Children's Law is Not a Subset of Women's Studies

In my comparative family law class yesterday, a classmate of mine asked this question: is family law a smaller subsection of women's studies?

My professor gave a comprehensive response that centered on the study of the family from the female point of view, and the waxing and waning of this perspective. This discussion, and almost all of the class up until that point, considered the roles of the husband/father and wife/mother -- without much separate consideration of the child.

Along similar lines, I've often encountered assumptions that my interest in children's law is somehow connected to feminism. This semester I enrolled in a heavily feminist reading group so that I can finally get a better handle on what others assume I'm advocating.

Feminism is a lot of things, but children's law cannot be categorically swallowed up. Children's law is not feminism.

Those advocating strictly for children's rights are often at odds with traditional feminist thinking. For example, a staunch child advocate might propose removing children earlier from abusive/neglectful homes. This position tends to be contrary to women's interests because these kids will often be removed from single parent homes -- often headed by single moms.

Some child advocates take a staunch feminist position saying that it is in the best interest of the child to remain with the mother. This protects mothers' hold on their children and purports to protect children.

I think that mothers (and fathers) are almost always the best people to raise their children. I think that if one claims to be a child advocate, however, one should recognize that this is not 100%. Sometimes the child's best interests cannot be recognized within the family. Sometimes families need help to protect their own.

Children's law should not be considered a subset of women's studies.

The Tragic Murder of a Social Worker

Tragically, a mother and her boyfriend murdered a social worker who was assigned to the case of their child -- who was deemed neglected. (Read the article.) Now the mother, her boyfriend, and their child are all missing.

This situation illuminates the dangerous nature of the child protective services case workers' jobs. These brave men and women enter homes to remove children, prevent physical abuse, and much more.

In writing about children's rights and laws I find it easy to be very critical of child protective services. Often children who are in danger are not removed from home. This could be for many reasons -- maybe they weren't reported, maybe the case worker thought the birth home was better than the alternative, maybe no caseworker ever made it to that home. Amongst my criticisms, though, I think it is important to recognize just how hard this job really would be to carry out satisfactorily.

The Supreme Court briefly touched on the difficulty of the social worker's job in DeShaney v. Winnebago County. I've written about this case various times -- but always from the point of view of the child. The Court was concerned that by putting a higher burden on child protective services, the case workers would be darned if they do, and darned if they don't: if they remove the child from a home that was really OK, then the case worker could be open to liability from the parents, and if they fail to remove a child, then the case worker would potentially have been open to liability to the child.

While I recognize that it would be nearly impossible to get it "right" each time -- only removing in dangerous situations, and in every dangerous situation -- I still think that something more needs to happen. Case workers have a very difficult job. Maybe the problem isn't the case workers -- maybe it is the support, training, authority, options, services, etc. available for the case workers.

I hope that in the aftermath of this murder child protective services might again be reconsidered and the shortcomings acknowledged. If social workers/case workers are so vulnerable when enforcing removal orders, how can these children be adequately served? I hope that a sensible balance can be reached where the protection of children doesn't come at the expense of dedicated adults' lives, but where the services are not limited by the dangers that adequately carrying out the job can pose.

Prevention of Animal Cruelty -- the Origins of Child Advocacy

I learned in my children's law class that child advocacy in the United States grew out of statutes against cruelty to animals. I found this fact particularly interesting.

In 1874, a little girl named Mary Ellen was severely beaten by her foster mother. Neighbors were outraged, but there was no apparent legal recourse against Mary Ellen's abuser. A crafty social worker devised a scheme to liken children to animals and to proceed under a theory of the prevention of cruelty to animals. (Read more about Mary Ellen)

Upon first blush, I was outraged that animals were protected from beatings before children. How could a "civil" society recognize that animals might be abused, but not human children? After some consideration, however, I thought it quite interesting that perhaps the tendency to explicitly protect animals came about because a higher standard of care for animals is not implicitly understood. Perhaps society functioned under the assumption that families would protect their children -- that there would be no need to intervene into the family and mandate the protection of children.

I find this discussion particularly interesting when applied to the facts of DeShaney v. Winnebago County (U.S. 1989). (Read the DeShaney case)
I've blogged about this case before, but I think that the facts surrounding Joshua DeShaney and Mary Ellen's horrible abuse are interestingly related. Joshua DeShaney was beaten into severe retardation by his father. Joshua DeShaney's mother sought a cause of action against the state claiming that by placing Joshua in his father's custody, the state affirmatively acted and should therefore be liable for Joshua's injuries. The Supreme Court rejected this reasoning and held that there was no viable cause of action against the state for harm caused by a private actor (like Joshua's dad).

The DeShaney case brings up interesting issues about the proper role and responsibilities of a child protection agency sponsored by the state. The dissent in DeShaney was critical of the characterization of the state's involvement as merely passive -- rather, the dissent presented the child protective agency's involvement as affirmative. One of the dissent's major points was that the state's affirmative efforts to protect children would discourage others in the community from stepping in and protecting the child from an abusive family/parent.

On the other hand, when Mary Ellen was severely beaten, there was no state-sanctioned child protective agency and indeed the community would have been Mary Ellen's only protective recourse had the social worker not thought to apply animal cruelty statutes.

While Joshua DeShaney and Mary Ellen were two very different children living at two very different times, they shared common aweful life experiences. Together these cases demonstrate that leaving the resolution of child abuse to the community will not work, and that an insufficiently active child welfare agency will also not adequately protect all children.

I am left puzzled. There is no clear solution, but hopefully it will not take too many abused children like Joshua and Marry Ellen to get the child protective services working.

Does Unadoption Signal a New Lower-Tier Adoption?

In Virginia a long time foster mother would like to unadopt a young man she recently adopted. (Read Article). The mom claims that her adopted son came along with a host of issues that she was not aware of when she adopted him. The mom claims that she only recently found out about his past -- being abused by an alcoholic mother, possibly having psychological problems, etc. The mom claims that she was only told that he was hyperactive at adoption.

It turns out that her adopted son molested two young children. As a result, his adoptive mom (a long time foster mom) can no longer foster other children while he is in the house. This raises a particularly interesting question: if she can "unadopt" her son, does this signal a new lower-tier adoption?

As the law stands now, an adopted child is just as much someone's child as a biological child. This was not always the case, and it is still not necessarily 100%, but it is almost certainly the way the system works. With biological child-bearing a parent is not aware of "who" they are getting. Certainly they may be more knowledgeable about the biological make-up of the child -- various genetic possibilities -- but the parents do not know if their child will grow up to be psychologically challenged or a Nobel Price winner. Parents need to deal with and work with the children they have -- not the children they wished they had.

On the other hand, it is a bad precedent to set for adoption workers to mislead potential adoptive parents as to the truth about a child. Granted, these workers may have warned the adoptive mom, the workers may not have been aware of many of the issues, but let's just hope that there was no malintent involved.

I'm concerned about the idea that parents can adopt a child and if that child is not exactly what they hoped and dreamed for that the parents can return the child. This denigrates adoption, parenthood, and the security that adopted children obtain.

Project Idea

I'm at the beginning stages for my final paper for law school. Yesterday I firmed up my topic, and I want to write some of it out and post it to get any initial reaction or just to start the debate.

I'm curious about the legal ramifications for and treatment of juveniles acting like adults. This would apply to issues like juvenile abortion and juvenile delinquency. I'm also planning on expanding my inquiry into issues I've become interested in because of this blog. Namely, I'll be considering the ramifications of youths having wider access to society, making a name for themselves, and interacting in an adult manner on the internet. I think that this portion of the inquiry could be the most rewarding (and interesting).

In the coming weeks I'll begin my preliminary research, talk with professors, and do some general searching to narrow my topic.

I'm very excited about this topic, though, because I feel that in an ever maturing world for juveniles the law is in a perilous positions. Roper v. Simmons (U.S. 2005) outlawed the death penalty for juveniles. This explicitly reinforces the legal treatment of juveniles as separate from adults (well, unless the Court is seeking to outlaw the death penalty all together and this was just the first step). I'm curious how this fits in with the increasing adultification of juveniles.