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Children & the Law
Western New England University School of Law
Kaiser, Jeanne

Child, Family, & State Outline
Western New England College, School of Law
Summer 2006, Professor Kaiser
 
Section I. Issues Arising in Physical Abuse
How does the State get involved in family life?
State agency investigates a family
Monitors them
Provides Services or Links them to Services
                                                               i.      Massachusetts = DSS
State agency takes custody
Places them in foster care
Works on reunification
Involves legal process
State agency moves to terminate parental rights
Involves legal process
 
Model Penal Code § 3.08
Force is justifiable if the actor is a parent, guardian, or person similarly responsible for the care and supervision of a minor or a person acting at the request of such.
Force is used for the purpose of safeguarding or promoting the welfare of the minor; including the prevention or punishment of his misconduct; and
Force was not designed to cause or creates a substantial risk of causing death, serious bodily harm, disfigurement, extreme pain or mental distress, or gross degradation
In Re M. Childrenà Held that forcing a child grab their ankles while their knees were in a locked position until the child screamed from the pain and vomited met the standard of extreme pain and gross degradation.
 
Restatement (Second) of Torts
§ 147 General Principle
Parents may use reasonable force or confinement upon child as they reasonably believe necessary for its proper control, training, or education
 
§ 150 Factors Involved in Determining Reasonableness of Punishment
Whether actor is parent
Age, gender, and physical and mental condition of the child
Influence of child’s example upon other children of the same family or group
Force or confinement is reasonably necessary and appropriate to compel obedience of proper command
Disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm
Comments to § 150 state that the actor is not privileged to use a means to compel obedience if a less severe method appears to be likely to be equally effective
 
Civil Standard
Minor has suffered, or there is substantial risk will suffer serious physical harm inflicted non-accidentally. In determining, can take into account past history of lesser injury and/or injury to siblings
Serious physical harm does not include reasonable and age appropriate spanking to the buttocks when there is no evidence of serious physical injury.
See Commonwealth v. Cobble, in that case the father struck his child with a belt, but it was not out of anger and did not leave bruises. He also claimed it stemmed from religious

m to occur before taking action, and can act when ‘disaster seems inevitable’
 
Poverty Standard
For reasons other than poverty in a way that seriously endangers the physical health of the child
In Hansen v. DSS, it was held that in California you cannot remove the children of homeless people under the neglect standard; instead you must offer the entire family housing.
When Poverty is present, make sure to examine other factors and determine if poverty is the cause or if there is something more.
 
Zuravin Standards (footnotes p. 103)
Nutrition à Failure to provide regular and ample meals that meet basic nutritional requirements
Ex. Pet food, garbage, laundry starch, begging for food
This is a very low bar
People are poor, can’t afford a good balanced diet
Value judgments, different cultures eat differently, we don’t want people on the hook for making poor choices, and we want them on the hook for what would seriously endanger the life of the child.
What about junk food to an obese child?
Might meet the level of serious endangerment