By Marilyn C. Moses, M.C.J., Social Science Analyst, and Cathy Girouard, Social Science Analyst, National Institute of Justice, U.S. Department of Justice, Washington, D.C.
|NIJ Needs Your Help|
Law enforcement agencies have expressed interest in developing written policies and procedures for responding to children after a parent or caretaker has been arrested. To help meet this need, the U.S. Department of Justice’s National Institute of Justice is compiling and analyzing examples of such written policies and will share them with agencies that request assistance in developing their own guidelines.
If a department has a written policy for responding to minor children at the point of parental or caretaker arrest or incarceration, please send a copy of your policy to Marilyn C. Moses, at firstname.lastname@example.org, or Cathy Girouard, at (email@example.com), or fax it to their attention at 202-606-0275. Please include the name and address of your agency as well as the name and telephone number of a contact person.
If an agency is interested in receiving information on written law enforcement policies regarding minor children and their disposition upon parental or caretaker arrest or incarceration, please send an e-mail message to the NIJ researchers. They will be happy to share the results of this effort.
More than 2 million children have an incarcerated parent. In 2000 an estimated 7.3 million children had a parent under some form of correctional supervision (prison, jail, probation, or parole). Does law enforcement become responsible for these children’s safety and subsequent wellbeing at the point of parental or caregiver arrest?
Children of incarcerated parents were considered the hidden victims of crime. But in the past two decades they have gradually emerged from the shadows and now receive much more attention from the criminal justice system and child welfare services. In general, law enforcement officers are sensitive to the children’s plight as well as the potential liability officers inherit after an arrest of the parents for the children welfare. Correctional administrators understand that they can play an important role in family maintenance and reunification. And the judiciary has become aware of the impact that incarceration has on the family.
As protocols are reassessed and new ones developed, there is an increased call for reliance on evidence-based practice. Yet there is scant data that law enforcement can rely on in developing these protocols.
Some say that the dearth of knowledge begins when the child’s status is created – at the time of parental arrest. It appears that today many departments rely on officers to use their discretion to protect children found during raids of methamphetamine laboratories, during domestic violence calls, and when parents have locked children out of their home. But policies and procedures are needed. When the sole caretaker is arrested while the child is in school, the child is likely to be locked out of his or her home with no place to go when they return home from school. As such, when officers make an arrest of a single parent, the children may become abandoned.
There are many questions requiring answers when arresting parents such as whose responsibility is it to determine that the adult, in whose care the children are left, are suitable and that the children’s safety is assured? What happens to children when their guardian is arrested during a traffic stop some distance from their home and no family member is able to drive them home?
These questions have been posed to appellate courts and the courts have not answered with a unanimous and consistent voice.
Law Enforcement Legal Liability
Advocates of children of incarcerated parents frequently cite White v. Rochford, 592 F2d 381 (7th Cir. 1979), and imply that it is well settled that law enforcement officers have a legal responsibility to ensure a child’s safety after caregiver is arrested. Yet this is not true. This landmark case notwithstanding, the courts are unsettled when it comes to when and under what circumstance a law enforcement officer has the responsibility for the safety of minors at the time of a guardian’s arrest.
White v. Rochford involved an uncle who was arrested on a cold Chicago night in 1976 for drag racing on a busy eight-lane limited-access highway. At the time of arrest there were three children in the vehicle (cousins). All three children were left in the vehicle. The children felt the only way to get help was to leave the automobile. They left the car and walked along the highway until they found a telephone. They contacted their mother but were unable to give her their location. The mother did not have transportation and was unable to pick them up. After several hours elapsed, a neighbor was finally able to locate the children and bring them home. One of the children was five years old and asthmatic. That child had to be hospitalized for one week as a result of this experience. The other children experienced emotional distress.
In this case the court found that the law enforcement officers established a “special relationship” with the children who accompanied their uncle at the time of his arrest. The court found that the officers had a special duty to ensure the children’s safety in this circumstance and were liable for both the emotional and physical injuries sustained by the children. Moreover their actions constituted “gross negligence” or “reckless disregard” for the safety of others.
The Federal Court of Appeals in Michigan heard a similar case that took place in 1988 (Walton v. City of Southfield, 995 F.2d 1331 (6th Cir. 1993)). At 3:30 p.m. a woman was driving her car accompanied by her 15-year-old daughter and her two-year-old granddaughter. The woman was pulled over by an officer in Southfield, Michigan, because the granddaughter was not in a child-restraint seat. After learning that the woman was also driving on a suspended license, the officer arrested her. The woman asked the officer to take the children into protective custody. The officer declined but suggested that the 15-year-old daughter call someone to pick them up. The woman advised that there was no one at home to pick them up. She asked the officer to reach into her purse and give her daughter some money. The officer did not do so but asked the girl if she had money. She said she had money but did not indicate the amount. Her mother gave her the telephone number of a friend. The police officer gave her the jail’s number. Then the officer watched the children enter a nearby building to make the telephone call. After the children entered the building, the officer left the scene with the mother.
The 15-year-old daughter used the public phone in the building to call her brother. However, he did not have a car and was unable to pick them up. In addition, she was unable to tell him exactly where she was. She was only able to tell him that she was in Southfield and that she only had enough money to make one call. Eventually the building closed and the children were told that they had to leave. They waited outside the building until they were finally retrieved at 9:30 p.m., six hours after the police officer left. The two-year-old child had a wet diaper and had not eaten for six hours. The 15-year-old child complained of abdominal pain.
In this case, the Sixth Circuit Court of Appeals found that the Southfield case was distinguished from White v. Rochford. The court held that White v. Rochford presented a much more dangerous circumstance than children being left at a building in Southfield, Michigan. In this case the court held, “The officers may have been insensitive and negligent in leaving children behind, but they did not violate a clearly established right to personal security.”
In addition to White v. Rochford, the Seventh Circuit Court of Appeals had the occasion to hear another case dealing with police abandonment of a minor at the time of parental arrest (Moore v. The Marketplace Restaurant Inc., 754 F.2d 1336 (7th Cir. 1985)). The events in this case took place in 1979 near Joliet, Illinois. Five adults and a 15-year-old girl who were staying at a local campground, went to the Marketplace Restaurant for dinner. They placed their order and it took over 45 minutes before they received their appetizers. They made several requests over a two-hour period for their main entrée. One or more of the requests was met with a profane remark by the restaurant staff. They decided to leave the restaurant. While they never received their entire meal, the restaurant demanded payment in full. They offered to pay for the appetizers only. Ultimately, they left the restaurant without paying. The restaurant reported them to the sheriff’s office.
The adults were arrested that evening at the campground. The mother of the 15-year-old told officers that the girl could not be left alone. The officers offered to have her spend the night in their patrol car at the sheriff’s office. The mother indicated that this arrangement was unacceptable. In the end she determined that leaving her child alone in the camper was the least dangerous option available to her. The camper had a door that locked and it had heat. After many hours in custody, the charges against the adults were dropped. The adults were not offered a ride home and had to hitchhike back to the campground. The young girl was left for many hours alone in the camper.
The Seventh Circuit did not find that this case rose to the level of the case they had heard earlier, White v. Rochford. The court found that law enforcement here exercised poor judgment but not gross negligence. The actions of the deputy sheriffs did not rise to the level of constitutional deprivation and therefore the officers were not liable.
In that same year, 1979, two children went to spend the night with a friend in Chicago. One child was 11 and the other 13. They were to be supervised by the mother of the friend they were visiting. The friend was also a minor. During the night the apartment was raided by the police and the mother was arrested on narcotics and other related charges. The police left the three children in the apartment alone. In this case, Valita M. v. City of Chicago, 1986 WL 15133 (N.D. Ill. 1986), the court held that the police officers could not foresee obvious potential dangers as could have been foreseen in the White v. Rochford. Moreover, the mother did not make them aware of any potential dangers or risks. There was a telephone in the apartment and the children used it to contact another parent. The court also found that the children were inside a building and were not outside in the cold. Therefore, the officers were not negligent.
The final case in this analysis involves an adult passenger who was abandoned when the driver of an automobile was arrested for a traffic violation at 2:30 a.m. (Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989). The court relied on White v. Rochford to make its judgment and it is instructive concerning police response to children whose caretakers are arrested. At arrest the officer removed the keys from the car, arranged for a tow truck to pick up the vehicle, and left the passenger to find her own way home, five miles away. The woman accepted a ride from a man unknown to her. The driver took the woman to a secluded area and raped her.
The Ninth Circuit Court of Appeals held, “It defies common sense to find a meaningful distinction between the dangers facing children crossing a busy highway and a woman left alone to fend for herself at 2:30 a.m. in a high-crime area,” and concluded that the woman’s liberty interest in personal security was violated by the officer’s actions. The court reasoned that any rational officer would have understood this constitutional right. The court denied the officer qualified immunity and found him liable.
The courts have not been as consistent or as prescriptive as law enforcement administrators would like with regard to guidance in this area. It seems as though the courts are sending the signal that as long as the children are not so young as to shock the conscience and no harm results, the officer can leave children in risky situations and be found to have made an unfortunate judgment call but one that does not rise to the level of deprivation of qualified immunity. But if the abandoned child is harmed in some way, the officer should have anticipated it and will be found guilty of gross negligence and reckless disregard for safety. The problem with this guidance is that it requires the officer to foresee the future. For this reason at least two states (Iowa and South Carolina) have enacted statutes that give the arresting officer of a child’s caretaker the authority to place the child in state custody.
In the last decade there have been two studies that focused on law enforcement policies and what happens to children of arrested parents. The interesting finding is that 15 years ago policies were in place that addressed this issue, while today the policies are not as clearly stated.
1993 ABA Study: From 1991 to 1993 the American Bar Association’s (ABA) Center on Children and the Law conducted a study for the Children’s Bureau in the Administration on Children, Youth, and Families, a component of the U.S. Department of Health and Human Services. One facet of this study included a national telephone survey of law enforcement agencies (n = 74) concerning policies and procedures concerning children at the time of caretaker arrest.1 The sample size was so small that the findings are certainly not generalizable. The interesting finding, however, is how policies changed between 1993 and 2001, the date of a California Research Bureau study.
ABA researchers reported that years ago 67 percent of responding departments had written policies outlining procedures for the care and placement of minor children when a parent or caretaker is arrested. Of those agencies responding to the ABA survey, 43 percent indicated that officers rarely asked about the status of children at the time of arrest. Instead, they relied on the arrestee to volunteer information about children and their needs.
Forty percent of departments assume responsibility for children when it was obvious that the child is “in need of care,” while 18 percent reported assumption of responsibility for every child at the point of sole caretaker arrest.
In 1993, 72 percent of responding agencies reported that they had procedures in place to check the nominated caretaker’s suitability to serve as a temporary guardian. These procedures took the form of an informal interview or use of police discretion (38 percent) or a background check through child protective services (34 percent). Finally, only 8 percent of law enforcement agencies indicated that they reported children of arrestees to child protective services each time they make an arrest. Most agencies (78 percent) reported children whose parents have been arrested to child protective services only when there is evidence of abuse or neglect.
2001 California Research Bureau Study: In 2001 the California Research Bureau (CRB) administered a mail survey to 350 local law enforcement agencies and 58 county sheriff’s departments in California. CRB had an 82 percent response rate from the county sheriffs and a 70 percent response rate from local law enforcement agencies. Given the size of this state, the representativeness of the law enforcement agencies surveyed within the state, and the response rate, findings from this study are important.
The California survey found that nearly two-thirds of local law enforcement departments in that state did not have written guidelines governing the care of children whose sole caretaker had been arrested. Researchers found that agencies in large populated areas were more likely to have written policies. However, they found that departments in smaller areas could be more sensitive to the issue.2
Children of Incarcerated Parents’ Bill of Rights
Gretchen Newby, executive director of Friends Outside, conceived of the Children of Incarcerated Parents’ Bill of Rights in 2003. This document was developed in consultation with a number of children who find themselves in this circumstance. The document identifies eight “rights,” the first of which is the right to be kept safe and informed at the time of parental arrest.3
This Children of Incarcerated Parents’ Bill of Rights has received attention by such organizations as the Child Welfare League of America and the United Nations. The authors of the bill of rights also made a recommendation that law enforcement develop arrest protocols that are supportive and protective of arrestees’ children.4
Although many law enforcement agencies have recognized this need and have developed written procedures guiding officer conduct in the instance of parental arrest, a uniform procedure is still needed. To this end, a project is under way at the National Institute of Justice to compile examples of these written policies and share the policies with others. To participate in the effort, write to Marilyn C. Moses (firstname.lastname@example.org) or Cathy Girouard (email@example.com).
This article does not necessarily represent the official position or policies of the U.S. Department of Justice.
1 U.S. Department of Health and Human Services, Administration on Children, Youth, and Families, Children’s Bureau, “Children on Hold: Improving the Response to Children on Hold: Improving the Response to Children Whose Parents are Arrested and Incarcerated,” by the ABA Center on Children and the Law (Washington, D.C.: December 1994).
2 California Research Bureau, “In Danger of Falling through the Cracks: Children of Arrested Parents,” by Marcus Nieto, CRB 02-009 (Sacramento, Calif.: April 2002), 11-12.
3 San Francisco Partnership for Incarcerated Parents, “Children of Incarcerated Parents: A Bill of Rights” (October 2003), 5.
4 San Francisco Partnership for Incarcerated Parents, “Children of Incarcerated Parents,” 11.