Earlier this week, we published several accounts describing why Senator Alan Clark’s parents’-rights bill (SB 305) died during the legislative session. My own view is that Arkansas’s current parental-neglect law – which essentially says that parents shouldn’t let their kids do anything inappropriately dangerous – is too broad and too vague (to put it another way: how am I, a reasonable parent, supposed to know what is “inappropriately” dangerous?). Sadly, Clark’s bill – which would have immunized several traditional parenting practices in the eyes of the law (such as, for example, parents letting children stay briefly unaccompanied while in a parked car, walking down a street, or waiting at home) – failed in a House Committee voice vote.
I had not realized the extent of the lobbying against Clark’s bill by several “child welfare advocates” during the session; the advocates had sent out several memos arguing against Clark’s bill to House committee members, who echoed those memos’ arguments in committee. When I read those memos, I found them eyebrow-raising, largely because they were, in many respects, legally and factually incorrect. To be blunt, I was so surprised by the many groundless positions that the memos took that I wanted to interview their authors to ensure that the memos were not a hoax or a practical joke. The chief authors of and advocates for these memos, as I understand it, were Mary Beth Luibel (the Arkansas director of the Court Appointed Special Advocates organization) and Renia Robinette (the director of the Arkansas Attorney Ad Litem program). In their defense, they were kind enough to take the time to sit down with me in order to explain their perspective; furthermore, they were very polite, and they clearly believe that they do the work they do in order to protect the interests of children.
What follows is a brief summary of the points their memos made, buttressed by quotes from my interview with them, followed by (when appropriate) a factual and legal rebuttal.
1.) According to the “child welfare advocates,” it is unprecedented to provide a safe harbor in the law by defining some actions that are not legally punishable.
As described earlier, Clark’s bill placed several limits on the scope of how parental neglect could be interpreted. For instance – as long as the child in question had the capacity to avoid immediate danger and a significant risk of harm – parents could not be found to be neglectful if they let their kids walk to and from school, play outside, or stay for less than 15 minutes in a car that was not dangerously hot or cold. (Another way to put it is that the proposed law carved out several exemptions to parental neglect — saying “Whatever you think parental neglect is, it isn’t that.”) But the “child welfare advocates” argued that carving out exceptions to the parental neglect law was dangerous and unprecedented. Their memo advised legislators that “our statutory construct in the criminal code is to define criminal acts, not identify behaviors that are not criminal” – and that “our statutory construct in the child maltreatment code is to define abuse and neglect, not identify behaviors that are not abuse and neglect.” When I asked Renia Robinette to expand on this, she explained:
some of our concerns is what we do in the Juvenile Code, and I believe what’s been in the Criminal Code, as well, is we talk about and define what abuse and neglect are. It’s very difficult to define or identify everything that is not abuse and neglect. And I think when I had a conversation with Senator Clark very early on, my comment to him was, “I can name 1,000 things that are not abuse or neglect.” And so, we don’t want a Code that becomes so cumbersome that it becomes difficult for attorneys and for advocates to kind of go back and forth to figure out, “Okay, this is abuse, this is not.” … We certainly don’t have anything else in the Juvenile Code that says, these things are not abuse or neglect.
After she told me this, I produced a copy of the Child Maltreatment Act and showed her parts of the statute which identify some behaviors as “abandonment”; immediately following that, I showed her the two behaviors listed which are identified as not being “abandonment.” I then showed her the portions of the Child Maltreatment Act that describe behaviors that are “abuse”; immediately following that, I showed her the list of three behaviors which are identified as not being “abuse.” (This kind of structure – a particular exception to a general rule – is extremely common in the law; structurally, it is no different from saying “I don’t want you drinking any alcohol, but of course I’ll make an exception for Holy Communion.” The bottom line is that to say that SB 305 would “begin defining” actions that are not child maltreatment misrepresents the nature of the child maltreatment statute, which already contains extensive examples of behavior that is (and is not) child abuse.) She conceded: “yes, there are a couple of things that have been identified that are not abuse.” I pressed her on this, because the set of exceptions seemed to me to completely undercut what she had told legislators; she responded “I believe there is some very limiting language in a couple of sections of the code, yes.” She emphasized, however:
But, yes, I will concede that there are some sections here that have very limited circumstances, but let’s go back to the abandonment piece. These are very specific, and I think they’re much more narrowly tailored than what I see in some of the examples you’ve given, because when you talk, ‘abandonment does not include an act of remission by a parent toward a married minor’, that’s very specific language, so it’s very difficult to argue a lot of leeway on that issue, as well as with the adoption issue. And so, I think that’s what some of my pause is, is that these are very specific, and I think that the language that’s presented in Senate Bill 305 seems to have a lot of loopholes that I can think of and argue, versus, this language here, it’s tighter.
This doesn’t really speak to the main problem that I asked her about, however. When the “child welfare advocates” advised legislators that “our statutory construct in the criminal code is to define criminal acts, not identify behaviors that are not criminal” – and that “our statutory construct in the child maltreatment code is to define abuse and neglect, not identify behaviors that are not abuse and neglect,” they were simply wrong. They misrepresented the way that the law works to legislators.
2.) According to the “child welfare advocates,” a statute that defines some behaviors as not being neglect necessarily means that every behavior not described in the statute is neglect.
That is an overly theoretical summary of the “child welfare advocates’” mistake, so let me try to make it clearer what they argued. One of SB 305’s provisions was that (to simplify), if you leave your kid in the car for less than 15 minutes – and the kid generally has the capacity to take care of him- or herself – this ain’t neglect. The “child welfare” advocates really didn’t like this, explaining to legislators in their memo that this proposal “indicates that if it is more than 15 minutes, then it is neglect.” They made several other similar criticisms: for instance, they argued that SB 305’s safe harbor for leaving a self-sufficient kid at home for a while (as long as you’ve also provided a working phone and your contact number) “seems to indicate that if the parent does not make provisions to contact [the parent] … [then] it might be neglect – what if they made provisions for child to contact another responsible relative or adult?”
The “child welfare” advocates make the mistake of assuming that only prohibitory language can define a legal wrong. That’s not so. Permissive language can define a safe harbor for conduct, and departure from the safe harbor does not demonstrate that the conduct is wrong. Thus for example, if SB 305 allows a self-sufficient child to be left in a car for 15 minutes, the advocates assert that any time more than 15 minutes is neglect. That is just incorrect. The bill does no more and no less than state what cannot be neglect. Here is another example: if SB 305 allows a child to be left at home for a short time with a working phone and parent’s contact number, the advocates suggest that anytime a child is left without a contact number is neglect. Again, that is not what the bill says. The bill simply provides a safe harbor by stating a child left at home for a short time with a working phone and parent’s contact number cannot be neglect. To argue that whatever is not expressly permitted is therefore prohibited is to make a basic mistake of statutory interpretation.
When I interviewed Renia Robinette about what appeared to be a remedial mistake of law, she qualified her position and (as I understood her) junked what she had told policymakers in her memo. As I understood what she told me, she wasn’t complaining about how the courts would interpret the law, she was complaining about how individual attorneys would interpret the law:
I had some real, specific concerns about the way that the language was drafted. For example, in the bill, as drafted, there was a section that talked about, before or after school, a child could be left alone, as long as the parent returned that day. Well, there would be attorneys who would argue that if the child was left alone during the school day, that that didn’t fall within the statute, and maybe that is neglect. And so, you don’t want to open those doors.
When I pointed out that no statute in the world would solve the problem of the occasional incompetent attorney – to paraphrase, the incompetent attorney we will always have with us – she responded:
I have practiced with some attorneys that those are the arguments they would make in the courtroom, absolutely … And then, that becomes confusing. It becomes more difficult for opposing counsel to make the argument that, “Well, Your Honor, the legislative intent was not to open this door that 16 minutes is abuse,” but you would have other people, “Well, no, the Legislature passed this, and so they said 15 minutes is the threshold.” And I know attorneys that, we would spend two hours in court arguing over that 15 minutes.
But, again, it doesn’t matter what crazy position an attorney will take in court. Attorneys will take crazy positions regardless of the code on the books. What matters is what the law is. (Furthermore, these critics of SB 305 seem not to have understood that the inclusion of safe harbors reduces the law’s ambiguity; to underscore what has already been said, the status quo — which penalizes “inappropriate” behavior – is about as ambiguous as any statute could be.) In sum, when the “child welfare advocates” explained that, under Senator Clark’s proposal, his bill “indicates” that someone who goes outside the safe harbor that his bill defines would therefore have neglected a child, this was simply wrong. This misrepresented the way that the law works to legislators.
(It’s also worth noting that the arguments that Robinette provided contradict themselves. Again, here is what she argued: she said she was concerned, for instance, about the provision that a parent could leave a child at home briefly as long as the child could use a phone to call a parent; her memo expressed the concern that “it might be neglect” if the child only had the phone number of another responsible adult. This is an argument in favor of a set of broader and more expansive safe harbors. She also argued, however — see Part I above — that the safe-harbor exceptions that Clark’s bill contained should have been more “narrowly tailored” – that their language was insufficiently “tight” – apparently because she felt that Clark’s proposed safe harbors would just be too difficult for government workers to understand. This is an argument in favor of a set of narrower and less inclusive safe harbors. I do not see how Robinette can seriously make both of these arguments.
3.) According to the “child welfare experts,” making triage more efficient harms children.
One other aspect of Clark’s bill is that it permitted the state Department of Human Services to reform its triage procedures. To explain this, it may be helpful to explain what triage is.
You may have encountered triage when you have visited a hospital emergency room. People who visit emergency rooms with minor ailments may sometimes feel that the ER procedures are unfair; for instance, I remember being irked when, as a teenager, I visited an emergency room with an earache one weekend and I saw that other people who came after me were getting care before I did. The procedure seemed much more fair to me later in life, when I brought my extremely pregnant wife into the ER; the rate of her contractions indicated that she was about to give birth, and she went straight to the head of the line. That is the way triage works; people with urgent needs get seen first.
Clark’s bill would have changed current law. According to current law, the Department of Human Services can develop triage procedures for handling abuse reports – but only by referring all reports of suspected child abuse that do not amount to a risk of imminent harm to community organizations or other services. Clark’s bill, in contrast, would have allowed triage procedures to include the closure of an investigation of child abuse if it did not meet the elements of child abuse.
I find it a little mystifying why the “child welfare experts” opposed such a triage reform. How does helping people close child-abuse cases for kids not at risk of child abuse harm people? Presumably, if there’s a shortage of resources to take care of kids, you’d want those resources applied where they will help people most?
When I spoke to Robinette about this, she replied:
Well, this comes from working in this field for quite a while, at this point. We still have a lot of children who come in contact with the Department of Human Services, where they are supposed to do an investigation, and they are not doing adequate investigations, and the child ends up murdered by the parent. And we still have problems with the Department not having enough resources to meet the obligations that they have under current law and policy, and so, we have concerns when they are so overworked, at this point. We have areas of the state where the number of investigations, they have 150 investigations for an investigator, and as they’re triaging and they’re just closing out cases without doing a thorough investigation, you can leave kids in risk, you can leave kids in harm’s way, and I think that we have to have oversight over those investigations, which, I think we’re making a move in that direction.
Given the situation that Robinette describes, I remain mystified about how blocking triage reforms that would let investigators pay attention to the kids who most need it is really helpful. (In Arkansas there are regularly uninvestigated backlogs of scores or hundreds of instances of suspected child maltreatment.) Given the backlog that investigators face, I think the triage reforms that Clark proposed are crucial to the welfare of kids – and that people who oppose reforms that let the neediest cases be seen first are the ones who are actually endangering the welfare of children – because the reactionary posture of the “child welfare advocates” ensures that some needy cases are likely never to receive any attention at all.
Unfortunately, I don’t have the time (or the taste for cruelty) to fully itemize all of the mistakes that the “child welfare advocates” made in their advocacy against SB 305. I will say that they give every appearance that they really believe in what they’re doing and that they believe that they’re on the side of the angels. I am sure they don’t like being described as opponents of parents’ rights – but, in practice, that is what they are. They repeatedly explained to me that they believe that, unless and until kids are being harmed, that parents have a fundamental right to raise their kids and make familial choices about upbringing. But they didn’t really seem to understand how SB 305 would work – or that they had misadvised legislators to whom they were repeatedly sending critiques of the bill. Some people have suggested to me that what really drove the “child welfare advocates’” advocacy here is that they believe that the child maltreatment statute is something like their own private property, and they do not like other people messing with it, but I think that is probably wrong. I think the bottom line is that even the nicest and most public-spirited person in the world can still sometimes be wrong about important questions of public policy.