State Imposed Parenthood

Today in my constitutional law class we discussed the concept that a biological mother and father are granted parental rights in the U.S. through the legal structure, and that biology does not necessarily have to be the default family realtion. Specifically we discussed this issue in regards to DeShaney v. Winnebago County DSS (U.S. 1989) in which a father severely beat and permanently damaged his son after having been monitored by social services workers and having been awarded custody. The mother was suing for damages against Winnebago County.

In DeShaney, the Court declined to award damages, and in fact held that this case could not proceed under any theory of a violation of individual rights because it does not concern a state actor. Rather, the Court found that since it was the father (acting not on behalf of the state in any capacity) that hurt his son that it was an individual v. individual encounter, and therefore constitutuional remedies have no place.

There are many possible objections to this line of reasoning -- largely dealing with the framing of the relationship between the father and the boy. Since the state placed the child with the father and maintained a monitoring relationship, perhaps there could be found some intermediate state-action. The main objection with actually finding any sort of state action is in the status of this case as a state's omission to act. Such an omission has not been found to trigger the protection of constitutuional rights.

The inherently legal and state-mandated nature of every parental relationship then could be called into question if in fact the omission to act would trigger such a protection of constitutuional rights.

In this entire discussion, however, the rights and needs of the child fall short of being recognized. Perhaps a civil remedy against the county is not warranted, however, there is a wrong being committed against those youths inadequately served. As the dissent in DeShaney pointed out -- the governmental institutuions step in and proport to protect children, and thus might do away with any other means that a community would take to do so -- thus, the child is left without protection from the omissions to act by society.

An E-mail Conversation

This is an exerpt from an e-mail about child-related issues (specifically abuse) that I recieved:

"Right now, my school is under investigation by the Welfare Dept because I asked a teacher to come into school clean, on time, and prepared to teach, and she quit and then called the Welfare Dept and made erroneous complaints. Should this be allowed? Using the state as a means to take revenge on a former employee is a class A misdemeanor. Is there a balance there someplace?"

My response:

"I am terribly sorry that your school is under investigation by the Welfare Dept. Interestingly that situation is similar to a discussion in a class I just finished at school. It sounds almost like the concern of a false accusation of rape. There is really no easy way to verify that it is false and once the accusation is made much of the damage is done -- even if it is shown to be false later. Just as with the rape situation, however, it is scary to make the reporting more difficult because in actual instances of abuse (or rape), it is important to have reporting taken seriously. Really it is a lose-lose situation."

Caged Animals

How is it that Michael and Sharen Gravelle were able to adopt children?

They adopted 11 children with physical and educational disabilities. They put those 11 children in cages -- with alarms -- and called them beds. Special needs children are particularly difficult to place in adoptive homes, fine, but that does not mean that there should be decreased monitoring and care in selecting the homes. In addition to the 11 special needs children, there are at least two natural and now grown children who are testifying about abuse, mistreatment and a childhood of misery.

In the world of child advocacy large-scale reform only usually happens after mass-media coverage of some awful injustice. For example, New York City had a major overhaul of their child protective agency after the much publicized death of Elisa Izquierdo. Let us hope that cages and alarms are enough -- since thankfully these children are still alive -- to catch some political action and make some positive changes for children in the system.

Amenable to Treatment?

I've made various references to juvenile law cases in the news -- and here I make yet another. A 14-year old boy murdered his step mother, his 13-year old step sister and his father. The news stories present that the choices of "treatment" are either commitment until age 21 or inprisonment in adult prison for up to 50 years.

It is not clear to me why there has to be such a dichotomy -- why there needs to be either "juvenile" punishments or adult punishments. The juvenile justice system was initially put into place to ensure that young offenders are not subject to adult punishments (fueld by the hanging of a boy less than 10 for a murder). Since the creation of the juvenile justice system due process rights (or many of them) were awarded to youths (via In re Gault) and debate intensified about if youths with adult rights get adult punishments.

The juvenile justice system is in place -- still with the intent to help rehabilitate rather than punish youthful offenders -- then, why is it that the choices are either results that seem inadequate or adult trials that will most likely be too harsh? Why can't this young man, somehow, fit into the legal system in a way that fits his crime?

Boot Camp

The recent story of the boy who was "beaten" at boot camp and then died raises questions about juvenile adjudication. The articles indicate that a blood disease, not physical trauma, was the proximate cause of his death. This tragedy, thought it may be unrelated to his means of incarceration, is shedding light and sparking debate over the merits of such facilities.

This boot camp was explained as an alternative to incarceration. Such juvenile facilities are often referred to as an alternative to being "locked up," while in reality they are still a prison of sorts -- just by another name (such as a "residential school"). There may very well be some alternatives to prison that can provide juveniles with more opportunities for success in the future, but there should be a larger effort to ensure that juveniles are not condemned to failure upon their adjudication as delinquent.

Facilities such as this boot camp, and even more straightforward juvenile jails must provide education. Perhaps, removed from the distractions of their daily lives, these troubled youths can learn, grow, and better themselves. Since the early 1900s with the advent of the juvenile justice system the idea was not to punish youths, but to have the state act as parens patriae -- where has that focus gone?

While it seems that this child, unfortunately, was the victim of a horrible disease, the conversations have begun. Reconsideration of the facilities for juveniles is a real concern for a voice-less class in our society.

Lawyers as Advocates

Last night at my child advocacy policy workshop the discussion centered around intensive early home visitation programs. This strategy has been substantiated by the intensive social scientific reviews of Dr. Olds over the last 30 years. Now it is at the slow implementation phase nation-wide.

In order to take the successful results from double-blind randomized experiments and replicate them, there is a lot more than child-advocacy and legal know-how necessary. It is becoming increasingly understandable that progress is slow and limited.

One of the speakers focused her presentation on describing how lawyers can effectuate change. It is not enough to have a passion, become an expert and get the credentials -- rather, political connections, know-how and to a certain extent luck are all necessary to ensure that any program can be implemented (or really recieve necessary funding).

As I learn more about child advocacy it becomes increasingly clear how much more I have to learn in order to hope to make any change. Thankfully, there seems to be a community of skilled and talented individuals at the ready to instruct and participate in the successful implementation of the few strategies that seem capable of preventing the vicious cycle of child abuse and neglect.

Children as Chattel

I'm beginning a deeper inquiry into the historical development of the legal status of children. I'm excited to encounter their treatment as adults (depicted in art museums), their status as nothing more than chattel and the development of their custody.

As the patriarchal household met its demise, children moved from being property of the household (and necessarily the father head of house), to the assumed custody of mothers. There is a significant modern trend among fathers displaced by maternal custody trying to regain some status -- equal at least -- in the lives of their children.

Hopefully in the weeks that come I will have more interesting tid-bits to include, as this area is fascinating.

Treat Kids Like Kids

On cnn.com there's a story about a 6 year old boy who has been accused of sexual harassment. He allegedly put his fingers inside the waistband of a female classmate and was suspended and has since been transferred to a different school.

The boy's mother exclaimed that she couldn't even explain what he had done because he is too young to understand. (How is it that sexual harassment is supposed to be explained to a 6-year old?)

This is ridiculous. Great, the school has since apologized. The issue remains of how this went so far? There is a strict sexual harassment policy at that school -- fine, but for a 6-year old? Didn't anyone involved stop to think for a second? This boy, at the age of 6, was basically branded a sexual predator. Wonderful.

There have long been many considerations for children because of their decreased capacities as compared with adults. There are many restrictions on them (I bet this boy isn't allowed to stay home alone), and many protections for them. How is it that such an adult offense was pushed upon a boy who was playing with a friend? How did this get so out of hand that a tiny incident will probably be ingrained on both the boy and the little girl "victim"?

Someone really needed to stop, take a step back and think for a minute.

Early Home Visitation

There is disagreement in the child advocacy community about the merits of early home visitation. Briefly, early home visitation is a (largely experimental) strategy of providing pre-natal or post-birth care, training and/or surveillance to prevent child abuse. It imparts parenting skills to new parents who may not have had good parenting examples of their own. The debate is heated especially about funding, recruitment of participants, and family privacy and sanctity issues.

I find it particularly distressing that the needs of children are so often put on the back burner because of some largely recognized and respected realm of privacy for the family and the home. While privacy has been asserted as a foundational principle of the U.S. (interestingly not mentioned in the Constitution, but implied since drafting), I do not think that privacy is more important than the safety of our nation's children.

Maybe I'd feel differently if officials were to enter my home and monitor my parenting skills (now my parenting skills extend as far as my puppy, but hypothetically for children). Early visitation programs are not solely based on surveillance -- they have a large instructional and support element as well. Therefore, I'd like to think that as a new parent I would welcome help, instruction, example and support if I could not get it elsewhere (from my parents -- who would really rather that I had a kid than a puppy, but they'll have to wait).

I find it frustrating that certain social norms (privacy specifically) are embedded and preordain the rights of individuals while limiting those of others.

Child Advocacy -- Not Political?

This year I'm in a year-long course entitled the Child Advocacy Policy Workshop. It is a speaker series that culminates in a quasi-thought piece later this semester. Speakers with different perspectives on child advocacy have maintained that child advocacy is not political: that the protection of children crosses the political borders and embraces all who commit themselves to the protection of children.

This idea sounds well and good, however, how is "protection" defined? Who decides where the line is drawn between corporal punishment and abuse? Could a schedule filled with ballet, violin, French and etiquette classes be considered abusive for a child developing an ulcer before the age of 10? What about youths involved in extreme athletics (gymnasts for example)? Maybe these activities are not particularly political, but what happens if the issues turn religious? Doesn't any judgment call inevitably turn political?

Most striking, though, is the claim that there is an absence of politics while at the same time the literature on children's rights is filled with references to children's rights via anti-abortion arguments. Some argue that the debate over abortion is a children's issue. How surprising is it for a student to venture into the realm of child advocacy (being told it is apolitical) only to discover that the vast majority of the literature on the Internet about children's rights is actually about abortion?

Children's Federalist Issues

Before my Constitutional Law class today state v. federal debates floated past and I never really cared to latch on. One point caught my interest though -- without the judicial review capacities of the Supreme Court over state issues, unrepresented minorities could effectively lose any refuge within the government. That is, because state judges are often elected, all three branches would potentially be more purely democratic and would leave no safe-haven for those (such as children) without a voice in government.

I always thought that democracy is supreme. Democracy is traditionally a word of pride, freedom, justice and patriotism. At its root, though, democracy is majority rule -- inherently unequal and potentially unjust. The powers of the judiciary bring the issues of the minority (a la Brown v. Board) into the lime-light and out of the hands of the voting majority.

Children do not have the right to vote. I'm not positing that they should (there would be a whole host of issues beyond children's rights at stake -- possibly multiple votes for parents with multiple children, etc.), however, this does not mean that the interests of a non-voting group should be excluded from the government.

The Start

I'd like this blog to be a place to post my thoughts and discoveries about children's law and child advocacy. More importantly, however, I'd like to get input from others who share my interest and curiosity in children's law.

I'm doing some specific research this semester in school, but generally I'll be considering at least two different (and at least at this point in my consideration -- unrelated) angles:
(1) A constitutional survey of children's rights and how they've developed (mostly via In Re Gault and what lead up to and resulted from that decision).
(2) An economic consideration of the treatment of children's issues by the government (specifically looking at the use of federal funding as an incentive and a punishment for state children's welfare agencies).

So please, feel free to contribute any ideas, comments or suggestions. Hopefully through the deeper study and consideration of children's rights and laws we can find a way to give every child in the U.S. a safe and nurturing home.