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.
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.
posted by eponcz at 2:45 PM
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