Children and the Law Outline Fall 2014
Chapter 1: The Status, Rights and Obligations of Children
· Books themes:
o The delicate interrelationship of rights and responsibilities among children, parents, and government. Who holds the rights? Who holds the responsibilities?
§ Tension b/w children’s rights and children’s responsibilities
§ Questions posed ie at what point does the state become the prosecutor or does it always remain the parent?
o Perceptions of children’s competence as a basis for parental authority and government regulation
§ And how does this relate to the roles and responsibilities given to the children, parents and government
o The role of the child’s lawyer
§ What level of inquiry should be used to advocate and help the client (ie the child)
o What is the relief being sought? And who does this benefit?
A. Court Systems
Contemporary Conditions and the Role of Lawyers
· Very poor and steadily declining especially depending on race
o Children who are born poor will continue to be poor as adults (persistence of poverty)
o Children born into poverty have a high rate of high school drop out
o High level of inadequate and uninformed child care
o Low IQ problems especially for those born into poverty
o Long term employment problems
o Behavioral problems
o High rate of teen birth
o High level of stress on families lead to problems for the children in the development
Contemporary Juvenile and Family Court Systems
· Children may appear in court w/ a retained counsel, but not in high numbers b/c lawyers feel such kids are coming from poor backgrounds and it wouldn’t be a lucrative business
· Some are private practitioners who appear pro bono or for compensation rates at established for court appointment
· Public defends, legal services lawyers, and social service agencies also represent the children
1) Juvenile Court: a court devoted to the proceedings concerning children
· In some states it’s a distinct trial court, in other states the general jurisdiction trial court has juvenile jurisdiction and in other places the juvenile court is a separate division of the general jurisdiction of the trial such (ie the juvenile division of superior court)
· Juvenile courts have exclusive original jurisdiction in 4 major category proceedings:
o Abuse and Neglect: civil abuse and neglect proceedings determine the state’s claims that a parent or custodian:
§ (1) Has inflicted physical, sexual or emotional maltreatment on the child,
§ (2) Has failed to provide the child a minimal level of support, education, nutrition, or medical or other care necessary for the child’s well-being
o Adoption: adoption generally terminates the parent-child relationship b/w the child and both biological parents, and creates a new parent-child relationship b/w the child and adoptive parents
§ A child may be adopted only where parental rights have been terminated by consent or over the parent’s object as being in the best interest of the child
o Status offenses: a status offense is conduct sanctionable only where the person committing it is a minor
§ Ex: truancy, running away from home, and ungovernability (when a child is acting beyond the control of the parents)
o Delinquency: a delinquency proceeding alleges that the juvenile has committed an act that would be a felony or misdemeanor if committed by an adult
2) Unified Family Courts (IDV): Some states and local jurisdictions have replaced the juvenile court w/ a unified family court
· Purpose: Most family disputes are not discrete legal events, but ongoing social and emotional processes” that require “interventions that are collaborative, holistic, and interdisciplinary, b/c these are the types of interventions most likely to address the families’ underlying dysfunction and emotional needs”
· Family courts jurisdiction includes the above four listed categories but also matters typically heard in general jurisdiction courts (ie divorce, paternity suits, emancipation, etc.)
· Proponents: enhances consistency and efficiency of courts (not having to go to multiple courts and have multiple judges preside over case)
· Critics: may produce “due process concerns that arise w/ judicial overfamiliarity w/ cases” and may “create difficult legal issues by mixing the civil and criminal jurisdiction of a court”
· NY has one
B. ACE Study
What can attorney’s for the child learn from the Adverse Childhood Experiences study?
Background to ACE Study
· Dr Vincent Felitti, (1985) had a weight lose theory that obese people who were successfully losing weight in Kaiser Permanente’s weight control clinic that were dropping out had been sexually abused (incest was revealed in over 50% of the interviewees)
ACE study methodology
· Didn’t look at individualizes effects but was a population study
· Retroactive study (asked participants to look back and see if any childhood trauma experienced, but only took note of the different kinds of trauma not the amount)
ACE study findings
· There is a direct link b/w childhood trauma and adult onset of chronic disease, mental illness, incarceration, work-related problems
· ACE’s did not happen in isolation
o If experiences one category 87% chance experienced a second
o The more categories of trauma experiences as a child, the higher the risk of medical, behavioral and social problems as an adult (didn’t matter which categories you had but individuals w/ 4 no matter what types of trauma had the same high risk od medical problems
Implications of ACE study for AFC practice
· Adverse child experiences cause stress and when that goes unmitigated it leads to hormonal responses which causes long term negative health impacts throughout their lives
· Its not the event itself but the failure to respond to it that causes such long term impacts
C. Parent’s Role Comes First
Traditional Roles of Parents and the Government
· Historically children seen as “miniature adults” the perception that normally led the law to hear and protect children only through their parents
· Creation of the first juvenile courts in 1899 changed the way people thought to more that children have distinct physical, emotional and cognitive capacities and needs worthy of the law’s recognition
Meyer v. Nebraska (1923)
· Facts: P was convicted for teaching a child German under a Nebraska statute that outlawed the teaching of foreign languages to students that had not yet completed the eighth grade. The S.Ct. of Nebraska upheld the criminal conviction. Parent’s are not a party in this case
· Rule: The Fourteenth Amend. prohibits states from creating legislation that restricts liberty interests when the legislation is not reasonably related to an acceptable state objective.
· Issue: Really has nothing to do w/ children, but more so if the P’s 14th Amend. has been violated.
· Holding: Nebraska statute was unconstitutional b/c it infringes on the liberty interests of the P and fails to reasonably relate to any end w/in the competency of the state. The Fourteenth Amend. encompasses more than me
stody, care, and nurture of the child reside first in the parents. However, neither rights of religion nor rights of parenthood are beyond limitation.
o The state as parens patriae may guard the general interest in a youth’s well being by requiring school attendance, and regulating or prohibiting the child’s labor.
o The appellant urges that the activity in this case in no way harmed the niece. It was the child’s right to go out w/ her and practice her religion
o This case reduces itself to the question of whether the presence of the child’s guardian puts a limit on the state’s power. “The parent may martyr themselves, but this does not mean they may martyr the child before the child reaches the age of majority.”
· Notes from class:
o Should the court allow the P to do as she pleased she would be subjecting her children to child labor
o In addition this court deals w/ the Right of Religion and more specifically the little girl’s right of religion àhowever both were overruled
Ø At this point the parent has the right to raise their child as they see fit. But the state also has the right to act as parens patriae and override the parent’s wishes
Brown v. Board of Education (1954)
· A decade after Prince, Brown v. Board of Ed. unanimously held that racial segregation in public schools denied equal protection guaranteed by the 14th Amend.
· However unlike in Meyer and Pierce, Brown did not decide the rights of parents, and here the named P’s where the school children themselves
· This is case is about the child’s right and having their rights being articulated by legal representatives in a non criminal case
· Brown cleared rights to help the children by saying that segregating them in school deprived them of equal education opportunities
Bolling v. Sharp: applied the 5th Amend. to strike down racial segregation in DC public schools (ie can’t segregate people based on race for it deprives those in the minority their liberty and is a violation of the Due Process Clause
· Later enforced in Cooper v. Aaron
In re Gault (1967) most celebrated juvenile case
· Rourt adjudicated 15 year old Gerald Gault delinquent for making lewd calls to neighbor and committed him to the sate industrial school. S. Ct. reversed on the grounds that the trial court’s adjudicatory procedures did not comport w/ due process
· First time the court recognized children under the 14th Amend. despite the constitution not mentioning them
· Gault undermined the state’s parens patrie authority in delinquency cases to exercise informal discretion virtually free of procedural guarantees available to adults charged w/ crimes
· This case is basically a sham toward the child and the informality of how he was treated and basically throw in JV, demonstrates now that children have rights, not only as children but as full fledged adults and will be protected alike
