By Paula Werme
The hallmark of legislation prohibiting action by the state, or proscribing action that must be undertaken by the state requires preciseness in drafting definitions under the law. The New Hampshire Definitions of "Child Abuse" and "Child Neglect" are unconstitutionally vague, in that they permit the Division of Children, Youth, and Families, in conjunction with the Courts, to define the types of conduct that constitute abuse or neglect. The right to be a parent and to raise children the way someone sees fit is a right that each of us had before the Constitution was ever written. The United States Supreme Court has recognized that it is a "fundamental right" meaning that it is so basic, that it requires a very high degree of protection. Therefore, the state needs a "compelling interest" to justify interference with family life. The health and welfare of its younger members has been recognized as a "compelling interest," especially when compared to the right of a parent to abuse or neglect their child. Balancing the parent's "fundamental interest" against the state's "compelling interest" thus turns into little more than weighing the evidence as if the subject of the litigation was a contract dispute. Worse, the accused is at a disadvantage in the Court because all of the other parties frequently see each other, meet to discuss "juvenile justice" issues, and the judges see their role as "protecting the children." The chances of the Court ruling in the parent's favor and dismissing a Petition of Abuse or Neglect are slim to none, no matter how ludicrous the allegations. Frequently the preliminary hearing will result in the finding of "reasonable cause to believe" allegations of abuse that are sufficient to have a trial on the matter, with the parent losing custodial right to the children in the meantime. The parent must interact with the Division if he is to see his or her children, and the Division usually collects information that will surely back up their initial petition during that time. It's hard for the Division to lose if the Court has ordered a home inspection, psychological evaluation, substance abuse evaluation with lab work, etc. In particular, a parent may never realize that the psychological evaluation is by a psychologist hand-picked by the Division who will tilt the evaluation in the state's favor. This then becomes "evidence" that the parent is abusive or neglectful.
The crux of the overbreadth and vagueness problem becomes obvious when you attempt to define the severity of the behavior that would justify interfering with this fundamental right of parents to the care and control of their children. This case-by-case interpretation enables the Division of Children, Youth, and Families to file a Petition for Abuse or Neglect in almost any case. The virtual guarantee of the Petition is one thing that so inflames those who have had contact with the Division. The Court readily agrees that the Petition offers a "reasonable cause to believe" that abuse or neglect has occurred. Those who have had dealings with the Division and the courts are seeking sweeping legislative changes to make it much harder for the state to interfere in family life in the first place.
For every severely abused child, there are many more whose parents were momentarily distracted, too poverty ridden to properly provide food, or whose religious belief in corporal punishment somehow came to the attention of the child savers in the state. Once they have come to the attention of the state, the social worker will try to scrutinize the parent's every act to find a reason to plug their behavior into the definition. Given the vagueness of the definition, the worker can't fail if they are determined to file against someone.
For instance, from New Hampshire RSA 169-C:3:
II. "Abused child" means any child who has been:
- Sexually abused; or
- Intentionally physically injured; or
- Psychologically injured so that said child exhibits symptoms of emotional problems generally recognized to result from consistent mistreatment or neglect; or
- Physically injured by other than accidental means.
XIX. "Neglected child" means a child:
- Who has been abandoned by his parents, guardian, or custodian; or
- Who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, when it is established that his health has suffered or is very likely to suffer serious impairment; and the deprivation is not due primarily to the lack of financial means of the parents, guardian or custodian; or
- Whose parents, guardian or custodian are unable to discharge their responsibilities to and for the child because of incarceration, hospitalization or other physical or mental incapacity; Provided, that no child who is, in good faith, under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone, be considered to be a neglected child under this chapter.
XXVII-a. "Sexual abuse" means the following activities under circumstances which indicate that the child's health or welfare is harmed or threatened with harm: the employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or having a child assist any other person to engage in, any sexually explicit conduct or any simulation of such conduct for the purpose of producing any visual depiction of such conduct; or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children. With respect to the definition of sexual abuse, the term "child" or "children" means any individual who is under the age of 18 years.
The first thing that is obvious from a reading of these definitions, is that nowhere does it mention parental fault or behavior as a basis for a finding of abuse or neglect. This is no small omission. I have the issue before the New Hampshire Supreme Court in two separate cases right now. Specifically, the question before the Court is "Do fundamental principles of due process imply that the child protection act requires, as a prerequisite for a finding of abuse, that the person named in the petition for abuse or neglect have personal culpability in that finding by virtue of either being the perpetrator of the abuse or the person that neglected to protect the child from a specific known and foreseeable risk of abuse or ignored facts which would lead a reasonable person to conclude that her child is being abused?" If the police are unable to come remotely close to finding a perpetrator in cases of alleged abuse, they can simply turn the case over to the Division for Children, Youth, and Families for civil prosecution. Take the kid away, and we'll worry about who might have done it if and when. Meanwhile, no matter how loving the parent might be, the kid is safer away from the parent. The Court literally could, (but likely will not), interpret the statute so as to take a child away from one of the state supreme court justices because a stranger attacked his or her child in a parking lot at the mall.
A second thing that fairly jumps off the page in reading the definitions is that ANY intentional injury to a child, even a gentle swat on the tush, can constitute abuse under the statute because it is "intentional physical injury." "Physically injured by other than accidental means" could also be interpreted in any manner by the courts or DCYF. It could mean an injury sustained in a high school football game or wrestling match because the risk of injury would not have occurred if the child had not participated in a dangerous sport.
Beyond the issue of parental fault, allowing social workers, in concert with District or Family Court judges, to individually interpret the phrases "without proper parental care, control, or sustenance" on an ad hoc basis is an unconstitutional delegation of authority to the courts and state. To some, it might mean a kid who stays out past his curfew, to others, it would require severe behavior, such as letting a toddler play on main street without supervision.
Does not providing a child with "proper education" mean keeping the child out of school to home-school? Of course not. Home schooling is legal in all 50 states. Does it mean not following the home school laws because you don't believe in them, even if you are educating your children? Folks have been chased here in the "live free or die" state, and I have a letter from DCYF stating that "[E]ducation as required by law as defined in RSA 169-C is interpreted by the Division to indicate that a technical non-compliance with that statute could be viewed as educational neglect." Does it mean an inadvertent failure to comply with one little piece of the home-education law, even though the parent is adequately educating the child? Yes, according to the court. My first trial was about a technical violation of the home school law. The Division did not even bother to assert that the children were uneducated, but the parents were denied their right to home-school for an entire year while the case dragged on in Court. Oh yes, they misquoted the home school law to the Court in the petition for neglect, but the judge "found" that the parents failed to comply with the [non-existent] requirement anyway. This is what I mean when I say they define neglect anyway they want!
Is refusal to sign a child's IEP (Individualized Education Plan) educational neglect? Folks have been turned in to DCYF for it. How about refusal to have a child tested for a learning "disability?" How about refusal to have a child not even in school tested for special needs? Refusal to send an eligible child to Head Start? I've seen all these issues. If the school can't get state or federal funding to educate a kid they deem to be "in need of services," the threat of turning the parent over to DCYF solves the problem. If DCYF has custody, they'll sign. I have a saying when it comes to child abuse or neglect definitions. "Follow the money." If you figure out who stands to lose by your parental actions or inaction, you know who is likely to turn you in for neglect.
What about other parts of the definition? Does a parent get a neglect petition filed against him if his kid doesn't follow his parent's order to stay home when he is grounded, or does the parent risk a charge of abuse for physically disciplining a child because he didn't follow the parent's order?
Is a child's mental health impaired enough to satisfy the definition of neglect if the parents refuse to send a child for psychological therapy following molestation? How about if they offer pastoral counseling to the child in lieu of traditional counseling through a psychologist or mental health care provider?
Is a child's mental health impaired enough to satisfy the definition if the child states "My parents will kill me if [or when] [fill in the blank]." I've litigated it. The Court ordered the child psychologically tested to determine if s/he was in mortal fear of his/her parent. Furthermore, I was chastised by the judge for arguing that it was just an expression both parents and kids use.
Failure to provide "other care or control necessary for his physical, mental, or emotional health" has been used to file a charge of neglect based on dirty kid following a day at a park with an asymptomatic ear infection. Why didn't the judge require that it cause "serious impairment" to the child in that case? We'll never know. And we'll never know why a judge didn't dismiss the case when alleged physical injuries were not confirmed at the hospital emergency room following the ex parte order to take the children. The judge instead ordered the kids into foster care with supervised visitation once a week for the parents. AND he ordered the non-neglecting, non-abusing parent of the children to submit to a criminal records check, home inspection, and psychological evaluation before he would release kids into the parent's custody prior to the trial. DCYF helpfully (?!) supplied the parent with virtually 24 hour "assistance" in caring for his kids via "Family Strength." Gratis, no proof of inability to care for your children required.
I would hope that no Court in this state would have considered Laura Ingalls Wilder a neglected child had she come before it 120 years ago, but I expect that if that if "transiency," travel or moving is the reason for the finding of neglect, it might well have also declared one of America's most loved authors a neglected child. I recently had to send a Connecticut Court a letter indicating that their state definition of Child Neglect did not mention "transiency" as a basis for child neglect.
The legal citations I summarize below back up the right to raise a child as a parent sees fit, the right to travel, and a parent's right to know before being charged with abuse or neglect what behavior constitutes abuse or neglect. Use the reasoning from the court decisions to decide if your own state's definition is too vague. Eventually I hope to have a link to every state's definition of abuse or neglect.
"A statute or government regulation is void for vagueness when it either forbids or requires 'the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its 'application.' "
|Sheedy v. Merrimack County Superior Court, 128 N.H. 51, 54, 509 A.2d 144, 146 (1986) (quoting Connally v. General Construction Co., 269 U.S. 385, 391 (1926)).|
"The principle underlying attacks on statutes as unconstitutionally void for vagueness is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed."
|U.S. CONST. amend. XIV; N.H. CONST. pt. 1 , art. 15.|
"A statute fails for overbreadth when it 'sweeps unnecessarily broadly and thereby invades . . . protected freedoms.' State v. Albers, 113 N.H. 132, 134, 303 A.2d 197, 199 (1973) (quotation omitted); see also State v. Pike, 128 N.H. 447, 450-51, 514 A.2d 1279, 1281 (1986) Mere ambiguities of language will not suffice to invalidate a statute on grounds of overbreadth. The statute must proscribe behavior normally protected."
|See Pike, 128 N.H. at 451, 514 A.2d at 1281; Albers, 113 N.H. at 134, 303 A.2d at 199.|
"A statute is void for overbreadth 'if it attempts to control [conduct] by means which invade areas of protected freedom.' "
|State v. Smith, 127 N.H. 433, 439, 503 A.2d 774, 778 (1985); see State v. Wong, 125 N.H. at 622, 486 A.2d at 269; see also Zwickler v. Koota, 389 U.S. 241, 250 (1967); NAACP v. Alabama, 377 U.S. 288, 307 (1964) ("a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms").|
"Vagueness attack stems from the 'exaction of obedience to a rule or standard so vague and indefinite as to be no rule or standard at all.' "
|Giaccio v. Pennsylvania, 882 U.S. 899 (1966).|
"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that a man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing a fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application."
|Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972)|
"Vague statutes thus carry three dangers: the absence of a fair warning, the impermissible delegation of discretion, and the undue inhibition of the legitimate exercise of a constitutional right."
|Alsager v. District Court of Polk City, Iowa, 406 Fed. Supp at 18.|
"The initial danger present in a vague statute is the absence of fair warning. Citizens should be able to guide their conduct by the literal meaning of the phrases expressed on the face of the statutes. When the standard embodied in the statute is susceptible to multifarious meanings, a person may believe that his actions comply with the law, only to have the law used against him. The standards of 'necessary parental care and protection,' § 232.41(2)(d), are susceptible to multifarious interpretations which prevent the ordinary person from knowing what is and is not prohibited. . . .
The second danger present in a vague statute is the impermissible delegation of discretion from the state legislature to the state law enforcement body. The Iowa parental termination standards of 'necessary parental care and protection' . . . and of '[parental] conduct . . . detrimental to the physical or mental health or morals of the child' . . afford state officials so much discretion in their interpretation and application that arbitrary and discriminatory parental terminations are inevitable. Indeed, the Supreme Court has recently noted that 'perhaps the most meaningful aspect of the vagueness doctrine is . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.' Smith v. Goguen, 415 U.S. 566 (1974). Under Iowa's current scheme, state officials may subjectively determine, on an ad hoc basis, what parental care is 'necessary' and what parental care is 'detrimental.' The termination of the parent-child relationship in any given case may thus turn upon which state officials are involved in the case, rather than upon explicit standards reflecting legislative intent. This danger is especially grave in the highly subjective context of determining an approved mode of child rearing. The Court finds these standards unconstitutionally vague in that they are permeated with the 'dangers of arbitrary and discriminatory application.'
The third danger present in a vague statute is the risk that the exercise of constitutional rights will be inhibited. The Iowa parental termination standards of 'necessary parental care and protection' . . and of [parental] conduct . . detrimental to the physical or mental health or morals of the child . . serve to inhibit parents in the fundamental right to family integrity."
|Alsager v. District Court of Polk City, Iowa, 406 Fed. Supp 10, 18, (1975)|
" 'Due Process' requires the state to clearly identify and define the evil from which the child needs protection and to specify what parental conduct so contributes to that evil that the state is justified in terminating the parent-child relationship."
|Alsager v. District Court of Polk City, Iowa, 406 Fed. Supp at 21.|
"The Alabama statute defining 'neglected children' sweeps far past the constitutionally permissible range of interference into the sanctify of the family unit The fact that a home is 'improper' in the eyes of the state officials does not necessarily mean that a child in the home is subject to physical or emotional harm."
|Roe v. Conn, 417 F. Supp 769, 779 (1976).|
"When is a home an 'unfit' or 'improper' place for a child? Obviously, this is a question about which men and women of ordinary intelligence would greatly disagree. Their answers would vary in large measure in relation to their differing social, ethical, and religious views. Because these terms are too subjective to denote a sufficient warning to those individuals who might be affected by their proscription, the statute is unconstitutionally vague."
|Roe v. Conn, 417 F. Supp. 769 at 780 (1976)|
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Last updated 1999 November 7.