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Child Law Penalizes Moms for Abusive Partners

Why was a mother charged with failure to protect her children when she had moved them away from her abusive partner and into a shelter?

This article was published by Capital & Main.

Ingrid Archie thought she was doing everything right to protect her children. She got a restraining order against her abusive partner and moved into a domestic violence shelter with her kids.

Then Archie got arrested for child endangerment. It had been only a month since she’d left the relationship and she was struggling to get back on her feet. She was stressed out and trying to run errands with her two youngest daughters. One of the kids had fallen asleep in the car, so Archie cracked open the windows and ran inside a store with just her baby. She returned to find Los Angeles police officers with her child in the car.

Archie’s daughters were taken away, including her oldest, who wasn’t with her at the time of her arrest. At the police station, Archie told a social worker about the steps she’d taken to separate from her abuser and find safety for herself and the girls. She explained that she had postpartum depression and was having trouble finding child care and a steady job. It made no difference; Los Angeles County’s Department of Children and Family Services (DCFS) charged Archie with “failure to protect” her children from domestic violence, on top of child endangerment.

“I thought you get a ‘failure to protect’ charge when you’re still in the relationship, not when you go to a place to protect you from the relationship,” Archie said.

Archie’s experience is an extreme example of how California’s failure-to-protect law gives social workers and courts incredible leeway to penalize domestic violence victims with children whether they do or do not take action to stop their partners’ abuse. The law’s impacts on the lives of victims and their kids have remained obscured behind the complexity of these cases.

Archie is far from the only domestic violence survivor to be held responsible for an abuser’s actions by California’s complicated web of child welfare and justice systems. Some parents who experience abuse at home are being dragged through the courts, losing custody of their children and being incarcerated—all for not stopping their partners’ abuse.

How many domestic violence victims are being charged with “failure to protect”? What are the long-term effects for them and their children? Remarkably, no California institution queried for this story seems to know. More than two-dozen domestic violence advocates and service providers who work with survivors and their children were interviewed for this story, as well as social workers and court officials tasked with handling these cases in Los Angeles and across the state of California. They all describe how a vaguely worded law meant to keep kids safe is casting a wide net that’s capturing abuse victims and holding them accountable for their batterers’ behavior.

The institutions handling these complex and sensitive cases—from child welfare agencies to the courts—have been aware of the issue for more than a decade, but little has been done to track or address it. Oftentimes, misunderstandings of domestic violence dynamics translate into the blaming of abused parents and prioritization of the immediate safety of the child, without consideration for the long-term welfare of the whole family. The law’s cruelest irony is that the threat of being punished actually stops many victims from seeking help in the first place.

“A Very Wide Net”

Archie had followed the playbook for seeking safety from an abuser by getting a restraining order and moving to a shelter, actions that are often recommended or required by social services and courts in California. “I did all of those things and I still got a ‘failure to protect’ charge. So what does that tell you?” Archie asks.

California’s failure-to-protect statute—Welfare and Institutions Code 300(b)—broadly holds parents responsible for “willful or negligent failure” to safeguard their children from harm or the risk of harm. The language of the law is very imprecise, and unlike federal law, it makes no mention of how domestic violence fits in. This gives counties across the state lots of leeway for interpreting and applying it. In practice it becomes even more complicated because domestic violence cases involving children can straddle a multilayered system of child welfare, public health, dependency and family courts, and criminal justice institutions.

“If you don’t see the bigger picture, you blame the victim,” said Mary Alvin Nichols, a retired DCFS social worker who focused on best practices for handling domestic violence cases during her nearly three decades on the job.

Alvin Nichols explained that the state and, as a result, most California counties, interpret the law to mean that if a battered parent, usually a mother, doesn’t leave the abusive relationship, they’re “unwilling or unable” to protect their child. This “standard approach” doesn’t recognize the many reasons why a victim might be unable to leave and thus makes it “very tricky” for even well-trained social workers to convince their supervisors, administrators and the courts of the nuances in domestic violence situations.

Oftentimes, victims stay in the relationship as a way to protect their kids and maintain stability in housing and schooling, according to service providers. For many, leaving can be the most dangerous time in the relationship, and demands by social service agencies and courts to sever ties or file a restraining order can make some victims less safe.

Although California’s institutions are aware of these issues, no exceptions have been carved into the law. At least two dozen states dole out harsher sentences than California under their own failure-to-protect laws, according to a BuzzFeed News investigation. However, the top federal agency charged with child protection, the Department of Health & Human Services’ Child Bureau, has advised that failure-to-protect “should generally be avoided” in domestic violence cases because it blames survivors, misunderstands their protective efforts and can prevent them “from accepting help because they fear losing their children and being labeled a neglectful parent.”

Poor Training & Fear of the Worst

It took nearly a year for Ingrid Archie to get her daughters back from foster care. There are few resources available to parents who lose custody of their kids, especially if they’re low income or formerly incarcerated, as Archie was at the time. She had grown up around domestic violence and ended up in the foster care system herself. After falling in with the wrong crowd, she was incarcerated several times.

domestic abuse

Ingrid Archie with A New Way of Life founder Susan Burton, right. (Photo: Joanne Kim)

But, Archie was determined to fight for her kids. She diligently took parenting classes while incarcerated for eight months, and upon her release, sought help from the Los Angeles-based nonprofit A New Way of Life Reentry Project. Archie went through therapy and completed all of DCFS’s requirements. A New Way of Life helped her parse through the legal jargon and understand her rights. But getting her children back “was a complete uphill battle.”

DCFS never dropped the charges. In fact, the agency slapped Archie with another failure-to-protect charge, this time because her oldest daughter had been sexually abused in foster care while Archie was incarcerated. After a long, winding path, Archie was finally reunited with all three of her daughters. The trauma they had undergone still affects their lives. “When your kids come back into your home after being separated, those are not the same kids,” she said.

Many of the problems with how domestic violence cases involving children are handled trace back to inadequate training of social workers and increasing pressure on them to avoid worst-case scenarios.

Gail Pincus, a licensed clinical social worker who has directed the Domestic Abuse Center in Los Angeles since 1989, offers domestic violence training to social workers and judges. Many of them are resistant, said Pincus, who added that institutions like DCFS are currently “set up for victims to hate them and fear them,” because when social workers pressure abuse victims, “all they hear is their abuser in their ear.”

Most child welfare social workers in California receive little training on domestic violence. More comprehensive training models have been available for decades, including the Greenbook Initiative, which showed promise in San Francisco and Santa Clara counties. But because these models are only suggested and not mandated, most counties haven’t adopted them.

A majority of social workers simply focus on establishing immediate safety for children, often by preemptively removing them to foster care. In Los Angeles County in recent years, concerns over protecting children have come to a head after several high-profile murders of children at the hands of abusive parents generated public scrutiny of DCFS’s practices, and encouraged a more reactive response.

“Everybody wants to protect children,” said Debra Suh, the executive director of the Center for the Pacific Asian Family, which has provided domestic violence services in Los Angeles to Asian and Pacific Islander women and their families for more than 40 years. “There’s this incentive to detain more and more children, and not look at what we’re doing with them once we detain them,” she said, noting that there have been no long-term studies of what happens to children relegated into the system in this way, particularly after they age out of foster care.

Many of Suh’s clients come to her after DCFS has already removed their children. “That makes our work much harder because now instead of starting from zero, we’re starting from a negative point. We’re having to work with the survivor to build trust, to try to get the children back,” she said.

Failure-to-Protect is “Not a Vehicle for Truth Telling”

While it’s unclear how many domestic violence survivors are actually being charged with failure-to-protect, and having their children removed as a result, advocates argue that the law’s ramifications are widespread because of its chilling effect, especially in low-income and immigrant communities, and for people of color.

Fear of criminalization and family separation discourages many abuse victims and their children from seeking help or reporting what’s happening in their homes, said Jacquie Marroquin, the programs director for the California Partnership to End Domestic Violence, the state’s largest coalition of advocacy groups on the issue.

“It’s not a vehicle for truth-telling,” Marroquin explained, especially for families that have had run-ins with the criminal justice system or fear immigration consequences. “They know these threats are real. It does not give folks the opportunity to be honest.”

Minyong Lee, a staff attorney with Neighborhood Legal Services of Los Angeles County who focuses on dependency and family cases, said that her clients rarely have their children removed. But, she added, “The threat alone is enough to traumatize our clients not to seek help.”

Advocates and providers also told Capital & Main that in some cases abusers actually leverage the law as another control tactic, threatening to report their partners and have the children removed from them if they try to leave.

Further complicating the situation, said Debra Suh, is the fact that domestic violence service providers like her are legally required to report cases to child welfare services. Suh works mainly with “hard-to-reach immigrant communities” and believes that mandated reporting requirements like this may be preventing her clients from coming forward with their stories.

As a result, traditionally marginalized groups are disproportionately affected. Women, particularly women of color, bear the brunt, whether it means losing custody of their children or ending up incarcerated for being unable to protect them.

“Why are mothers held culpable to this superhero degree?” asks Alisa Bierria, co-founder of Survived & Punished, a group that advocates on behalf of incarcerated domestic and sexual violence survivors.

Bierria argues that the criminalization of victims is part of a “broader cultural phenomenon.” She believes there is societal “resentment toward survivors” because they’re perceived as allowing domestic violence to continue. And “that kind of blame-ability translates really well to a carceral system dead-set on incarcerating as many people as possible for as long as possible.”

“The speed at which change happens is really slow”

Ingrid Archie now works with A New Way of Life teaching other formerly incarcerated women how to navigate the child welfare system and regain custody of their kids. The cohort brainstorms ideas for advocating for change and teaches parents about their rights. DCFS is meant to provide services to parents seeking housing, jobs and parenting classes. But Archie said that “laziness” often stops many social workers from following through. “As a social worker, if you’re failing to provide services, you’re not held accountable. But I’m held accountable for failing to protect my kids. That’s a huge gap,” she said.

A culture change and tweaks to the law will be needed moving forward to prevent failure-to-protect from being misused, particularly in domestic violence cases, say advocates and service providers. But it’s difficult to do so without a clear view of who is affected and how. None of the relevant state and county agencies contacted for this story are currently collecting or analyzing data on this issue.

The problem is hard to track and address because social services are largely carried out at the county level, which can complicate statewide solutions, said Jessica Merrill, the communications manager for the California Partnership to End Domestic Violence. In 2015, the advocacy group attempted to partner with the California Department of Social Services to compile comprehensive data from child welfare agencies and dependency courts, but because there wasn’t a straightforward way to tackle the issue at the state level, the project never moved forward. Social service agencies frequently charge parents with failure-to-protect in a wide range of circumstances, but don’t distinguish among them when compiling data; this makes it nearly impossible to identify domestic violence-related cases.

Colby Lenz, an advocate and organizer with Survived & Punished and the California Coalition for Women Prisoners, also pointed out that the failure-to-protect statute is just one of many laws and prosecutorial theories with similar effects. Abuse victims have also been charged under aiding and abetting murder laws, for example. Lenz said, “If and when good quantitative research happens, it’ll have to be this kind of complex culling of cases.”

Capital & Main learned of several early efforts in Los Angeles County to bring together advocates, providers and officials to finally address failure-to-protect, but proposals have not yet been publicly announced. Most participants are considering writing exceptions into the law, boosting collaboration between agencies and providers, funding and mandating further research and improving required training for social workers, attorneys and judges. For about a decade, Los Angeles has been contemplating implementing a model known as the Guide to Effective Response to Domestic Abuse, but it has been stalled by bureaucratic barriers pending protocol and training. In recent years, some DCFS employees have pushed for better approaches to domestic violence, but with frequent leadership changes, the agency hasn’t maintained a consistent system.

“The discussions are there, and certainly the need is there,” said service provider Lee. “But the speed at which change happens is really slow.”

When it comes to legislative fixes, California state Senator Susan Rubio, who is herself a domestic violence survivor, told Capital & Main in an emailed statement that she “will be exploring ways to rectify this through legislation over the interim.” Rubio recently championed legislation to proclaim October Domestic Violence Awareness Month and to extend the statute of limitations for domestic violence cases.

“The system is broken and designed to protect the abusers. It’s outrageous,” said Rubio. “Victims are punished for defending themselves and their children and punished when they don’t.”

For Archie, the work continues. As someone who has been impacted herself, she knows full well that “there is not a lot of support that people can readily access.” But she hopes that with advocacy and increased accountability, social service and justice institutions can start, she said, to “provide more resources to families that are threatened with removal as opposed to looking for ways to break the families apart.”

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