Child Abuse and the Law - Juvenile Courts

As early as the mid-seventeenth century in colonial America, adults accused of child abandonment, of excessive physical abuse, and of depriving their children of basic necessities faced criminal trials. In 1899 Cook County, Illinois, established the first juvenile court system, not so much to protect abused and neglected children but mainly to keep the abandoned children and runaways off the streets. Then in 1944 the U.S. Supreme Court held, in Prince v. Massachusetts (321 U.S. 158), that the government has the authority to protect children from child labor. (In this case, a Jehovah's Witness guardian of a nine-year-old girl was found in violation of state child labor law for furnishing the child with periodicals to sell in the streets.)

Today all fifty states have authorized juvenile family courts to intervene in child abuse cases, and all fifty states consider child abuse of any kind to be a felony and a civil crime. A felony could result in a prison term; a loss of a civil suit could result in the payment of a fine or in losing custody of the child. (While many states have distinct and separate juvenile courts, some states try juvenile or family cases in courts of general jurisdiction, where child protection cases are given priority over other cases on the court's docket.)

Government child protective services (CPS) initiates a civil court proceeding (after consultation with CPS lawyers) if it seeks to remove the child from the home, provide in-home protective services, or require the abuser to get treatment. Criminal proceedings are initiated by a government prosecutor if the abuser is to be charged with a crime, such as sexual abuse.

In civil child protection cases, the accused has the right to a closed trial (a hearing with no jury and closed to the public) in which court records are kept confidential, although a few states permit jury trials. In criminal child protection cases, however, the person charged with abuse is entitled to the Sixth Amendment right to an open trial (a jury trial opened to the public), which can be waived only by the defendant.

In 1967 In re Gault (387 U.S.1) substantially changed the nature of juvenile courts. Initially, children were not subject to constitutional due process rights or legal representation, and judges presiding over these courts were given unlimited power to protect children from criminal harm. The U.S. Supreme Court decided In re Gault that children—whether they have committed a crime or are the victims of a crime—are entitled to due process and legal representation. These rights, however, are interpreted differently among the states.

Court-Appointed Special Advocate

In the past, for many abused and neglected children who could not be reunited with their families, foster care became a permanent placement. In the 1970s David W. Soukup, presiding judge of the King County Superior Court in Seattle, Washington, realized that judges did not always have enough information to make the right decision to serve the best interests of the child.

Traditionally the child's advocate in court had been the guardian ad litem (literally, for the lawsuit). In other words, the guardian ad litem is an attorney appointed by the court for the lawsuit being prosecuted. The lawyers, however, usually did not have the time or training to conduct a thorough review of each child's case. Consequently, Judge Soukup recruited and trained community volunteers to serve as the children's long-term guardians ad litem. The role of the court-appointed special advocate (CASA) was born on January 1, 1977, and Seattle's program has since been adopted nationwide.

In 1984 the National CASA Association was formed in Seattle, Washington. Congress passed the Victims of Child Abuse Act of 1990 (Public Law 101-647) to require that a CASA volunteer be provided to every child maltreatment victim who needs such an advocate. More than nine hundred CASA programs, with more than seventy thousand volunteers, have been established in all fifty states and the District of Columbia and the U.S. Virgin Islands (National CASA Association, http://www.nationalcasa.org [accessed November 20, 2004]).

Typically the judge appoints a CASA volunteer, who then reviews all records pertaining to the maltreated child, including CPS reports and medical and school records. The volunteer also meets with the child, parents and family members, social workers, health care providers, school officials, and other people who may know of the child's history. The research compiled by the CASA volunteer helps the child's lawyer in presenting the case. It also helps the court in deciding what is best for the child. Each trained volunteer works with one or two children at a time, enabling the volunteer to research and monitor each case thoroughly.