Children and the Law Outline –Spring 2012–Thompson
Exam Notes:
4 hours 5 questions- do three. Each are worth 25 points.
Each question has 2/3 different topics to discuss
Abuse/Neglect/dependency/best interests/delinquency are all statutory and should be provided since she said she was giving us the statutes BUT check them anyways…she’s an idiot. Use case law from class notes/book outline to build arguments.
Look up mandated reporter stuff?
I. Mandated reporters: Professionals who may work with children in the course of their every day activities. Assumed to be in the best position to recognize and report child abuse. “early warning system”. Protect the child, stabilize and preserve the family so that it may remain intact.
1) medical personnel 2) school personnel 3) social service/mental health personnel, law enforcement , coroner/medical examiner, child care, clergy
2) must report an allegation if harm , report is taken DCFS starts investigation,
1) Abused and Neglected Child Reporting Act: mandates the requirements of the mandated reporter:
a) requires to report suspected child abuse or neglect immediately.
b) privilege communications between professional and client in not grounds for failure to report.
c) willful failure to report is a misdemeanor (first violation) or class 4 felony (2nd/subsequent violation) May be subject to penalties by regulatory boards (ABA)
d) you may have to testify regarding any incident you report if the case becomes subject to legal/judicial action.
e) State law protects the identity of mandated reporters & given immunity from legal liability as a result of reports you make in good faith.
1) history
2) Dependency/truancy/emancipate
3) neglect-abuse-mandated reporters-termination-adoption and ICWA
4) education-free speech, illegal immigrants, iep, zero tolerance.
5) delinquency
What is a child
Juvenile court system/theories
Best interests-statute will be provided.
Child neglect/endangerment
Termination-not a big deal
Emancipation-not a big deal
Child abuse-significant
Mandated reporting—out of dcfs materials??
–Who is mandated and why? What happens if you do not report?
Religion/physical/mental health
Education-focus on free speech rights in school. Use more case law.
Truancy-
Dependency
ICWA
I. Introduction
A. human beings have long maturation/development period in which they are dependent on
adults/guardians for care
B. transition from total dependence to independence – why is it that human young have such a long
time getting to the point where they are able to take care of themselves?
1. they are physically small and weak for a long period of time from birth to adolescence
2. there are legal/social constraints which keep children from doing many of the things that adults can do
3. children lack experience and maturity, which leads to poorer judgment (note this may be partially because our society fosters dependence from an early age
4. children have different rules for contracts because they are perceived as vulnerable
C. three possible decision makers for the child:
1. the state
2. the parent
3. the child itself
D. chronological age laws – government allows children to do certain things at certain ages because the government believes that the child lacks maturity before a certain age – state statutes limit what children can do (ex. drinking, smoking, driving and voting)
1. no regard for individualized characteristics such as physical maturity, mental capacity, education, experience or accomplishment
2. common law age of majority is 21, but 14 is the common law age under which children are responsible for their criminal conduct – note that 26th Amendment lowers legal voting age from 21 to 18 during the Vietnam War
3. alternatives to chronological age rules?
a. could require children to make some kind of demonstration of competency/maturity, but this would be very difficult to administer
b. minors could go before a court and be deemed mature enough to make certain decisions by a judge (note that this is often what happens in the context of abortion)
c. could make parents responsible for their children’s decisions
E. Individual standards for assessing maturity
1. Melton – argues that there is a good deal of social science research which reinforces the notion that children should be able to make their own decisions (evidence that minors develop same level of competency as adults between 11 and 14)
2. Scott – argues that this same social science research is too narrow and exaggerated the results, because it only represents capacity for reasoning and understanding – minors may have cognitive ability to make certain decisions, but they may not have the maturity to make good judgment calls – ignores that there are other variables that come into play with adolescents, including:
a. peer pressure – research suggests that adolescents are more susceptible to peer pressure (social conformity)
b. risk aversion – adolescents may be less risk averse, because it is more difficult for them to appreciate the long term consequences of their actions (because they have not lived that long), and they are more focused on immediate gratification (ironically, however, adolescents are less risk averse than adults when it comes to being non-conformists)
c. Scott argues that the evidence Melton relies on is tentative at best – lesson may be that lawyers should not rely on social science research at all
F. Paternalism v. Personhood Theories
1. note that courts are not consistent in this area, and have proceeded in a piecemeal fashion – note the tension and overlap in the cases between the protectionist and personhood theories
2. protectionist/paternalism theory –
a. this is the more traditional of the two theories, based on the perceived vulnerability of children
b. Bruce Hafen – argues that children should not be “abandoned to their righ
he state
4.) see also the Bill of Rights for Children on p. 25 – although such things are fashionable, the Children’s Bill of Rights does not seem that workable, and the language is very vague and ambiguous
5.) premise is that children are people too, they are entitled to assert individual interest in their own rights, to have a fair consideration given to their claims, and to have their best interests judged in terms of pragmatic consequences
d. query: if children are given adult rights, shouldn’t they also be subjected to adult responsibilities?
4. mixed theories – perhaps the most realistic approach – allow for semi-autonomy in some areas but not others – allows for phasing in of liberty interests
a. model of semi-autonomy where adolescents are permitted to learn how to make independent choices but are at the same time, shielded from the full burden of adult responsibilities and consequences that flow from certain of those choices
II. The Child and the Family
A. The interests of the parent, the child, and the state, and the Meyer, Pierce, Prince trilogy
1. there once was a time when the state had no involvement in the parent-child relationship, but eventually the state starts to assert some interest in the development, maturity and protection of children
a. economic reasons – state wants an educated citizenry because it wants a productive society – does not want people to become wards of the state
b. political reasons – state wants people to be educated enough to participate in the political process – want people to be able to make informed decisions so that they are not pulled in directions by sound bytes and demagogues
c. social reasons – state may also have some sense of social responsibility to protect its young, weak and vulnerable
2. Meyer v. Nebraska
a. state statute says that children may not be taught in a language other than English before they reach the eighth grade – possible state reasons behind statute:
1.) more idyllic reason is that there is state interest in growing number of immigrants to become proficient in the English language – there was also some support for the idea that it may be confusing for young person to learn a second language at an early age (although this line of thinking has since been discounted)
2.) more insidious reason is anti-German, anti-immigrant sentiment in the wake of WWI – want to preserve the English language in the wake of the anti-German hysteria following WWI
