Significant New Changes to the Federal Child Abuse Prevention and Treatment Act:
Practical Implications for Child and Family Advocates

Howard Davidson, J.D., Director, ABA Center on Children and the Law

July 25, 2003

In 1974 Congress enacted the Child Abuse Prevention and Treatment Act (42 U.S.C. §5101 et seq.), a law that has since provided annual federal grants to states to support improvement in the work of child protective services (CPS) agencies, as well as enhanced interdisciplinary collaboration in the handling of reported child maltreatment cases.  This law has been reauthorized and amended, on average, every 4-6 years.

Although the total amount of federal "CAPTA State Grant" funding has been modest (e.g., for federal fiscal year 2003, slightly less than $22 million divided among the states), the law's state grant eligibility requirements have led to important statutory changes.  For example, when CAPTA first took effect almost thirty years ago, many states did not have laws mandating appointment of a guardian ad litem for all children involved in abuse/neglect court proceedings.  CAPTA's grant condition that states always make such appointments has resulted in almost all states imposing this requirement in their law. 

As of 2003, only two states, Indiana and Pennsylvania, do not receive CAPTA State Grants. Indiana is ineligible because it doesn't mandate appointment of a guardian ad litem or have a CAPTA-required parental appeals process; Pennsylvania because its child neglect law is not as comprehensive as CAPTA's definition.

On June 25, 2003, the President signed the "Keeping Children and Families Safe Act," Public Law 108-36, that reauthorized CAPTA through federal fiscal year 2008.  The reauthorization potentially doubles the amount of state grant funding available, if Congress ever significantly increases CAPTA appropriations.  Contained within the reauthorization, in Section 114(b) of the law, are many additions to the state grant eligibility requirements that take effect immediately  (with one exception providing for a two-year delay).  Several of these provisions, binding on the states, have particular significance for advocates of abused/neglected children and their families.

Getting Enhanced Services for Children

Consistent with changes in the new CAPTA amendments that encourage federal support of special CPS linkages with developmental, mental health, early intervention, and health services related to evaluation and treatment of maltreated children, state grant eligibility is now tied to several state practices intended to access supportive help for at-risk children.  These are:

• Requiring policies and procedures for hospitals that assure CPS is notified of all children born affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure
   
• Requiring CPS to develop a "plan of safe care" for every such drug-exposed infant reported to it
   
• Requiring CPS to implement "triage procedures" for appropriate referrals of children who are found by CPS not to be at risk of imminent harm to a "community organization or voluntary preventive service" (a federal move to facilitate development of a community child protection approach to service provision)
   
• Requiring CPS to have "provisions and procedures for referral" of a substantiated child maltreatment victim under age three to "early intervention services" funded by Part C of the federal Individuals with Disabilities Education Act (IDEA) [see more about this below]

Facilitating Improved Information Sharing and Access

Prior amendments to CAPTA have facilitated a greater degree of permissible information exchange between CPS and other agencies working with children and families, as well as with the public (e.g., requiring CPS to disclose its findings or information in child fatality and near-fatality cases).  Those earlier changes reversed direction from what, in the original law, were very tight confidentiality requirements with strictly limited permissible exceptions.  Now, CAPTA goes further in promoting information access by:

• Requiring states to have CPS provisions that will now compel disclosures of otherwise confidential CPS information to other government entities, or their agents (e.g., contractors), that have "a need for such information" in order to carry out their own "responsibilities under law to protect children from abuse and neglect"
  
• Clarifying that CAPTA's state grant-related confidentiality requirements do not apply to policies giving public access to child protective court proceedings, so long as such access does not risk the "safety and well-being of the child, parents, and families"
   
• Mandating, no later than June 2005, that states have "provisions and procedures for requiring criminal background record checks" for not only prospective foster and adoptive parents, but also for "other adult relatives and non-relatives" residing in these households.  This differs from Section 106 of the 1997 Adoption and Safe Families Act in that ASFA's criminal record provision does not address checking anyone beyond prospective foster and adoptive parents themselves, makes certain felony convictions mandatory disqualifiers for approving a foster or adoptive home, and most significantly, contains an "opt out" provision (used by several states) that permits exemptions to those provisions.  States receiving CAPTA state grant funds will not be able to opt out of making CAPTA's federally required criminal record checks.
   
• Permitting CAPTA state grant funding to be used for updating CPS agency technology for tracking cases and to allow interstate and intrastate information exchange.  Although not a state grant eligibility requirement, this is an addition to Section 114(a) of CAPTA.

Providing a Greater Focus on Protection of Parental Rights

Congress has continued - as it did with its 1996 CAPTA amendments requiring state procedures for parents to appeal CPS abuse/neglect substantiations and compelling expungement of CPS information available to others when reports are unsubstantiated - to address the rights of parents subject to CPS investigations.  Two added conditions for state grant eligibility should lead to states focusing on caseworker training and practice guidelines related to how parents are treated in the investigative process.  These new mandates include:

• Having CPS "provisions and procedures" in place that require CPS caseworkers to tell parents of the "allegations made against" them at the "initial time of contact" with any parent against whom a child abuse/neglect report has been made, but in a way consistent with any state laws protecting anonymity and other rights of the person making the report; and
  
• Addressing CPS caseworker training, with a special focus on their "legal duties" and on ways to inform parents of their legal duties while protecting parents' "legal rights" and protecting the "safety of children and families" from initial time of contact during investigations, through the provision of treatment. 

Improving Training of Guardians Ad Litem and Attorneys for Children

Eight words were added to CAPTA's provision that mandates representation for children in child protective court proceedings.  Those words exhibit a concern for the need to elevate the quality of such advocacy.  Now, states receiving CAPTA state grant funds must certify that each court-appointed children's lawyer or GAL is a person "who has received training appropriate to the role."

Identifying Children in Child Welfare Agency Custody Transferred to Juvenile Justice Agencies

Added to the listing of permissible state uses of CAPTA funds, in Section 114(a) of the CAPTA reauthorization, is support of enhanced collaboration between a state's CPS and juvenile justice systems to improve services, treatment, and continuity as children transition from one system to another.  CAPTA's requirement of state data reports to the U.S. Department of Health and Human Services has been amended to mandate that states, to the maximum extent practicable, annually report on the "number of children under the care of the State child protection system who are transferred into the custody of the State juvenile justice system." 

In a related earlier federal law change, the 2002 reauthorization of the federal Juvenile Justice and Delinquency Prevention Act (Public Law 107-273, Division C, Title II, Subtitle B, Section 12202 et seq.) requires that states work on assuring that a juvenile offender's prior child welfare agency history and records are made available to the juvenile court.  Those records are also supposed to be incorporated into juvenile justice agency records for treatment planning purposes.  

Addressing the Needs of Child Maltreatment Victims with Disabilities

In the new CAPTA amendments, authority is provided to the U.S. Department of Health and Human Services to fund (through discretionary grants) projects that provide linkages between CPS and public health, mental health, and developmental disability agencies to help assure child victims of abuse and neglect have their "needs appropriately diagnosed and treated."  Consistent with that expression of concern for child maltreatment victims with unmet health, mental health, and developmental needs, the Children's Justice Act (CJA) part of CAPTA (42 U.S.C. §5106c) has been amended to add a new area of focus for state children's justice task force activities: "the handling of cases involving children with disabilities or serious health-related problems who are victims of abuse or neglect." 


The $17 million in CJA grants eligible states annually share can now be used to address these special groups of children, along with the earlier priorities of reducing child trauma in the investigative process, improving handing of child maltreatment fatality cases, and generally enhancing investigation and prosecution of cases.  These amendments will hopefully lead to new statewide collaborations between CPS, child advocacy, and disability support groups.

Promoting Evaluation and Services for Maltreated Infants and Toddlers-- 
Part C, IDEA Referrals Must Now be Made by CPS

Part C of the federal Individuals with Disabilities Education Act (originally titled Part H), was enacted in 1986 in reauthorization of the IDEA (then the Education for All Handicapped Children Act).  It entitles eligible young children (from birth through their third birthday) - who have a developmental delay or condition with a high probability of such delay - to a wide array of federally supported child services and case management assistance, as well as optional provision of help to parents to enhance their child's development.  For children deemed eligible after an evaluation, "early intervention services" are provided under what IDEA refers to as an Individualized Family Service Plan.  Some of the most common IDEA-supported Part C services are speech, language, and physical therapy, family counseling and home visits, medical care, and nursing and nutrition services.  For federal fiscal year 2002, state grant awards under Part C totaled over $408 million.

A large proportion of abused/neglected and foster children under age three were born premature and/or with low birth weight, have serious and chronic medical and dental problems, and developmental delays such as severe speech, language, and hearing disorders.  According to the latest data from the U.S. Department of Health and Human Services, infants and toddlers account for over 27.7% of substantiated child maltreatment victims (or almost 250,000 children annually). 

One of the recognized problems with Part C is that it only serves a small percentage of potentially eligible children.  Far greater early identification efforts have been advocated, and in response Congress added the new provision of CAPTA mandating CPS to make a Part C referral in all cases involving substantiated victims of child maltreatment under the age of three.

A similar proviso is included in the pending U.S. Senate bill (S. 1248, Section 637) to reauthorize the IDEA, and this would mandate state policies and procedures requiring such referrals as a new condition of state eligibility for Part C funding.

Possibly no other new change to CAPTA can have a greater impact than this mandatory Part C referral provision, if it is effectively implemented for maltreated children with the help of attorneys, judges, and other advocates.  For this to have the most meaningful effect on accessing the $400 million-plus federal program to help these children, CPS personnel, foster parents, family services providers, and legal/judicial system personnel will need to be trained on this new requirement, the Part C law and its regulations, and strategies for accessing applicable evaluation and treatment services.

To discuss issues raised by the new CAPTA amendments described above, feel free to contact Howard Davidson at davidsonha@staff.abanet.org