Victim blaming: failure to protect laws as a legislative attack on mothers

• Author: Amaris Mae Trozzo
• Position: Georgetown University Law Center, J.D., 2023
• Pages: 79-112

recommendations as to how the interests of the state, the mother, and the

child can all be secured.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

ROADMAP TO SUBSTANTIVE DUE PROCESS VIOLATIONS UNDER FAILURE TO

PROTECT STATUTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

I. THE PURPOSE AND CURRENT STATUS OF FAILURE TO PROTECT LAWS IN

THE UNITED STATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

A. BACKGROUND ON STATUTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

1. Negligence Statutes Intended to Mitigate Traumatic

Effects on Children. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

2. The Evolution of Negligence Statutes Designed to

Mitigate Harm to Children . . . . . . . . . . . . . . . . . . . . . . . . 86

3. A Shift in Failure to Protect Laws: An In-Depth Look at

Nicholson v. Scoppetta . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

B. THE CURRENT LANDSCAPE OF FAILURE TO PROTECT LAWS . . . . . . . 91

C. THE APPLICATION OF CURRENT FAILURE TO PROTECT STATUTES

AGAINST MOTHERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

II. HOW A SYSTEM INTENDED TO PROTECT MOTHERS IS USED AGAINST

THEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

A. REPRODUCTIVE JUSTICE FRAMEWORK . . . . . . . . . . . . . . . . . . . . . . 94

B. CASE STUDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

1. In re C.W. (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

2. Johnson v. State (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . 97

C. ANALYSIS OF GENDER OPPRESSION IN THE COURTS . . . . . . . . . . . . 98

III. THE ARGUMENT FOR APPLYING STRICT SCRUTINY REVIEW WHERE

REMOVAL OR TERMINATION OF PARENTAL RIGHTS IS AT RISK . . . . . . . . . 101

A. STRICT SCRUTINY AND THE FOURTEENTH AMENDMENT . . . . . . . . . . 101

B. SUPREME COURT PRECEDENT ON PARENTAL RIGHTS . . . . . . . . . . . . 101

1. Meyer v. Nebraska (1923). . . . . . . . . . . . . . . . . . . . . . . . . 102

2. Troxel v. Granville (2000) . . . . . . . . . . . . . . . . . . . . . . . . 102

3. Santosky v. Kramer (1982) . . . . . . . . . . . . . . . . . . . . . . . . 103

C. APPLYING STRICT SCRUTINY TO FAILURE TO PROTECT STATUTES . . . 104

1. Establishing That a State Has a Compelling Interest to

Secure the Safety of a Child . . . . . . . . . . . . . . . . . . . . . . . 104

2. Child Removal Is Not a Narrowly Tailored Means to

Advance the State’s Compelling Interest. . . . . . . . . . . . . . 105

a. A Complete Review of the Child’s Interest to Be

Secured by the State. . . . . . . . . . . . . . . . . . . . . . . . . . 105

b. Review of the Non-Abusive Parent’s Experience with

Trauma and Ability to Provide for the Child . . . . . . . 106

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i. Evidence of Abuse in Support of a Mother’s

Claim to Parent. . . . . . . . . . . . . . . . . . . . . . . . . . 106

ii. Courts Should Acknowledge the Range of

Reasonable Actions a Mother Can Take to

Protect Her Children. . . . . . . . . . . . . . . . . . . . . . 107

IV. WAYS TO ENSURE DUE PROCESS BEFORE REMOVAL OR TERMINATION OF

PARENTAL RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

A. SENTENCE REFORM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

B. REHABILITATION AND COUNSELING. . . . . . . . . . . . . . . . . . . . . . . . 110

C. SAFE HARBOR PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

INTRODUCTION

In February of 2019, Marion Phillips received a copy of the petition to termi-

nate her rights as a parent—not because she had injured her children, but for

“exposing them to unapproved males” under Florida’s failure to protect law.

1

Specifically, Child Protective Services was concerned about the men Marion let

into her life and her children’s lives, finding that her ex-partner had a history of

drug use and of beating Marion.

2

Marion’s story is not only that of a parent in an

abusive relationship, but a story of a court selectively using evidence of a parent’s

own trauma to justify deeming her unfit to parent.

3

Marion had experienced abu-

sive relationships before: her longtime partner Jim Cullen had a record of drug

use and violent behavior, her mother whipped her with switches and beat her with

extension cords, and her brother assaulted her.

4

However, Marion was never

aggressive with her children; she escaped multiple abusive households, and even-

tually rented out an apartment for her family and worked a steady job at the

Family Dollar.

5

Despite Marion’s work to improve her family’s circumstances,

the state removed Marion’s children to foster homes across the county while she

began the lengthy legal process to prove her right to parent.

6

In order to prove to

the court that she was a capable and loving mother, Marion spent $200 per month

traveling to court dates and visiting her four children, who were spread out over

three counties by the foster system’s placement program.

7

1. Daphne Chen, Her Boyfriend Spanked Her Child. For Five Years, She’s Been Paying the Price,

USA TODAY (Dec. 16, 2020, 9:04 PM), https://www.usatoday.com/in-depth/news/2020/12/16/florida-

mother-fought-kids-couldnt-please-child-welfare-execs/3810041001/.

2. Id.

3. Id.

4. Id.

5. Id.

6. Id.

7. Id.

2021] VICTIM BLAMING 81

The court used the challenges Marion faced, some of which were created by

the state’s intervention, as evidence of her inability to parent. She worked forty-

hour weeks and was late to some child visits, which the court saw as inattention

and further neglect.

8

She fell behind on rent because of the costly court fees, and

this was seen as evidence of her poor financial management.

9

After four days of

hearings, the court determined that, in the eyes of the law, Marion was no longer

a mother—all because she had been in an abusive relationship. Despite the

court’s declaration, Marion’s daughters often steal moments to text her that they

love her and to tell her that to them she will always be their mother.

10

Marion has

since filed an appeal of the termination of her parental rights and is awaiting

results, with court proceedings delayed by the pandemic.

11

Unfortunately, failure

to protect laws, such as the Florida law that led to the termination of Marion’s pa-

rental rights, operate across the nation, pitting abuse survivors against their chil-

dren and against the state.

2019 also marked the end of Tondalao Hall’s fifteen-year prison sentence in

Oklahoma for failing to protect her children from her partner’s abuse.

12

Like

Marion, Tondalao never hit her children or endangered them directly. She was

the sole breadwinner for her family, working to provide for her children and put-

ting money aside for a future apartment away from her abusive partner, Robert

Braxton.

13

A frequent target of abuse, Tondalao placed herself in Robert’s war-

path to protect her children from his violence. However, her efforts were limited,

blinded in part by her own struggle with Robert’s rage.

14

Eventually, a hospital

visit revealed that Braxton “had been hitting her children,” bruising her son’s leg

while she was at work, and the hospital staff called Child Protective Services

(CPS).

15

Braxton pled guilty to child abuse, received a ten-year-suspended sen-

tence, and served two years before being released on probation.

16

Meanwhile,

8. Id.

9. Id.

10. Id.

11. Id.

12. Stephanie K. Baer, A Battered Woman Who Was Imprisoned for 15 Years for Failing to Protect

Her Kids from Abuse Has Been Freed, BUZZFEED (Nov. 8, 2019, 7:21 PM), https://www.buzzfeednews.

com/article/skbaer/tondalo-hall-abuse-release-prison-oklahoma.

13. Sharyn Alfonsi, Failure to Protect: How an Oklahoman Child Abuse Law Treats Women

Differently Than Men, CBS (June 7, 2020), https://www.cbsnews.com/news/failure-to-protect-

oklahoma-child-abuse-law-60-minutes-2020-06-07/.

14. Reis Thebault, She Went to Prison Over Her Boyfriend’s Child Abuse. Thirteen Years After He

Got Out, She’s Free, WASH. POST (Nov. 8, 2019), https://www.washingtonpost.com/nation/2019/11/08/

she-went-prison-over-her-boyfriends-child-abuse-thirteen-years-after-he-got-out-shes-free/; see also

Nicole Chavez, Her Boyfriend Admitted Child Abuse but Didn’t Go to Prison. She Spent 15 Years in

Prison for Not Reporting Him, CNN (Nov. 8, 2019), https://www.cnn.com/2019/11/08/us/tondalao-

hall-sentence-commuted-trnd/index.html; Alfonsi, supra note 13.

15. Transcript of Jury Trial Proceedings at 8–9, Oklahoma v. Hall, No. 2007-6403 (Dist. Ct. Okla.

2007) [hereinafter Testimony of Ms. Hall]; Aimee Ortiz, Mother Is Freed After 15 Years in Prison for

Father’s Abuse, N.Y. TIMES (Nov. 8, 2019), https://www.nytimes.com/2019/11/08/us/tondalao-hall-

oklahoma-commutation.html.

16. Ortiz, supra note 15.

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