probably won’t come. So, upper management will cut its losses and talk to a case supervisor. A supervisor can give a caseworker advice on how to view the case in order to conserve agency resources. A supervisor can suggest taking the parents’ word about some of their good deeds and let the parents resume their relationship with the child and drop the agency’s involvement. It’ll likely upset the caseworker, but, from the agency’s standpoint, it’s for the greater good. But that’s from the agency’s standpoint within a framework of the budget and political support it receives.

The agency often won’t wait for the subpoenas. Soon after the family’s lawyer says what’s coming, the agency will likely back off and drop the case, like by concluding that, on further review, no abuse or neglect of the child has been found. The earlier complaint can then be deemed unfounded.

A child may have to be left unprotected because that child is from a middle-class family and the agency can’t afford to defend its action against that family. However, a poor family can’t afford its own defense and their free lawyer can’t do much, so the agency can protect children in poor families. But there’s another way of looking at this: A family may stay intact because it’s a middle-class family with good legal representation and the agency can’t defend its action against that family. However, a poor family can’t afford its own defense and their free lawyer can’t do much, so the agency can break up poor families and take away their children even if not abused or neglected. This has happened, more than once.

An agency middle manager publicly complained about a quarter century ago about the harboring of virtually all middle-class parents.

While class distinctions occur in most subjects, the problem of a forced choice may be starkest in abuse and neglect cases. Going forward, agencies that don’t want to go through that experience again and wanting to be proactive are more likely to respond to complaints or tips about middle-class families minimally or dismissively, seeking to discredit or unfound the negative claims as early as possible. Agency people may believe that abuse and neglect know no class boundaries, but management decisions lead to effectively exceptionalizing people with enough money to hire private attorneys, and the effect is to highlight abuse and neglect only in poor families. The agencies then publicize their accomplishments, which are mostly against poor families. Abuse and neglect then get seen by the public as largely a poor people’s problem. Politics, driven by the larger and politically savvy middle class, turns against the poor.

Middle income families have more resources than low income families have, so perhaps middle class families are less abusive or neglectful of their children. But that statistical benefit does not eliminate abuse or neglect anywhere, which can occur in the wealthiest families. Beliefs about the right ways to raise children, at least when practiced, when wrong, may damage the children even among the affluent.

But the effect among the wealthier is not noticed much. Instead, poorer parents are targeted as likelier to abuse or neglect. Communities of poorer parents then sense that they’re being targeted. They already feel that way. They historically have grounds. They warn each other. They become defensive before a caseworker ever shows up. They worry. And they can’t afford to put attorneys on retainer. Whether their children get taken away depends less on legal talent and more on local political policy.

Most people tend to approve of a majority, especially a successful majority. Most people being middle class, they tend to approve of the middle class they’re in and disapprove of poor people. The middle class sees itself as mainly good and poor people as mostly defective, so it’s easier to see child abuse and neglect as mainly a poor people’s problem. The public mainly thinks that being poor is because poor people don’t work enough but do overspend on the wrong things. In effect, the public largely blames poor people for being poor. Sometimes, they’re right; often, they’re not; but, regardless of right and wrong, the public opposes much taxpayer funding for government agencies that mainly serve poor people. That includes agencies centered on child abuse and neglect. Underfunding is not a one-year aberration; it repeats every year.

Without much funding, the agencies can’t afford much legal talent. Neither can poor parents.

From the standpoint of the children who are or are not being abused or neglected, injustice persists. While some children need the protection of being moved to a safe place by first being taken from abusive and neglectful parents, often the children disagree; if the children are right and the parents agree, and if a parent is in fact not abusing or neglecting when the agency thinks s/he is, then the parent needs a competent defense, but the only defense available may be from an attorney who, being overworked or underpaid, cannot provide a competent legal defense. For that, defense services must be improved to prevent unjust breakups of families. If the agency is right that a child is being abused or neglected by a parent with the means for such high-grade legal representation that the agency cannot afford to defend its position, injustice is harming the child and the agency needs the more elaborate defense of its position to be paid for so it doesn’t have to sacrifice a child to a parent’s affluence.