The Standard of Proof in the Substantiation of Child Abuse and Neglect

• DOI: http://doi.org/10.1111/jels.12149
• Date: 01 June 2017
• Published date: 01 June 2017

The Standard of Proof in the

Substantiation of Child Abuse and Neglect

Nicholas E. Kahn, Josh Gupta-Kagan, and Mary Eschelbach Hansen*

We measure the extent to which requiring a high standard of proof for substantiation of

child abuse or neglect by child protection agencies actually influences the disposition of a

report of abuse or neglect. Using data on nearly 8 million reports from fiscal 2000--2012, we

show that a high standard is associated with lower rates of substantiation and that an

increase in the standard decreases the probability of substantiation by up to 14 percent.

After a change to a high standard, children may be less likely to be placed in foster care,

and children and families are more likely to receive other types of services. Increases in the

standard seem to be driven by perceptions of the costs of Type 1 error---that is,

substantiating a report when no abuse occurred. Indeed, states’ decisions to increase the

standard are strongly correlated with fatalities in foster care and the size of the foster care

system, suggesting that public concern about Type 1 error leading to overly invasive child

protection agency action can spur a shift in the standard of proof.

I. Introduction

We study the extent to which the legal standard of proof influences the outcome of

administrative decisions. Most empirical studies of the influence of the legal standard of

proof have been experiments designed to replicate litigation. Differences in actual

standards across jurisdictions within the United States have seldom been studied, in part

*Address correspondence to Mary Eschelbach Hansen; email: mhansen@american.edu. Kahn is Professorial

Lecturer in the Department of Economics at American University; Gupta-Kagan is Assistant Professor of Law at

South Carolina School of Law; Hansen is Associate Professor of Economics, American University

The analysis here is based on data from the National Child Abuse and Neglect Data System (NCANDS) Child

Files and State-Level/Combined Aggregate Files. These data were provided by the National Data Archive on

Child Abuse and Neglect at Cornell University and have been used with permission. The data were originally col-

lected under the auspices of the Children’s Bureau. Funding was provided by the Children’s Bureau, Administra-

tion on Children, Youth and Families, Administration for Children and Families, U.S. Department of Health and

Human Services. The collector of the original data, the funding agency, NDACAN, Cornell University, and the

agents or employees of these institutions bear no responsibility for the analyses or interpretations presented

here. The information and opinions expressed reflect solely the opinions of the authors. Many thanks to Kerry

DeVooght of Child Trends, Inc. for providing a formatted version and advice for using the data published in the

Child Welfare Policy Database (http://www.childwelfarepolicy.org/). Computing resources provided by the

American University High Performance Computing System, which is funded in part by the National Science

Foundation (BCS-1039497); see www.american.edu/cas/hpc for information on the system and its uses. Thanks

to the editors, anonymous referees, Bob Feinberg, Brad Hansen, Tom Husted, Kara Reynolds, and participants in

the Public Choice Seminar at George Mason University for extremely helpful comments and suggestions. Thanks

to David Kershaw for research assistance. Errors belong to the authors.

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Journal of Empirical Legal Studies

Volume 14, Issue 2, 333–369, June 2017

because changes in the standard of proof are rare. Here, we consider cases of child

abuse and neglect, an area in which states have historically used different standards of

proof and one in which several states have recently changed their standards. The recent

changes have increased the standard of proof required to substantiate allegations of

abuse and neglect. Substantiation is an administrative determination that a parent or

caretaker has abused or neglected a child,

1

and it is distinct from a judicial adjudication

of abuse or neglect that occurs only after a state files a court case to authorize a removal

of a child or some other coercive intervention.

Higher legal standards of proof have lower rates of substantiation. In the past 15

years, the proportion of all reports nationwide that are substantiated has fallen from

about half of valid reports to less than one-quarter. In states that currently have a low

standard, the downward trend slowed after the 2008 economic crisis, but the downward

trend continued in states that currently have a high standard. The high-standard states

include several that switched from a low to a high standard of proof during this period.

In a fixed effects framework utilizing administrative data on 7.9 million reports of

abuse and neglect from federal fiscal years 2000 through 2012, including data on five

states that increased their standard of proof, an increase in the standard decreases the

odds of substantiation by an average of 14 percent. Using state-specific samples and an

inverse-probability weighting estimator, an increase in the standard of proof decreases

the odds of substantiation by 1–5 percent. The effect is concentrated in relatively hard

to prove allegations. Changes in the standard of proof do not reduce the likelihood of

substantiating easier to prove allegations.

Child abuse and neglect are prevalent and costly. During federal fiscal year 2013,

states received reports of alleged abuse or neglect involving approximately 3.9 million

children, and state child protection agencies substantiated these allegations for about

679,000 children (U.S. DHHS 2014). Moreover, much abuse and neglect goes unreport-

ed (Hussey et al. 2005). As many as 10.2 percent of children under age 17 experience

some form of maltreatment (Finkelhor et al. 2009). Child abuse or neglect generates

more than $200,000 in lifetime costs per victim, which adds up to $124 billion or more

for new incidents in a year (Fang et al. 2012). This estimate includes costs within the

child welfare and justice systems, as well as the costs of the adverse health, education,

and labor market outcomes experienced by the child victims (see also Currie & Widom

2010).

Not included in the estimate is the cost of error. Any decision-making system will

make some errors, and the standard of proof serves to skew errors in one direction or

the other. An increase in the standard of proof for substantiation increases protections

for parents and children against a Type 1 error (i.e., finding abuse or neglect when

none occurred) but thereby increases the possibility of Type 2 error (failing to intervene

when abuse or neglect did occur).

1

The Child Abuse Prevention and Treatment Act defines it this way: “Any recent act or failure to act on the part

of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation;

or an act or failure to act which presents an imminent risk of serious harm.” Pub. L. 111-320, § 142.

334 Kahn et al.

To understand the potential cost of errors, it is important to understand the

purpose of the decision by a child protection agency to substantiate an allegation.

Substantiation is generally a prerequisite to pursuing a judicial finding of abuse or

neglect and an order placing a child in foster care. In most states, the substantiation

of abuse or neglect is required before child welfare services can be provided, even if

those services work toward preserving the family and not removal of a child to foster

care. This link between substantiation and services has been criticized, especially

among researchers in social work, because substantiation is a poor predictor of rere-

ports (see especially Kohl et al. 2009). Finally, substantiations lead child protection

agencies to place perpetrators on child abuse and neglect registries, and these regis-

tries are generally searched as a condition of employment in child-care centers and

other jobs that place individuals in close proximity to children or other vulnerable

populations.

When a Type 1 error is made in the substantiation decision, a parent may lose

custody of a child who is not in danger, and the child may be exposed to new risks

while in foster care (Doyle 2007). Families may be pressured to accept services that

they may not want or need. A parent may also face economic harms from placement

on the child protection registry. When a Type 2 error is made, a child may suffer con-

tinued abuse or neglect, which increases the risk of childhood death in a crime or an

accident (Putnam-Hornstein et al. 2013) and may lead to a wide range of physical and

mental health problems that last long into adulthood (Felitti & Anda 2010). A family

that wants or needs services may not receive them. A perpetrator will not be placed on

the registry and thus may pose an ongoing danger to the initial victim and to other

children. Given the significance of both Type 1 and Type 2 errors, understanding the

determinants of the substantiation decision, including the role of the standard of

proof, is critical to understanding how well our public policies protect children and

families.

The data show that an increase in the standard is weakly associated with a

decline in the odds of foster care placement. However, an increase in the standard is

associated with an increase of nearly 30 percent in the provision of other types of serv-

ices for the child and/or the family, including housing services and family preservation

services.

Lastly, there is substantial heterogeneity in the effect of an increase in the stan-

dard across states. We show that the heterogeneity is generally consistent with the legal

history of the changes. In several states, the increase in the standard was just one of

several changes to the child welfare system that happened simultaneously; the indepen-

dent effect of a change in the standard cannot be identified. Given that concern, we

call particular attention to the results in Missouri, where the measured effect is

“cleaner” in that a highly publicized death of a child in foster care led directly to the

change in the standard. Using state-level data that cover more states than our micro-

level data, we test whether fatalities in foster care—events that change the perceived

cost of Type 1 error—predict the changes in the standard of proof. They do: each

additional fatality in care increases the odds of an increase in the standard of proof by

80 percent.

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Standard of Proof in Substantiating Child Abuse and Neglect