This guest post is from Haley Maddrey, Regent Family Law student:
For many, childhood is a wonderful picture of imagination, exploration, and comfort. For many others, however, childhood is a nightmare that can only be escaped by attending school for seven hours each day. In 2008, the California Court of Appeals held that a parent’s right to direct the upbringing and education of his child must yield to compelling state interests such as protecting a child from abuse when that harm is established by clear and convincing evidence. (Johnathan L. v. Superior Court, 165 Cal. App. 4th 1074 (2008).
In
Johnathan L. v. Superior Court, the
court held that a child’s safety was jeopardized by her parents’ decision to
homeschool her because the child’s father had a history of abusing his other
children and social work intervention had been repeatedly required to protect
the various children in the family. The court stated that “the propriety of any parent’s home schooling will only arise in a
dependency [abuse] proceeding as in this case…” Id. The Court under those circumstances accepted the state’s
argument that the children needed to be in school because they would be surrounded
by mandatory reporters. While California had no provision for homeschool
oversight in such circumstances (and the court recommended that such
“additional clarity in this area would be helpful.” Id.) the child was still able to live at home, though the
prevailing outcome required public school attendance as it would provide an
extra hedge of protection against abuse.
The
COVID-19 pandemic has required families to navigate through many new obstacles.
But imagine being an abused or neglected child whose only solace for the past
four years has been travelling to elementary school each day to have someone
care for your well-being. All of a sudden, a virus shuts down your school or
moves it online, and you are stuck in an abusive environment for 24 hours a day
with no one to report on your welfare. Add to that the family stress brought on
by challenging employment, financial, and emotional conditions surrounding the
pandemic, and a perfect storm for a rise in abuse gains even better momentum.
According
to the Center for Disease Control and Prevention, the number of visits to the
hospital in the United States for suspected or confirmed child abuse or neglect
which ended in hospitalization have increased throughout the COVID-19 pandemic.
Emergency department visits related to abuse or neglect, however, have
decreased. One might assume this is a positive sign, but the CDC
attributes this decrease to a change in care-seeking patterns rather than a
change in behavior.
Emergency care for incidents of abuse or neglect
is not likely to be sought by a perpetrator. Such care is likely to be sought
by mandatory reporters, innocent bystanders, concerned third parties, and
victims themselves. Without a mandatory reporter present during the day to
fight for a child’s protection, there are risks that children will not receive
the emergency medical care they may so desperately need resulting from abuse or
neglect within the home. Consider the case of State v. Brown, for example. Tragically, a four-year-old child died
at the hands of his abusing father. When his autopsy was conducted, the doctor
found that the child had an unhealed broken arm that had never been reported or
discovered. State v. Brown, 836
S.W.2d 530 (Tenn. 1992). The father had not taken the child to the emergency
room and since he was not yet in school, he seemingly had no one to advocate
for his welfare or report his abuse.
So, where do we go from here in this pandemic? I propose that education administrators may want to consider advocating for a system of mandatory reporting, in a context that respects parental rights, but that might require home visits when abuse has already been evidenced, or some extra layer of protection for children from abuse during this dangerous and unprecedented time.
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