A bruised ear kept the Bucks County child welfare caseworker awake at night. The injury wasn’t to her, but rather a child whose case she was assigned.
The woman wanted the injury investigated as suspected child abuse since an ear bruise is rarely accidental. In the end, though, she and her supervisors decided against opening a case.
The reason: A bruise doesn’t meet Pennsylvania’s threshold for child abuse.
“Regrettably, we have seen countless cases like this,” said Dr. Maria McColgan, director of the child protection program at St. Christopher’s Hospital for Children in Philadelphia. She recalled the conversation with the caseworker in recent testimony before the recently formed Pennsylvania Task Force on Child Protection.
One of those cases involved a 7-week-old infant who was brought to St. Christopher’s ER because his arm wasn’t moving. Doctors found an upper arm fracture, as well as other fractures, a bruise and a healing cut in his mouth
. The diagnosis was a clearly inflicted injury, McColgan said.
But when the case went to family court, the parent’s defense attorney argued that the injuries didn’t rise to the legal level of abuse. The child wasn’t impaired, since he was too young to hold a bottle. The judge agreed and ruled the child wasn’t abused
and ordered him returned to the family home, McColgan said.
Stories like these are not unusual in Pennsylvania
, where only 15 percent of the more than 24,000 cases of suspected child abuse in 2010 were substantiated. Pennsylvania has the lowest rate of child abuse substantiation in the nation
, advocates say.
Statewide in 2010, only 1.3 cases per 1,000 reports were confirmed, compared to a national rate of 9.2 per 1,000 reports. In Bucks and Montgomery counties, the substantiation rate is even lower: fewer than one out of every 1,000 cases in 2010, according to state statistics.
Child welfare workers and advocates say the reason for the low substantiation rate is a state law that sets the bar extremely high for the type of injuries that can be inflicted on a child without being considered abuse
As a result, it’s more difficult for child welfare workers to substantiate abuse, a designation that makes it easier for a child and family to get counseling, treatment, outside supervision, and, if necessary, a court order to remove a child from the home.
Among the troubling gaps that advocates cite:
- The use of a pain threshold to substantiate child abuse.
- An abuse report must be listed as unfounded if a perpetrator cannot be identified.
- Only a parent, the intimate partner of a parent, a person over the age of 14 living in the home or a person responsible for a child’s welfare can be considered an abuse perpetrator.
- Unfounded child abuse investigation records must be destroyed, even in cases where inflicted physical or sexual abuse is medically confirmed.
While a broken leg or burns on a child under age 2 might sound like irrefutable child abuse, that is not the case in Pennsylvania.
Pennsylvania’s law requires an injury to cause both severe pain and temporary or permanent impairment to substantiate child abuse.
Child advocates argue that the use of a pain threshold is far too subjective and it doesn’t take into account that children who suffer regular physical abuse often develop higher pain thresholds
The pain rating also means that a child can have medically-confirmed injuries, but if one doctor rates the child’s pain as less than severe, the abuse report will be declared unfounded, said Catherine Palm, executive director of the Protect Our Children Committee, a state coalition of child advocates, doctors and service providers.
“Kids are slipping through the cracks in this state,” she added. “Children and Youth can only be as good as the laws and the resources we give them.”
Other states don’t use a pain scale to substantiate child abuse. Many use specific physical or medically diagnosed injuries that, if they occur without a good explanation, are automatically ruled as abuse.
In Hawaii, for example, substantial or multiple skin bruises, internal bleeding, skin injury, malnutrition, burns, poisoning, soft tissue injury or a bone fracture on a child — if not “justifiably explained” or accidental — are deemed the result of child abuse.
Sixteen states also include “physical discipline” as an exception to the definition of child abuse as long as it is reasonable and causes no bodily harm to the child. Georgia excludes physical discipline from its child abuse definition only if “there is no physical injury to the child.”
Pennsylvania’s pain threshold also doesn’t take into account that a child may appear unimpaired or not in pain if no one is moving him or her, added McColgan, also an associate professor of pediatrics at Drexel University College of Medicine.
“With children, this becomes more difficult,” she testified recently. “I cannot determine with any certainty the level of pain a 7-week-old, a 13-month-old, or oftentimes, even an older child is experiencing.”
Where an abuse investigation is unfounded, families can be referred for general protective services, which involves counseling and monitoring at-risk families. But the family can refuse the services. Even if families accept the services, child welfare agencies aren’t obliged to keep track of the families.
Another sticking point for child advocates is that unfounded abuse investigation records must be destroyed after 16 months. They argue that the requirement undercuts the ability of medical professionals and social workers to fully assess the risk and safety of a child in the future.
Another major flaw child advocates frequently cite with the law is the requirement that an abuse investigation identify the perpetrator to substantiate a case of physical abuse.
“It’s not enough to say, it’s one of you,” said Frank Cervone, director of the Support Center for Child Advocates in Philadelphia, a pro-bono program that advocates for abused and neglected children.
Bucks County District Attorney David Heckler agrees that requiring identification of a perpetrator to substantiate abuse is ridiculous in cases where there is medical confirmation of inflicted injury.
“That, of course, is nonsense,” he said. “That has to change.”
Heckler chairs the state’s new child protection task force, which is holding hearings and plans to release a list of recommended changes to the law later this year. One of the group’s recent hearings in Philadelphia focused, in part, on the state’s definition of child abuse.
But Heckler added that an abuse investigation’s outcome has no bearing on law enforcement. Police and prosecutors can pursue criminal investigations and file charges against suspected abusers regardless of the investigation’s outcome.
He added that child welfare workers are encouraged to bring suspicious cases to the attention of the DA’s office.
Statistics, though, show most abuse reports don’t result in criminal charges. In 2010, only 35 percent of child abuse reports in the state were referred to law enforcement for possible criminal investigation and prosecution.
“We’d much rather hear about cases that are iffy,” Heckler added. “Most of our police departments can spend some time looking into a case. If it’s not prosecutable, so be it. I’d rather spend the time making sure a kid is OK.”