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Michele Estrin Gilman

excerpted from: Michele Estrin Gilman, The Poverty Defense, 47 University of Richmond Law Review 495 (January, 2013) (380 Footnotes)


      The poverty defense in civil and criminal child neglect cases proves that a poverty defense is not the impracticable pipedream charged by critics. In fact, the poverty defense has made a difference by keeping some families intact that would otherwise have their parent-child bonds permanently severed. Its consequences are concrete. Accordingly, a poverty defense may hold promise for other areas of the law and cannot be as easily dismissed as its critics assume. Although the statutes do not define the scope of the child neglect poverty defense, at least three theoretical approaches emerge from the case law: (1) coercion; (2) RSB; and (3) social forfeit. The cases demonstrate that, regardless of the form of the defense, it will not succeed unless courts have a rich understanding of the causes and consequences of poverty. Success does not mean that parents always win; there are some cases in which no amount of services or support will lead to acceptable levels of parenting. The safety and security of children must be paramount. Accordingly, success can result when poor families are not judged in isolation for their failings, but rather have their challenges and barriers taken into account within a larger societal context. Positive outcomes can include more reasonable treatment plans, greater commitment of state resources for families, and a more careful assessment of whether parental failings are sufficiently harmful to justify removal.

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