FIJ Quarterly - Summer 2022 Edition

some point during their childhoods. 27 Similarly, in Nebraska, there is significant disproportionality by race in hotline reports. 28 The potential for families to be subjected to CPS investigations in Nebraska is even greater because Nebraska is one of 18 states with universal mandatory reporting, in which all persons, not only certain professionals, are required to report suspected child abuse or neglect, subject to criminal penalties. 29 As a result, in 2018, only five percent of the total reports to the hotline were ultimately substantiated. 30 Moreover, the vast majority of substantiated cases (80 percent of the 5 percent) involved physical neglect, which is a failure to meet the child’s basic needs and very often is an economic issue for families. 31 Furthermore, Nebraska’s statutory definition of neglect is overbroad and subject to bias. For example, current Nebraska law prohibits a child from being without “proper care” or control 32 — which is open to interpretation and the second-guessing of reasonable parents’ decisions. 33 Finally, our current response to substance use disorder takes a carceral rather than a public health approach. This is particularly true with regard to prenatal drug use. Nebraska law does not specifically criminalize prenatal drug use, and its mandatory reporting law does not specifically apply to unborn children/fetuses, yet pregnant people are often drug tested, sometimes without their consent, and their results are used as a basis for referral to CPS in potential violation of the patient’s 4th amendment rights. 34

Next Steps at the Level of Law and Policy to Invest in Community-Based Solutions

While the movement in Nebraska toward a community-owned child and family well-being system is a model for the country—there is more that needs to be done to restructure a system that has been built on systemic racism, family regulation, and the traumatic separation of children from their families. Communities are the foundation, but they can only go so far, and solutions also are needed at the level of law and policy to support their efforts. Both nationally and locally, several specific, research-based policy changes and investments in community-based resources should be considered:

Take a Step Towards Reparations in the Form of Universal Basic Income/Direct Cash Transfers

System-involved black and brown families have faced decades of discriminatory policies and practices, and their needs have often been overlooked by a system that has remained punitive rather than restorative. Concrete financial supports, such as universal basic income or direct cash ______________ 27 Roberts, Dorothy E. Torn Apart: How the Child Welfare System Destroys Black Families - And How Abolition Can Build A Safer World . Basic Books, 2022, p. 37. 28 Helvey, Sarah, Summers, Juliet, and Conway, Sean. “Universal Mandatory Reporting of Suspected Child Abuse and Neglect in Nebraska: Current Law and Future Considerations.” The Nebraska Lawyer . July/August 2020, p. 11. https://cdn.ymaws. com/ 29 Neb. Rev. Stat. § 28-106 (2019); Neb. Rev. Stat. § 28-711 (2019); Neb. Rev. Stat. § 28-717 (2019); Singley, Steven J. “Failure to Report Suspected Child Abuse: Civil Liability of Mandated Reporters.” J. Juv. L. 19, 236, 1998. 30 Voices for Children in Nebraska. Kids Count in Nebraska 2019 . 2020, p. 63. research/kids-count/#:~:text=in%20Nebraska%20Reports%3A-,Kids%20Count%202019,-%7C%20Kids%20Count%202018. Accessed 1 May 2022. 31 Voices for Children in Nebraska. Kids Count in Nebraska 2019 . 2020, p. 64. research/kids-count/#:~:text=in%20Nebraska%20Reports%3A-,Kids%20Count%202019,-%7C%20Kids%20Count%202018. Accessed 1 May 2022. 32 Neb. Rev. Stat. § 43-247(3)(a). 33 Current Nebraska law at Neb. Rev. Stat. § 28-707 also criminalizes parents who permit their child to be placed in a situation that endangers their mental health - and parents of adolescents may feel that some everyday experiences could meet this definition. We also know - in Nebraska and across the country - that neglect is often confused with poverty. This same Nebraska statute criminalizes parents who negligently cause or permit their child to be “deprived of necessary food, clothing, shelter, or care” without any requirement of intent or ability to provide such care. 34 Ferguson v. City of Charleston , 532 U.S. 67 (2001).

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