THE PARENT TRAP: REBALANCING PARALLEL ENFORCEMENT BETWEEN CHILD PROTECTIVE SERVICES AND LAW ENFORCEMENT.

• Author: Mcevoy, Ryan Charles

INTRODUCTION 868 I. BACKGROUND 871 A. The Criminal Justice-Child Welfare Nexus 871 B. CPS Investigation and Family Court 875 C. System Clash 879 II. REBALANCING PARALLEL ENFORCEMENT 882 A. Overenforcement of Neglect 883 1. CPS as "Police-Lite" 883 a. CPS' Broad Mandate 884 b. Pursuing Neglect and the Strain on Communities 886 c. Weak Safeguards in CPS Investigations and Family Court 889 2. Endangerong the Welfare of a Chaild 893 a. Explaining Criminalization 893 b. Blurred Lines Between Criminal and Family Court 895 c. Separate but Not Apart 808 3. A Return to CPS 800 B. Underenforcement in Abuse Cass 902 1. Taking Child Abuse Seriously 902 a. The Case of the Child Victim 903 b. The Uncooperative Caregiver 908 c. Pursuing Justice for Children 912 2. Making Enforcement Parallel 914 III. PARALLEL ENFORCEMENT REDUX 916 A. Compliance with State and Federal Law 917 B. Looking Beyond New York 919 CONCLUSION 924 INTRODUCTION

For decades, something has been amiss in the way in which Child Protective Services (CPS) and law enforcement in New York pursue cases of child abuse and neglect. A working parent makes a bad judgment call, such as leaving a child home alone for a few minutes while going to buy groceries, and in the next moment, is under arrest for Endangering the Welfare of a Child. (1) Regardless of the outcome of the criminal case, CPS will launch an investigation of the parent, which could eventually result in the removal of the child from the home--all because of a temporary lapse in judgement.

Meanwhile, in a different but more serious case of child abuse, the outcome could be much different. For example, if a mother's boyfriend physically abused the child, CPS would lack jurisdiction over the case. If the district attorney brings a criminal case against him, the child's testimony would be critical. But the mother may refuse to cooperate with law enforcement because she is a survivor of domestic violence and fears retaliation, or because she is worried about additional interaction with CPS. Because of the mother's uncooperativeness, the criminal case against the physical abuser will fail either pursuant to the speedy trial statute, (2) or because the prosecutor lacks sufficient evidence to obtain a plea or go to trial.

This pair of hypothetical examples encapsulates the two major avenues through which New York pursues perpetrators of child abuse and neglect. The first is a civil system consisting of CPS and family court; the second is the criminal system comprised of police, prosecutors, and the criminal court. The systems are formally separate, allowing for the state to pursue sanctions in either or both, depending on the case.

But in reality, the civil and criminal systems frequently work together to share resources and even legal findings. This cooperation allows the state to pursue penalties in low-level child neglect cases, which are normally a byproduct of the parent's poverty. That cooperation is more limited in serious cases involving, for example, physical abuse, in which the police and district attorney's office must rely on the cooperation of the child's caregiver, or resort to coercive methods which will potentially separate the caregiver from the child, to make out their case. Because of this dynamic, the criminal case is at risk of falling apart early on. Correcting this confusing paradox--in which the government aggressively pursues neglect cases but lacks that same capacity in serious cases--requires reconsidering the appropriate roles of each system and communicating those distinctions to the communities those systems monitor and police.

In this Comment, I use New York as a case study to explore the interaction between CPS and law enforcement. I suggest that the framework of parallel enforcement represents a new way of thinking about the interaction of the two, describe how the application of that framework raises concerns about New York's pursuit of child abuse and neglect cases, and offer two concrete solutions toward solving the enforcement dilemma. (3) In Part I, I describe the different ways in which New York CPS and law enforcement approach the problems of child abuse and neglect, as well as how the two systems are both required to and freely choose to interact with one another. I explicitly frame this issue as one of parallel enforcement--or the state's investigation and enforcement of the same underlying conduct in two different legal domains--and use this framework to illustrate the points of convergence and divergence between the systems. I then map the development of a typical CPS case, highlighting how this area of family law is a hybrid of state and federal law, and contrast CPS investigations and family court practice with law enforcement's approach. Despite the two systems' efforts to work together, different philosophical, institutional, and operational practices often lead to system clash, potentially jeopardizing each process.

In Part II, I examine an imbalance in the way that the state pursues cases of child abuse and neglect, identifying situations of both overenforcement and underenforcement of the law. Overenforcement is visible in how the state aggressively pursues low-level cases of child neglect, which are often triggered by the caregiver's poverty. Employing the rationale of parallel enforcement, the state activates both the child welfare system and law enforcement to obtain compounding sanctions for caregivers. Together, these processes may result in both child removal pursuant to a civil order and a criminal conviction for Endangering the Welfare of a Child. I show that the reliance on the logic of parallel enforcement is selective, providing the government with an abstract justification for pursuing two cases in different forums while simultaneously breaking down the theoretical separation between the two in day-to-day practice. The result is that both systems become more coercive. Drawing on sociological scholarship, I critique this crossover for weakening trust between the state and communities and ultimately harming children's well-being. I contend that clarity can be provided by shifting most of these cases to family court, which is better prepared to order the preventative services favored by recent developments in federal law.

I then turn to underenforcement, where I argue that while the state appears anxious to pursue low-level neglect cases, it does not handle cases of serious child abuse with the appropriate level of care. These cases, which often involve the caregiver's partner, are deeply challenging, as they are largely outside of the reach of CPS and difficult to successfully prosecute in criminal court. Here, I introduce the problem of the uncooperative caregiver, who may refuse to cooperate in law enforcement's investigation of the crime against the child. I suggest that contrary to certain stereotypes about mothers in particular, a lack of cooperation may be attributable to a sloppy system of parallel enforcement that fails, in theory and in practice, to communicate clearly with parents about the risks, or lack thereof, of supporting the district attorney's child abuse investigation. In order to disentangle parallel enforcement in this area, I offer a modest proposal to provide the caregiver with certainty about the roles of the two systems.

In Part III, I conclude by demonstrating that these dual proposals--shifting neglect cases to family court and more aggressively pursuing serious abuse cases--would conform to both the letter and the spirit of state and federal law. While I primarily focus on New York, I refer to other jurisdictions to highlight common problems and areas for improvement. Because of the similarity of enforcement structures and systemic problems, I contend that the solution proposed here could be replicated in other U.S. jurisdictions.

1. BACKGROUND

   CPS and law enforcement frequently work together either pursuant to a statute or because of a common interest in sharing responsibilities in child abuse and neglect cases. This includes investigating and sanctioning the same conduct in the civil and criminal systems, in a process known as parallel enforcement. The frame of parallel enforcement reveals points of convergence and divergence in a dual-enforcement regime. Indeed, operating under a parallel enforcement framework rarely results in seamless cooperation between the two agencies. As a result of different philosophical approaches and operational objectives, these agencies may come into conflict and interfere with each other's investigations. Nevertheless, recent attempts to deconflict the agencies' work--such as through the use of Child Advocacy Centers--has concretized a close relationship between them.

   1. The Criminal Justice-Child Welfare Nexus

      The criminal justice and child welfare systems have distinct roles in preventing and responding to child abuse and neglect. (4) In New York, the purpose of the CPS (5) system is to protect children by investigating reports of abuse and neglect and to "provid[e] protection for the child... from further abuse or maltreatment and rehabilitative services for the child or children and parents involved." (6) CPS has jurisdiction only over matters involving parents and other persons legally responsible (PLRs) for the child. (7) While both federal and state law govern the administration of child welfare services, child welfare is fundamentally a state issue, (8) and New York belongs to a minority of states that administer these services at the county level. (9) Fundamentally, CPS cases are civil proceedings within the domain of the local family court. (10) In contrast, law enforcement--whose primary actors are the police and district attorneys--only becomes involved when the suspected child abuse or neglect is believed to rise to the level of criminal activity, and especially in cases of abuse occurring outside of the family. (11) Crimes against children are some of the most...