Published in NH Bar News - 8/18/2021
Child abuse imposes untold suffering, both physical and emotional, on each child it impacts. According to the Center for Disease Control:
"In fiscal year 2008, U.S. state and local child protective services (CPS) received more than 3 million reports of children being abused or neglected – or about 6 complaints per minute, every day. An estimated 772,000 children were classified by CPS authorities as being maltreated and 1,740 children aged 0 to 17 died from abuse and neglect in 2008.1"
That abuse also imposes an enormous financial cost on the public. According to a study written for the Centers for Disease Control and Prevention:
"[the] estimated average lifetime cost per victim of nonfatal child maltreatment is $210,012 in 2010 dollars, including $32,648 in childhood health care costs; $10,530 in adult medical costs; $144,360 in productivity losses; $7,728 in child welfare costs; $6,747 in criminal justice costs; and $7,999 in special education costs. The estimated average lifetime cost per death is $1,272,800, including $14,100 in medical costs and $1,258,800 in productivity losses. The total lifetime economic burden resulting from new cases of fatal and nonfatal child maltreatment in the United States in 2008 is approximately $124 billion. In sensitivity analysis, the total burden is estimated to be as large as $585 billion."
The economic burden of child maltreatment in the United States and implication for prevention, Fang eg al, Child Abuse & Neglect 36 (2012) 156-165. This area is plainly one where investment of public dollars early on to avoid abuse and neglect may pay dividends in terms of reduced costs later. In other words, if the public succeeds through intervention in avoiding cases of childhood abuse and neglect it may avoid significant medical, criminal justice, welfare and loss of opportunity costs later that more than offset the costs of intervention. And that is before considering the enormous personal cost to those kids whose potential for success in life id derailed before they even get started.
New Hampshire's Supreme Court in Carrigan v. New Hampshire Dept. Of Health and Human Servs., July 20, 2021, recently addressed the difficult question of who should decide how public resources can best be deployed in response to the policy issued underscored by statistics like those cited above. The Carrigan plaintiff, a Department employee with an insider's view, alleged that "the State has failed to abide by its mandatory, substantive, and procedural obligations to respond to and protect children who are subject to...child abuse and neglect." Carrigan also asserted that the Department had engaged in "unconstitutional budgetary decision-making in the face of uncontroverted evidence regarding the connection between the absence of resources and the inability of New Hampshire to abide by its mandated legal obligations." Carrigan was of the opinion that the State should be spending more and more effectively to reduce the human and financial toll inflicted upon the State's most vulnerable children.
The Court concluded that the case Carrigan presented was not one it could decide because she lacked standing. In so ruling, the Court noted that, in general, standing requires that the plaintiff establish "a legal injury against which the law was designed to protect." In particular, "[a] party must allege a concrete, personal injury, implicating legal or equitable rights, with regard to an actual, not hypothetical, dispute, which is capable of judicial redress by a favorable decision." Carrigan, however, was not herself "injured" in the sense usually required for standing.
Putting aside general notions of standing, however, Carrigan argued that N.H. CONST. pt.1, art. 8, allows taxpayer standing to challenge State and political subdivision approval to spend "public funds in violation of a law, ordinance, or constitutional provision" enabled her to pursue her lawsuit. The Supreme Court rejected Carrigan's standing argument, reasoning that permitting a taxpayer to challenge a government action authorizing the expenditure of funds is different from allowing the courts to "audit a governmental body to determine whether its policy decisions regarding the allocation of resources are prudent or sufficient to comply with legal requirements." Thus was Carrigan's effort to force the Department to better address child abuse and neglect squelched.
If taxpayers are without standing to force DCYF's greater focus on the prevention of child abuse and neglect, then who has that standing, or is the only recourse political? How about the abused children themselves, do they have recourse to address the "absence of resources and the inability of New Hampshire to abide by its mandated legal obligations?" In the vast majority of such cases, where the State fails to act to protect a child, or acts ineffectually because of a lack of staff and/or training, the State's answer is: No.
The State has argued in a number of pending cases that the law imposes upon it no duty to control the conduct of third parties to prevent them from causing physical harm to another, hence the government cannot be held liable where it fails to prevent a third party from harming a child. The child's recourse, if any, argues the State is against the wrongdoer, often the child's parent. Besides, the State contends, the courts should not be in the business of imposing liability on the government that may force the Department's reallocation of resources and priorities. DCYF, it argues, should not be impressed into serving as the insurer of all children's safety. Moreover, the State argues, the imposition of liability against DCYF could, at least subtlety, encourage child protective service workers to err on the side of removing children from their parents where there is even a remote prospect of a safety risk (in order to avoid liability), thereby undermining the competing legislative goal of keeping families together, and therefore sometimes needlessly inflicting emotional distress on the removed child.
Most of the other states' highest courts that have considered these, and other similar arguments, have sided with imposing liability against the state. Rather than framing the cause of action as one of the government failing to protect against third party malefactors, the courts find governmental liability predicated on the "special relationship" created between the state and the children who depend on it for protection. For example, in New Hampshire, the law requires the report of suspected child abuse the New Hampshire Department of Health and Human Servies web site poses the question to the public: "What do I do if I suspect child abuse or neglect?" The answer: "NH Law requires any person who suspects that a child under age 18 has been abused or neglected must report that suspicion immediately to DCYF." Put otherwise, abuse cases (and the responsibility for protecting abused children" are channeled to DCYF from reporters like nurses, doctors, neighbors, school guidance counselors, the police, clergy and others. Mandatory reporting and the balance of the network of child protection statutes creates a "special relationship" and therefore liability.
The imposition of liability provides compensation to the child harmed by the Department's neglect of duty. Perhaps most important, liability also imposes a cost on negligent behavior. So, while taxpayers do not have standing to have the courts address perceived deficiencies in the funding of DCYF, one can hope that a similar message can be conveyed by the tort system. Liability should provide one more reason among many for the legislature to fund fully the State's efforts to protect the community's most vulnerable.
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