Failure to protect is a form of child neglect. Historically it has been difficult to define, and many times it is not even included in state statutes on child maltreatment. It may appear as some form of child endangerment in statutes, and inconsistencies exist across the United States. As Randy Magen has suggested, it implies that the neglecting parent has failed to protect a child when it was possible to do so. While this may sometimes be the case, the term is very controversial when applied to parents who are also victims themselves, such as in the case of battered women. As viewed by advocates of domestic violence, this term is a key charge by which child protective services find mothers who are victims of domestic violence neglectful under state law, by failing to protect or endangering their children through exposure to domestic violence against them. The consequence of such a finding can lead to children being removed from the home and placed in foster care.
Effective Intervention in Domestic Violence and Child Maltreatment Cases: Guidelines for Policy and Practice, a document published by the National Council of Juvenile and Family Court Judges, and commonly called the Greenbook, states, A major issue of contention between child protection workers and domestic violence advocates is the perceived blaming of mothers for “failing to protect” their children from the violence a male perpetrator commits against adults and children in the family. Finding nonabusive mothers responsible for the failure to protect in cases of domestic violence may result from the system’s inability to hold the actual perpetrator of violence accountable. (p. 66)
There is evidence that this rationale for removal of children has been used by public child protective service agencies. In a federal court case in New York City, Judge Jack B. Weinstein found that the children of Sharwline Nicholson and others were removed from the home solely on the grounds that the mothers were victims of domestic violence and that such grounds were violations of the Constitution. In his opinion, the judge stated: “the consistent policy applied by ACS [the New York City child welfare agency] is to remove children of abused mothers in violation of their rights solely because the mother has been abused. No legislatively appropriate policy, no compelling state interest, justifies these removals.” The New York City Department was ordered to cease this practice when no other form of neglect or abuse was found.
A major problem in determining how prevalent this practice is around the country is that the term failure to protect is not defined in most state statutes as a form of neglect, nor is it a term against which states collect information and report a finding of neglect. It is not known whether the New York City experience is typical or not, in which jurisdictions it may be regularly used, and how many children are placed in foster care for this reason alone.
State child abuse and neglect statutes typically contain nonspecific language under which conditions children exposed to domestic violence could be removed, providing child protective service agencies with considerable discretion. For example, the Ohio statute (Section 2151.03 Ohio Revised Code) defines, in part, a child as neglected “who lacks proper parental care because of the faults or habits of the child’s parents, guardian, or custodian.” In another example, the Michigan statute (MCL 722.622) defines one form of neglect as “placing a child at unreasonable risk to the child’s health or welfare by failure to intervene to eliminate that risk when that person is able to do so and has, or should have, knowledge of the risk.” These examples of language, which are typical of many state statutes, do not use the term failure to protect per se but are broad enough to justify such action if agencies permit findings on these grounds. It should also be noted that state reports to the federal government of the number of cases of abuse and neglect do not include a category of neglect that indicates the prevalence of findings of failure to protect due to domestic violence.
The National Council of Juvenile and Family Court Judges’ Greenbook provides a policy recommendation for practice that would be an important step toward not blaming victims of domestic violence. The recommendation addresses how petitions presented to the court should be drafted to make clear the actual source of risk to a child and how a battered mother may actually not be failing to protect. “The juvenile court should insist that a petition alleging ‘failure to protect’ on the part of the battered mother also allege efforts that the mother made to protect the children; the ways in which the mother failed to protect, and the reasons why; and should identify any perpetrator who may have prevented or impeded her from carrying out her parental duties” (p. 109).