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Domestic Violence and Child Welfare: How Can Judges Make “Reasonable Efforts” Findings?

Judge Rosa Hon. Janice M. Rosa, Supervising Judge of Family Courts, Eighth Judicial District, NY

 Summary: A valuable resource for judges making reasonable efforts findings is the publication Reasonable Efforts Checklist for Dependency Cases Involving Cases of Domestic Violence, which provides bench card inquiries to help judges determine whether there is co-occurring domestic violence.

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Most judges would agree that the presenting reason why a family becomes part of our dependency docket is often not the only problem challenging the family. Dependency cases often come to us with co-occurring issues; for example, substance abuse and mental health, lack of housing and poverty. It is also not uncommon that domestic violence exists, lurking beneath the surface and often difficult to discover. Experienced caseworkers report domestic violence in one-third to one-half of their cases.[1] Yet in many cases, urgent intervention means that screening does not occur and families are not given an opportunity to report domestic violence. Even assuming agency inquiries are made, families may never have disclosed domestic violence to anyone and are not inclined to trust agency workers with this information.

Research supports what we know instinctively from our experiences on the bench—that there is a high correlation between child abuse and domestic violence. Studies estimate that 30 – 60% of families dealing with child abuse also have domestic violence present, and vice versa.[2] Child sexual abuse and incest are also not uncommon in homes with domestic violence.[3] The child abuse incidents may cause the dependency filing, but the agency may not have asked questions that would reveal co-occurring issues.

Each child experiences the chaos of an abusive or neglectful home differently, but there are a number of problems common to children from homes where there is domestic violence. These children may:

  • Become the target of the abuse
  • Be inadvertently injured during a domestic violence episode between adults
  • Be audio/visual, emotional or psychological witnesses to violence

Research is replete with the emotional, cognitive and behavioral issues that children exposed to domestic violence may experience.[4]

One way for judges to ensure the safety of child and adult victims is through reasonable efforts inquiries at every step of the case—removal, adjudication and disposition, review and permanency hearings. A valuable resource for judges making reasonable efforts findings is the publication Reasonable Efforts Checklist for Dependency Cases Involving Cases of Domestic Violence (herein Reasonable Efforts Checklist) available in the publications section of the NCJFCJ website. Judges can use the bench card inquiries from the Reasonable Efforts Checklist to determine whether there is co-occurring domestic violence at every point in the case. For example, the bench card suggests the following inquiries:

  • Has the agency screened for domestic violence issues, even though domestic violence has not been alleged?
  • Can services be offered that allow the child to return home today with a victim parent?
  • Would a protective order and agency services provide safety for this child?

The bench card suggests additional questions for the adjudication and disposition phase. For example, a judge can ask:

  • Is there a safety issue in having both parents in the same courtroom, accessing services or attending meetings?
  • What are the steps taken by the agency in its reunification plan to protect the victim parent and strengthen that parent’s ability to withstand the other parent?
  • Is there a safety plan for the victim parent and each child?
  • Has the batterer been sent for appropriate services?

At the permanency and review hearings, the judge can continue the inquiry. For example:

  • Are there ongoing safety issues?
  • What are the obstacles to creating a safe and appropriate home with the victim parent?

At each step, the judge can use reasonable efforts findings mandated by the Adoption and Safe Families Act to reinforce the agency’s intervention, to shape agency policy, and to encourage the community to provide resources. Judges who understand how domestic violence can affect the long-term well-being of children can use their judicial oversight to ensure that the community of professionals— including the court—working with the family will provide services that are available, accessible and appropriate.  


 

[1] Melanie Shepard and Michael Raschick, How Child Welfare Workers Assess and Intervene Around Issues of Domestic Violence, 4 Child Maltreatment 148, 149 (1999).

[2] Jeffrey L. Edelson, The Overlap Between Child Maltreatment and Woman Battering, 5 Violence Against Women134-54 (1999).

[3] Lundy Bancroft & Jay Silverman, The Batterer as Parent, 84-97 (Sage Publications 2002).

[4] See, for example, Lois A. Weithorn, Protecting Children from Exposure to Domestic Violence: The Use and Abuse of Child Maltreatment Statutes, 53 Hastings L.J..1, 82 (2001), and Jeffrey L. Edelson, Should Childhood Exposure to Domestic Violence be Defined as Child Maltreatment Under the Law, in Protecting Children from Domestic Violence: Strategies for Community Intervention, 8 (Peter G. Jaffe, et al., eds. Gilford Press 2004).

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