“Clear And Convincing”: The Nearly Impossible Standards to Meet During a Pandemic

by Alexis Stonestreet

Since March of last year, the implementation of isolation and social distancing has confined families within the walls of their homes. Though quarantine protects the lives of thousands of families, for many children suffering from abuse, this isolation means entrapment in abusive households with little to no escape.

Before the onset of COVID-19, the United States was already suffering from an ongoing child safety crisis. Between 2014 and 2018, the amount of Child Protective Service (CPS) referrals rose 16.4%.[1] In 2018 alone, CPS received a total of 4.3 million referrals at a rate of 58.5 per 1,000 children, alleging abuse and neglect involving approximately 7.8 million children total.[2] Among these referrals, 2.4 million referrals were deemed worthy of an investigation, an 11.1% increase from 2014.[3]

From these statistics, it’s hard to picture how child abuse could be exacerbated further. However, after the first month of stay-at-home orders, nine metropolitan cities across the United States reported between a 20%- and 30%- increase in domestic violence service calls, with some areas in the city being as high as 62%.[4][5] While domestic violence and child abuse are not the same, according to several different studies dating as far back as 1998, in 30 to 60% of households where domestic violence occurs, child abuse happens as well.[6] This correlation provides us with enough information to infer that with a drastic spike in domestic violence cases during stay-at-home orders, there’s also been a subsequent spike in child abuse cases.

Under normal circumstances, 67.3% of child abuse or neglect cases are reported by professionals, such as educational, legal, law enforcement, and social services personnel, who consistently work with children.[7] However, with less interactions outside of the home between children and social workers, coupled with a scaling back of CPS investigations inside the home, child abuse has become harder to notice and report. In states across the country, reports have fallen anywhere between 20% and 70%.[8][9]

When looking at these COVID-19 statistics, if a CPS case is reported, and it does get investigated, what should be deemed sufficient evidence to pull the child out of the home? If almost every possible source of evidence and witnesses has been taken out of the equation, how should child abuse cases be handled? This is where the 1982 Supreme Court case of Santosky v. Kramer[10] comes into play.

In Santosky v. Kramer, the case stated that under state law, a state could not terminate the rights of parents over their natural child over parental objection if, under only a fair preponderance of evidence, the state found that the child was “permanently neglected.” The Court issued a 5–4 opinion in favor of John and Annie Santosky, who were parents at risk of losing custody of their children due to this state law.[11] The Court ruled that the “fair preponderance of evidence” standard violated the Due Process Clause of the 14th Amendment.[12] In other words, the Court reasoned that because a “fair preponderance of evidence” was inconsistent with the Due Process clause because of its substantial violation of parental rights, a “clear and convincing” standard was more appropriate because it would adequately convey a level of subjective certainty necessary to satisfy due process. Because of the ruling, states that previously used the “fair preponderance of evidence” standard must now use a “clear and convincing” standard of evidence.

This clear and convincing standard would normally be fine. However, during the pandemic, massive job losses, economic recession, and other stresses have proven to be significant risk factors for child mistreatment, with many parents turning to negative coping strategies that end up in domestic violence and child abuse.[13] With children being cooped up in their homes away from mandatory reporters, it has inherently become harder to gather evidence sufficient to meet the “clear and convincing” standard set by Santosky v. Kramer.

Usually, outside of the home, mandatory reporters like teachers, law enforcement, and social service workers are one of the most significant initiators of child abuse investigations.[14] Not only do they make up the majority of the reports, but also their reports are nearly three times more likely to be substantiated compared to claims from non-mandatory reporters, such as neighbors or friends.[15] With mandatory reporters becoming more distanced from children, systems like CPS need to start relying more on claims from non-mandatory sources as well. The spike in domestic violence calls during quarantine coupled with the severe drop in child maltreatment reports could mean that thousands of cases of abuse are going unnoticed by officials until children are already in the emergency room.[16]

Despite the drop in child abuse reports in traditional systems like CPS, independent hotlines like the Childhelp National Child Abuse Hotline have been trying to mitigate the underreporting crisis by allowing reports from people other than mandatory reporters.[17] With these independent hotlines, which don’t require a mandatory reporter, there has been a 31% uptick in child abuse reports, mainly from the teens and children themselves reaching out through online chat services. These services, coupled with the uptick in children showing up in emergency rooms and intensive care units, show that we need to revisit the standards of how much evidence is “enough” during a pandemic, because “clear and convincing” is too often an almost impossible and dangerous one.[18]

The standards for “clear and convincing” evidence has harmed children stuck in abusive homes during quarantine more than it has helped. With a lack of professionals and other resources that can see and report the abuse firsthand, the standard for evidence set by Santosky v. Kramer has become a blockade to reporting suspected abuse during quarantine. Even though calls to CPS have slowed down since the pandemic, child abuse cases in the hospital have become more severe, with injuries so visible, like a broken arm or a beat-up face, that medical attention is unavoidable.[19]

When barriers like the clear and convincing standard are set, teachers and other professionals have their hands bound, even when they’re suspicious of abuse. During the age of stay-at-home orders and online classes, parents can easily hide their abuse by not allowing the camera to be on during classes, not responding to emails or classwork, or even withdrawing their children entirely. The re-implementation of the “fair preponderance of evidence” standard would allow teachers, neighbors, and coworkers to successfully report suspected child abuse before it’s too late.

One counterargument to the idea of the re-implementation of the “fair preponderance of evidence” standard would be, as Santosky vs Kramer states, that it would be a violation of the Due Process clause. However, as stated with Mathews v. Eldridge, due process is “flexible” and calls for “procedural protections as the situation demands”.[20] Just as in the case of terminating disability benefits, there are numerous safeguards in place to prevent errors in making the decision to terminate parental rights such as the CPS reporting and investigating system, teacher and social worker liability, etc. Therefore, the addition of another safeguard to justify terminating parental rights when there is already a “fair preponderance of evidence” could end up having more costs than benefits as it would further delay the process of putting the suspected abused child in a safe environment, which could end up having further mental, physical, emotional, social, or even educational impacts in the long run and it would put them through another trial when investigations and reports like CPS have already been filed and completed.

Teachers and other social services professionals have already been discouraged and sometimes even prevented from reporting suspicions due to the fact that “they don’t have enough concrete evidence,” and adding on the extra boundary of quarantine makes this even more prevalent and troubling.[21] With the “clear and convincing” standard, coupled with the circumstances surrounding quarantine, there is not enough action being taken to prevent child abuse because the bars set to take action are unreasonably high for a time like this. Therefore, the reversal back to a “fair preponderance of evidence” standard during quarantine would prove most beneficial to protect the safety of children as it would increase the pressure on social workers and non-mandatory reporters to report abuse when they suspect it and allow for the circumstances around evidence to become fitting to the times we’re currently experiencing.





[1] Child Maltreatment 2018, Cʜɪʟᴅʀᴇɴ’s Bᴜʀᴇᴀᴜ ᴏғ ᴛʜᴇ U.S. Dᴇᴘᴀʀᴛᴍᴇɴᴛ ᴏғ Hᴇᴀʟᴛʜ ᴀɴᴅ Hᴜᴍᴀɴ Sᴇʀᴠɪᴄᴇs (Jan. 15, 2020), https://www.acf.hhs.gov/cb/report/child-maltreatment-2018.

[2] See id.

[3] See id.

[4] See id.

[5] Yasmin B. Kofman & Dana Rose Garfin, Home Is Not Always a Haven: The Domestic Violence Crisis Amid the COVID-19 Pandemic, 12 Psʏᴄʜᴏʟᴏɢɪᴄᴀʟ Tʀᴀᴜᴍᴀ: Tʜᴇᴏʀʏ, Rᴇs., Pʀᴀᴄ., & Pᴏʟ’ʏ 199 (2020).

[6] Resource Center on Domestic Violence: Child Protection and Custody, Co-Occurrence of Child Abuse and Domestic Violence Exposure, Aᴅᴍɪɴɪsᴛʀᴀᴛɪᴏɴ ᴏɴ Cʜɪʟᴅʀᴇɴ, Yᴏᴜᴛʜ ᴀɴᴅ Fᴀᴍɪʟɪᴇs, Fᴀᴍɪʟʏ ᴀɴᴅ Yᴏᴜᴛʜ Sᴇʀᴠɪᴄᴇs Bᴜʀᴇᴀᴜ, U.S. Dᴇᴘᴀʀᴛᴍᴇɴᴛ ᴏғ Hᴇᴀʟᴛʜ ᴀɴᴅ Hᴜᴍᴀɴ Sᴇʀᴠɪᴄᴇs (September 30, 2020), https://rcdvcpc.org/co-occurrence-of-child-abuse-and-domestic-violence-exposure.html.

[7] See supra note 1.

[8] Meerah Powell, Child Abuse Reports Drop 70% In 1 Month, Leaving Oregon Officials Concerned, Oʀᴇɢᴏɴ Pᴜʙʟɪᴄ Bʀᴏᴀᴅᴄᴀsᴛɪɴɢ (March 28, 2020), https://www.opb.org/news/article/child-abuse-reports-drop-70-in-one-month-leaving-oregon-officials-concerned/.

[9] Duaa Eldeib, Calls to Illinois’ Child Abuse Hotline Dropped by Nearly Half Amid the Spread of Coronavirus. Here’s Why That’s Not Good News., Pʀᴏᴘᴜʙʟɪᴄᴀ Iʟʟɪɴᴏɪs (March 24, 2020), https://www.propublica.org/article/illinois-dcfs-child-abuse-hotline-calls-coronavirus.

[10] 455 U.S. 745 (1982).

[11] Santosky v. Kramer, 455 U.S. 745, 747 (1982).

[12] ld. at 748.

[13] Monica Lawson et al., Child Maltreatment during the COVID-19 Pandemic: Consequences of Parental Job Loss on Psychological and Physical Abuse Towards Children, Cʜɪʟᴅ Aʙᴜsᴇ & Nᴇɢʟᴇᴄᴛ (Sept. 4, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7472978/.

[14] Bryn King et. al, Examining the evidence: reporter identity, allegation type, and sociodemographic characteristics as predictors of maltreatment substantiation, Cʜɪʟᴅ Mᴀʟᴛʀᴇᴀᴛᴍᴇɴᴛ (Oct. 11, 2013), https://journals.sagepub.com/doi/pdf/10.1177/1077559513508001?casa_token=gluAD-X7nrsAAAAA:1Z_wYCCgDPdEBypwPa0Q8boC8i8xau4g_AdoScIdstF0GKgWodpr_-UsqeF6sxsjgLz5f8uAyaYMPsQ.

[15] Id.

[16] Samantha Schmidt & Hannah Natanson, With kids stuck at home, ER doctors see more severe cases of child abuse, Tʜᴇ Wᴀsʜ. Pᴏsᴛ (April 30, 2020), https://www.washingtonpost.com/education/2020/04/30/child-abuse-reports-coronavirus/.

[17] ld.

[18] ld.

[19] ld.

[20] Mathews v. Eldridge, Oyez, https://www.oyez.org/cases/1975/74-204

[21] See Schmidt & Natanson, supra note 15.

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