CHILD, FAMILY, STATE

Professor Bartholet Fall 2009

II.Status Rights and Obligations of Children........................................................................................3 A.The Laws Evolving Conception...................................................................................................3 1.Parental Rights............................................................................................................................3 2.Rights for Children.....................................................................................................................3 3.U.N. Convention on the Rights of the Child..............................................................................4 B.Perspectives on Childrens Rights.................................................................................................5 III.Defining the Parent-Child Relationship...........................................................................................5 A.Traditional Concepts......................................................................................................................5 B.Challenges to Tradition..................................................................................................................5 1.Establishing Paternity.................................................................................................................5 2.DeFacto Parenting......................................................................................................................6 2.Contested Adoption....................................................................................................................7 3.Reproductive Technology...........................................................................................................8 IV.Representing Children......................................................................................................................9 A.Childs Right to Sue.......................................................................................................................9 B.Role of Childs Counsel.................................................................................................................9 V.Abuse and Neglect...........................................................................................................................10 A.Constitutional and Statutory Framework.....................................................................................10 A.Reporting Systems.......................................................................................................................10 B.Removal of Child.........................................................................................................................11 1.State Duty to Intervene, Child Right to Protection..................................................................11 1.Reasonable Efforts requirements..............................................................................................11 2.Reunification and TPR.............................................................................................................12 B.Patterns of Abuse and Neglect.....................................................................................................14 1.Neglect, Psychological Maltreatment, Abuse..........................................................................14 2.Corporal Punishment................................................................................................................14 3.Sex Abuse.................................................................................................................................14 4.Medical Neglect........................................................................................................................14 C.Parental Substance Abuse............................................................................................................15 VI.Foster Care......................................................................................................................................15 A.Right to a Family..........................................................................................................................16 1.Childrens Rights......................................................................................................................16 2.Foster Parents Rights...............................................................................................................16 3.Law Today................................................................................................................................16 A.Types of Placements....................................................................................................................16 VII.Adoption........................................................................................................................................17 A.Rights to Adopt, Privilege to Be Adopted..................................................................................17 1.Who May Adopt?.....................................................................................................................17 2.Special Groups..........................................................................................................................17 2.Childrens Rights......................................................................................................................18 3.Response to Adoption Critics...................................................................................................18 4.Adoption Subsidies...................................................................................................................18 A.No $ for Babies Rule....................................................................................................................19 1

A.Openness......................................................................................................................................19 A.Unorthodox Adoption..................................................................................................................20 1.Transracial Adoption................................................................................................................20 2.Native American Adoption.......................................................................................................21 3.International Adoption..............................................................................................................21 VIII.Delinquency.................................................................................................................................22 A.Juvenile Crime.............................................................................................................................22 1.Statistics....................................................................................................................................22 2.Culpability and Competency....................................................................................................22 A.Juvenile Court..............................................................................................................................23 1.Jurisdiction and Juvenile Status................................................................................................23 2.Original Conception of Juvenile Court....................................................................................23 3.Contemporary Juvenile Court...................................................................................................23 4.Incapacitation ...........................................................................................................................24 IX.Class, Race, and Historic Injustice.................................................................................................24

I.

II. STATUS RIGHTS AND OBLIGATIONS OF CHILDREN

Despite our nations tradition of nonintervention and family privacy, states may exercise parens patriae authority in their capacity as promoters and protectors of child welfare and as common guardians of the community. Different standards can be used to determine the legitimacy of state actions: rational relationship (deferential), mid-tier balancing, and strict scrutiny. Which standard do we prefer? In world without constitutional rights for children, answer depends on whose interest we consider best-aligned w/ child, parent or state. (Conservatives prefer to empower state) (Those who are more trusting of parents might argue on anti-totalitarian, diversity ideals. May even prefer to leave rights w/ parents than grant constitutional rights to children. See, e.g, Marty Guggenheim.)

A. THE LAWS EVOLVING CONCEPTION

1. Parental Rights
The interests of parents and guardians in directing the upbringing and education of children under their control receive considerable weight, Meyer (U.S. 1923) (rejecting state law that made it unlawful to teach a foreign language to those under 8th grade), Pierce (U.S. 1925) (invalidating Oregon Act that compelled attendance at public schools), strict. Modern world parental rights are somewhat diminished. The family is not beyond regulation in the public interest, Prince (U.S. 1944) (upholding state child labor law, though in most circumstances court respects the private realm of the family life which the state cannot enter). Must give some deference to parents right to decide who associates with child, but presumption that fit parents act in childs best interest is rebuttable, four-Justice Troxel plurality (U.S. 2000) (state law that allows any person to petition court for child visitation is unconstitutional). Children are supposed to have rights entitled to consideration in matters concerning their welfare, Prince. The central issue is how much weight a childs rights receive in a particular circumstance and whether/how children may articulate their rights. So far, childrens rights are severely limited. See, e.g., Stevens dissent in Troxel (U.S. 2000) (arguing for childs relationship rights), Douglas dissent in Yoder (U.S. 1972) (childrens views should be considered when deciding whether to allow Amish parents to keep children from school). (More robust child rights could undermine the assumption that natural parents have near absolute rights, remove the brick wall in the current abuse/neglect system and lessen family preservation emphasis, and give CBI greater force in custody proceedings. However, rigidifying rights places matters outside the arena of public debate and legislative action.) Rights era cases vindicated childrens substantive and procedural constitutional rights, Brown v. Board and In re Gault (child acting as adult), and state statutes often specify circumstances in which views of mature minors may be heard and considered. But the States authority over childrens activities is broader than over adults actions, since most children are not prepared to make choices for themselves, a generally 3

2. Rights for Children

accepted principle. Common law affords mature minors the right to consent to or refuse medical care; theres a privacy right to obtain contraceptives, Carey, and a right to access abortions, Bellotti (U.S. 2000) (though general view favoring parents rights persists). The trend in federal court has been to narrowly confine childrens rights to situations where they are acting like adults. Since Tinker (U.S. 1969) (broad articulation of childrens first amendment rights at school) strict, weve seen a trend of decreased independent rights for children, but arguably increased protection through less strict scrutiny of state legislation, Vernonia (U.S. 1995) and Earls (U.S. 2002) (drug testing), Morse (U.S. 2007) (Bong Hits 4 Jesus) mid-tier, Safford (U.S. 2009) (strip searchThomas concurring argues for even greater freedom for schools in loco parentis). Similarly, move from Roe to Casey to Gonzalez (U.S. 2007) goes from strict scrutiny to balancing (rights of state to protect half-born child). See also Troxel. From Meyer-Pierce to Santosky to present, children still have no (or very limited) constitutional rights, but we now may consider their best interests. State courts may limit best interest analysis based on their interpretation of the Constitution (see In re Juvenile Appeal) or on their own restrictive laws. Our best bet for protecting children may be to more loosely interpret the Constitution and to build childs rights with state law, e.g. right to permanency, liberty from bodily restraint, In re John Doe (Fla. Dist. Ct. 2008), contrast Lofton (11th Cir. 2004). If we care about flexibility, we prefer to defer to state legislatures. If we dont trust the state, we prefer rigid constitutional lines set by courts. A legislative approach offers the benefits of stability and predictability (also didactic), Michael H.

3. U.N. Convention on the Rights of the Child

Adopted in 1989, U.S. didnt sign until 1995 and it remains unratified, though U.S. ratified two optional protocols, one on military recruitment and the other on child pornography and prostitution. Unlike earlier Declarations, which viewed children as beneficiaries of adult welfare (consistent with Meyer and Pierce), the CRC enumerates rights held independently by children. 3 Ps: Participation of the child in society and decisions; Protection of children against discrimination, neglect, and exploitation; and Provision of assistance for childrens basic needs. CRC might interfere with state law and with parents rights to raise their children as they see fit (conservative opposition). But, granting affirmative rights could provide necessary momentum for meeting children's basic needs. For example, for TPR, a court presently cannot consider CBI until and unless it determines the parent unfit (put differently, court must determine unfitness in order to do away with consent requirement for adoption). CRC would change this (Art. 3.1: In all actions concerning children, CBI shall be a primary consideration) and would also, more generally, tilt the balance in favor of children. One strong critique of the CRC is that it creates no duty to permit adoption, and prefers in-country orphanages to international adoption. In this respect, the CRC defers to state sovereignty rights, not childrens best interests. Although U.S. is not bound by the CRC, since it has not ratified it, the question remains whether any of the Conventions articles hold the status of CIL, which would supersede inconsistent state law or policy, Paquete Habana. 4

B. PERSPECTIVES ON CHILDRENS RIGHTS

Michael Wald: (Preservationist) discourages abandoning children to their rights. Bruce Hafen: Children can only be protected by giving them parents. Eugene Volokh: We expect, with good reason, that parents will be benevolent despots, better than government agents. Barbara Woodhouse (conventional thinker): Collective community responsibility (partnerships) for well-being of children. Power over children earned through demonstrated responsibility and conferred by community; stewardship. -------- Katherine Federle: (child liberationist) Rights theory based on empowerment, not capacity. Parental rights based on control and dominance are unacceptable. David Meyer: Parent-focused constitutional doctrine often serves as cover for subordination of child welfare. James Dwyer: We give too much weight to parents rights to care for and raise children. Radical position: some prospective parents (addicts, minors) should carry burden of persuasion to demonstrate fitness. Maximize well-being of children born by letting state choose to have, e.g., age-appropriate parents. Recommends determinations of who carries the burden of proof of fitness (or unfitness) on a caseby-case basis to alleviate concerns of disparate effects, race and class bias.

III. DEFINING THE PARENT-CHILD RELATIONSHIP

A. TRADITIONAL CONCEPTS
Historically, there was a harsh common-law view of births out-of-wedlock. Since Levy (U.S. 1968), however, most discrimination against non-marital children is illegal. Bio mother has traditionally held the right to veto an adoption of her child by withholding consent, unless consent was excused by operation of law. Where the child was conceived or born during marriage, the father generally had rights too. Before Stanley v. Illinois, in 1972, the unwed fathers right to notice of his childs impending adoption and his right to withhold consent were nonexistent. The Uniform Parentage Act (UPA) seeks to achieve legal equality for all children regardless of the marital status of their parents. More than eighteen states have adopted the Act wholly or in part. The Acts language speaks of married couples (husband and wife) or an unmarried man and woman intending to parent a child. Thus, it fails to provide a clear path to identify the parents of children born to samesex couples.

B. CHALLENGES TO TRADITION
1. Establishing Paternity
Government got involved in establishing paternity in response to rising welfare costs, give children rights to ensure that theyre supported. Law has traditionally accorded significant weight to biology in defining parentage. However, todays SCOTUS has signaled a willingness to provide the states with significant leeway to determine who is a parent and how prominently biology should figure in that determination, Michael 5

H. v. Gerald D. (U.S. 1989) (upheld CA law that defined a sperm father who had a significant social parenting relationship with his progeny as a non-father, instead defining the husband of the childs mother as the legal fatherScalia plurality, forceful dissent by Brennan, 674-75). Either by statute or judicial decision, approx. 2/3 of states grant putative (bio) fathers a right to rebut presumption that child born to married woman is product of marriage; however, a 1995 Conn. decision said putative father must demonstrate more than a minimal threshold, looking for stability and CBI. Unwed fathers can have parental rights, but something more than biology is required (bio+), Stanley. Contrast Quilloin (authorizing adoption over the objection of bio father who had never legitimated the child; no EP or other claimmother establishes relationship necessarily, father must demo something more) with Caban (preventing mothers new husband from adopting the 2 and 4 year-old children over whom bio father had maintained joint custodyno statute like in later Michael H; EP violation, did not address DP). Lehr distinguished developed parent-child relationship (Stanley, Caban) from the merely potential one (Quilloin). The plus part generally must be within the fathers control, Stanley (IL cannot demand that fathers be married), Lehr (NY can provide for classes of fathers deserving of notice, and require affirmative steps). A few state statutes confer rights on only those unwed fathers who develop a relationship with both the child and the mother. A majority of states have enacted putative father registries since Lehr upheld their constitutionality, and some have time limits for registration. Where a man believes he is or may be a childs father, registry statutes place the burden on him to register if he wishes to claim paternity and receive notice of a prospective adoption, Lehr v. Robertson (U.S. 1983) (unwed and unregistered bio father could not block his childs adoption by the mothers new husband, claiming no notice of adoption proceeding). The Federal Registry Act would create a national registry and provide education to inform the public. One benefit of a registry is the social message it would send: adults must earn parenting rights. The UAA considers registries a farce and, instead, proposes notice by publication and a six month statute of limitations.

2. DeFacto Parenting

Dominant trend is in the direction of reducing the importance of biology as a factor in defining parentage. Increasing emphasis is placed on established and intended parenting relationships, in part to deal with the new complexity of family life, Bartholet, Guiding Principles for Picking Parents, Stanley v. Illinois (upon death of childs mother, unwed bio father has full parental rights based on 17 years of positive parenting), In re CKG (Tenn. 2005) (bio father denied exclusive custody over in vitro triplets in suit versus his former companion, the gestational mother; intent is one factor to be considered along with genetic and gestational contribution). Many state courts and legislatures have adopted the functional parent doctrine, giving those who have developed actual parenting relationships with children the right to come into court and compete for some piece of the total parenting rights package with those who became parents through biology, dissent in Alison D. (NY. App. Ct. 1991) (p. 157) (arguing against NY court majority that refused to hear merits of request for visitation by genetically-unrelated (lesbian) co-parent). Defacto parents rights are bolstered where CBI points in their favor, Phillip B. (in medical neglect case, CA trial judge holds an imaginary conversation with child and declares his needs paramount in the judicial 6

monitoring of custody; uses detriment to child (not parental unfitness) standard, but appears to justify TPR on grounds of abandonment). Nevertheless, the traditional emphasis on biological ties remains strong, In re ARA (Mont. 1996) (p. 167) (Stepfathernamed childs guardian in will of his wife (childs bio mother)has standing under state law to request a custody hearing, but bio father had stronger, constitutional rights so long as he was not demonstrated unfit), Phillip B. (only with great difficulty do defacto parents become legal parents of Downs syndrome child whose bio parents have medically neglected and effectively abandoned him), Baby Richard, attempts to make adoption look like bio. Children might sometimes be better served if the law discarded its general unwillingness to recognize that a child might have more than one mother or more than one father. ALI Principles do not restrict a child to only two parents, the no longer valid premise of nuclear family underlies the legal norm of parental autonomy and exclusivity (support from Prof. Katharine Bartlett). But there are currently no state provisions for dual paternity, and no relationship rights for children, Michael H., Troxel. Illinois Baby Richard legislation provides for separate determinations of parenthood and custody when an adoption is denied or revoked on appeal; permits courts to divest bio parents of custody without a finding that they are unfit parents. Question remains whether such divestment is constitutional under Stanley, Lehr and the prerogatives of fit biological parents recognized in such decisions as Meyer, Pierce, Prince, and Troxel: [YES, maybe as applied]. In the alternative, guardianship can be an option for difficult cases that have not yet passed the stage of adoption, Baby Jessica (bio parents want baby back at age 2, pre-adoption). Psychological (defacto) parent theory argues for full substantive rights of bio parents. This is a radical notion, and if accepted a tool for same-sex couples (who could have a more compelling case than foster parents because not state-created). [Health law notes] (against rigidifying rights) SCOTUS has been reluctant to extent constitutional protection to asserted rights or liberty interests because this, to a great extent, places the matter outside the arena of public debate and legislative action. (In a long line of cases, the court has held that, in addition to the specific freedoms protected by the Bill of Rights, the liberty specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, to have children, Skinner v. Oklahoma ex. rel. Williamson; to direct the education and upbringing of ones children, Meyer, Pierce; to marital privacy and contraception, Griswold v. Connecticut; to bodily integrity, Rochin v. California; to abortion, Casey; and to sexual privacy, Lawrence v. Texas.) If a legislative classification or distinction neither burdens a fundamental right nor targets a suspect class, [the court] will uphold [it] so long as it bears a rational relation to some legitimate end, Washington v. Glucksberg (on assisted suicide).

2. Contested Adoption

Bio+ doctrine has created the problem of potential fathers with constitutional rights (Stanley); marriage is no longer the bright-line decider. The rights of these potential fathers threaten to harm both children and adoptive parents, and, more generally, could discourage people from adopting. See also feminist critique of giving unwed fathers the right to veto a potential adoption (maternal autonomy argument), 677. Contested adoptions are rare but ugly. The laws focus on unwed fathers 7

constitutional rights may sometimes disserve the best interests of the child, Baby Richard (Ill. 1994) (thwarted unwed father may retroactively veto adoption of his child, since his parental interest was improperly terminated by mothers deception) (giving children constitutional rights could counteract this and change result) (also, federal law doesnt say a thwarted father is necessarily the father; states can adjust). Courts have not been hospitable to claims that children hold constitutional rights to have custody in adoption proceedings determined in accordance with their best interests, Angel Lace (Wisc. 1994) (p. 622) (denying same-sex, second parent adoption). But perhaps a child should have a right to DP protections, at least when state action (e.g. in form of a transfer of custody) is likely to cause substantial harm to the child. See also the strong Brennan dissent in DeShaney (U.S. 1989) (child unsuccessfully sues claiming social workers failure to act deprived him of his liberty in violation of Due Process).

3. Reproductive Technology

The world of repro tech is largely unregulated, court decisions are infrequent since disputes are rare and the little existing legislation is mostly legitimizing, i.e. donor/vendor insemination. All states have some sort of Uniform Parentage Act. The latest one (2002), adopted by a handful of states, strictly regulates gestational surrogacy agreements out of concern regarding child commoditization. Article 8 of the UPA provides for enforcement of gestational agreements, but only those validated under the Acts requirements, which include court review similar to the review required as a condition for adoption. In NJ, surrogacy contracts are unenforceable, Baby M, but this doesnt preclude the practice. Virginia and New Hampshire have comprehensive legislation regarding assisted reproduction (Hastings Center Report 2003). At the federal level, the 1992 Congressional Fertility Clinic Success Rate and Certification Act requires clinics offering assisted reproduction technologies to disclose pregnancy success rates to the Centers for Disease Control. And laboratories that perform the diagnostic tests related to assisted reproduction, such as semen or hormonal analysis, must be certified under the Clinical Laboratories Improvement Act. Professional organizations in reproductive medicine have also set practice standards. But a substantial proportion of research and innovative therapy in reproductive medicine need not be subject to peer review, may not conform to current standards for informed consent, and may be offering services that have never been fully evaluated for safety and efficiency. Research driven by the private sector and conducted in the shadow lands seems dangerous, not to mention incompatible with public deliberation about the direction of science (Id.) Traditional view is that adults have absolute right to procreate (at least naturally); however, CBI might suggest we override adult wishes in some circs, Bartholet, Beyond Biology (It could be a good thing to flout [defy] private will in order, for example, to protect children who will not be able to protect themselves in a private contract regime. Our current regime push[es] people who want to parent away from adopting the children in need of homes and toward producing new ones.) See details regarding U.K. and Canada process and repro tech regulations. Policy issues to consider: predictability (intent, genetics, other), anonymity or openness, commercialization, health concerns (both for women and childrenhigh-dose hormones and multiple births), parental screening (age, health, resources, etc). 8

IV. REPRESENTING CHILDREN

A. CHILDS RIGHT TO SUE
Children dont generally have standing to go to court, Kingsley (Child lacks standing, although case is heard and decided because foster parents, DHHS, guardian ad litem all file TPR petitionrare instance where foster father is a lawyer). Giving children standing might improve the odds that their interests are represented and protected; however, standing for children might prove impractical: education and dissemination of information, money and qualified attorney, volume of (frivolous) cases. Many children are too young to speak or to make rational decisions, and appointing someone to represent them simply means assigning some adult to decide for them and It is not practicable to provide paid representatives or individual hearing rights to all children for all of the issues that matter. In the end we have to rely on adults. Bartholet, International Adoption: The Childs Story. Alternative ways to make sure we protect childrens interests include building up CPS in terms of money and personnel, changing the agencys bias (which is in favor of family preservation), ASFA 15/22 rule, encouraging doctors to work with CPS. Many states require that a lawyer be appointed to a child in an abuse and neglect proceeding, but some require that the childs lawyer be client-directed (see Katherine Federles client empowerment model) while others require the lawyer to act as a guardian ad litem whereby the lawyer is charged with the duty of protecting and serving the childs best interests, Grunewald v. Technobilt (tort suit), Smith v. OFFER (Childs counsel chooses to represent her perception of interests of all children and never actually consults with her seven named child clients). A hybrid model would incorporate childrens opinions to the extent they demonstrate capacity, although there may still be the concern that mature children might be fearful of voicing their opinions if they conflict with their parents opinions. The ABA Abuse and Neglect Standards, adopted in 1996, indicate that a lawyer should advocate for the childs articulated preference, though the Standards also provide for the appointment of a lawyer as a guardian ad litem. The ABA Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings would mandate lawyers for every child in the child welfare system, insist that the child be treated as a full-fledged client, and sets clear standards for lawyers representing children. In many jurisdictions, child abuse/neglect cases are handled by prosecutors office. If prosecutor represents CPS agencys interests, and inactive or nonexistent guardian ad litem, then no one looking out for child when CPS performs poorly, Diva P. V Kaufman (W.Va 1997): I have seen the department fail to protect children and fail to advocate for them vociferously[But] as much as I would like to make the policy decision that prosecuting attorneys have the right and responsibility to represent the public interest in protecting abused and neglected children when their position conflicts with the departments, I do not believe the law as currently constituted permits them that role. 9

B. ROLE OF CHILDS COUNSEL

 Children frequently languish in foster care, deprived of permanent adoptive homes, in part because of a shortage of qualified lawyers who can help [foster] families [and children] on a pro bono or reduced-fee basis in their efforts to TPR and proceed toward adoption (ABA President, 1997).

V. ABUSE AND NEGLECT

In 1974 Congress enacted the Child Abuse Prevention and Treatment Act (CAPTA), which provided funding to states for child abuse and neglect programs, established standards for child abuse and neglect reporting and investigation, required appointment of guardians ad litem for children in abuse and neglect cases, and established the National Center on Child Abuse and Neglect. However, the child welfare system remains woefully inadequate. (See CPS in Sample Answers). Overview: Childrens right to avoid abuse and neglect is generally based on state statutes. We observe conflicting trends in federal legislation on abuse and neglect: ICWA and AACWA (1980) favor family preservation. MEPA (1994/6) and ASFA (1997) are more protective of children.

A. CONSTITUTIONAL AND STATUTORY FRAMEWORK

Abuse and neglect laws rest on a delicate balance of the rights of parents, children, and the state. SCOTUS has conferred on parents a substantive due process right to direct their childrens upbringing (Meyer, Pierce). In the recent decision of Troxel, all nine Justices reaffirmed the parental due process right. At the same time, parental prerogatives do not have boundless constitutional protection (Prince), and the court has specifically recognized [t]he states rightindeed dutyto protect minor children through a judicial determination of their interests in a neglect proceeding (Stanley). Courts are clear that where an abuse or neglect finding is based on sufficiently serious danger to the child, the states parens patrie authority to protect the child prevails over any constitutional interest asserted by the parents. Reasonably anticipated harm, as well as actual harm, can be a basis for intervention; the state does not have to wait until the child is actually injured before removing the child, temporarily or permanently in some cases. Recurring issues are: (1) the degree of actual or threatened harm the state must show before it may intervene, and (2) the level of assistance the state must provide a family to help it resolve the risk before removing the child. SCOTUS has not directly addressed these issues. (See RE requirements infra). The identification of battered childs syndrome in 1962 was a catalyst for state laws requiring physicians to report suspected child abuse and neglect. By 1967, all states had enacted reporting laws. In response to CAPTA and federal funding legislation periodically amending it, states have added other professionals to the list of mandated reporters. Child welfare agencies do not generally intervene until parents fall below a rather low threshold of care and competence. To report a parent on a list accessible by child care, foster and adoption agencies, and state CPS, more than credible evidence (of abuse or neglect) is required, Valmonte 10

A. REPORTING SYSTEMS

v. Bane (2nd Cir 1994) (woman slapped her 11-year-old child and was reported). The court in Valmonte required a fair preponderance standard for reporting, in order to adequately protect the mothers due process liberty interest in her reputation. Only 18% of investigations are substantiated, perhaps due to overly broad reporting laws. But narrowing reporting criteria might leave some children at risk. Just because a parent is not legally-implicated (by a substantiated claim) doesnt mean a complaint is not a relevant risk factor, and CPS might not see repeat problems if such incidents are not disclosed. CPS resources (to investigate and substantiate) might be inadequate (as reporting increases the percentage of cases substantiated decreases). Growing caseloads and systemic weaknesses (lacking skilled workforce, poor recordkeeping, poor implementation of policies and procedures, lack of supervisory involvement in case assessment), U.S. General Accounting Office study, 1997. A government officials entry into the home during an abuse or neglect investigation constitutes a Fourth Amendment search. To examine children or a home, the social service agency must demonstrate the searchs reasonableness, though consent or exigent circumstances justify a warrantless search. Inspections of the home that are part of a treatment plan or court ordered disposition in a child abuse and neglect case may not trigger Fourth Amendment protection.

B. REMOVAL OF CHILD
1. State Duty to Intervene, Child Right to Protection
Every state has laws to protect children from child abuse. Children, however, are not protected under the U.S.C., DeShaney (U.S. 1989) (No recognizable DP claim for social workers failure to act to save Joshua, beaten to the point of brain damage while left in his fathers custody) (Brennan and Blackmun dissent). Note: Mr. Deshaney is sentenced to 2 to 4 years in prison, but he gets off on parole after <2 yearsAdults subject members of their family to forms of outrageous maltreatment because they can without getting caught or being punished (Richard Gelles).

1. Reasonable Efforts requirements

Federal law (e.g. AACWA (1980)) has long required state agencies to demonstrate that reasonable efforts have been made to provide assistance and services to prevent the unnecessary removal of a child from his or her home and make it possible for a child who has been placed in out-of-home care to be reunited with his or her family. If a state fails to provide parents with adequate support services, TPR may be denied or at least delayed. RI, WA, and DE courts have required the state to provide housing as part of its reasonable efforts to reunify a homeless family. But the reasonable efforts requirement has also been interpreted to allow removal of a child because the home was filthy, without requiring the state to provide cleaning services that would be substantially less expensive than foster care, In re N.M.W. (court directs continued foster care; is it really fair to the child to require the child to return to the mothers home as it is presently constituted?) While reasonable efforts to preserve and reunify families are still required under ASFA (1997), there are listed exceptions for egregious circumstances and, significantly, the childs health and safety now constitute the paramount concern in determining the extent to which reasonable efforts should be made (CB 380). ASFA 11

suggests that there is no need to make efforts at family preservation if (i) the parent has subjected the child to aggravated circumstances (as defined in state law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse); (ii) the parent has committed murder, voluntary manslaughter, aided and abetted such acts, committed a felony assault to the child or a sibling; or (iii) the parental rights of the parent to a sibling have been terminated. However, the AFSA provision is not a mandate and it is infrequently utilized by states, Rafael B. (child is subject to serious and repeated brutality, but intervention includes reunification services). Several states provide one or more additional grounds for not making reasonable efforts. For an argument that TPR statutes should never require the state to prove reasonable efforts, see David Herring (notes). Parents poverty is no longer a per se basis for a neglect finding. Statutes may specify that a neglect finding may be predicated on the parents not providing adequate food, shelter or clothing, but only if the parents are financially able to provide these necessities or have been offered state assistance. The risk remains, however, that neglect may be found even though the parents deficiencies stem primarily from financial distress rather than from intentional denial of their childrens needs.

2. Reunification and TPR

There used to be little/no attempt by CPS to reunify families after removal of children for abuse or neglect, In re Knowack N.Y. 1899 (reformed parents must petition for return of children). Nowadays, removal of children tends to be strictly scrutinized, In re Juvenile Appeal (Conn. 1983) (p. 307) (court says children were improperly removed after their sibling infant died, despite marginal situationcaseworker visited 27x in 9 months), though this is not clearly required by the USC. ASFA requires states to initiate TPR proceedings in some cases marked by severe parental misconduct or the passage of time. AFSA requirements do not apply, however, where the child is being cared for by a relative, where the state documents a compelling reason why termination would not be in the best interests of the child, or where the state has not yet provided the family reasonable services necessary for the safe return of the child. TPR is typically viewed as a last resort, limited to severe cases and generally accomplished only after repeated failed reunification attempts, In re ST (Utah Ct. App. 1996) (p. 315) (TPR in case of extreme neglect and signs of abuse is accomplished only after seven years and two removals). Because termination is such a drastic remedy (sometimes called the death sentence of abuse and neglect law), SCOTUS has been sympathetic to parents arguments that termination proceedings should carry greater due process protections that the usual civil case. Due process permits a state to TPR only where a ground for termination is established by at least clear and convincing evidence, Santosky (U.S. 1982) (p. 382). States may raise this standard but not lower it. But see Rehnquist dissenting that a preponderance standard is constitutionally permissible: balancing parents interests with childs interest in a stable, loving homelife and States interest in healthy growth of young people into fully mature citizens. Some argue for a lower standard since its already difficult to prove abuse because houses have walls and because agency social workers and lawyers are 12

overloaded. (Many agency social workers are reluctant to make this attempt [at TPR], especially in the many jurisdictions where judges are perceived to be reluctant to order TPR in any case, David Herring, Punishing the Child for the Failure of the State Child Welfare System, 54 U. Pitt. L. Rev. 139 (1992)). Note that parental rights do not always dominate when resources are limited. Due process (14th amendment) does not require appointment of counsel for indigent parents in every TPR proceeding, court may determine case-by-case, Lassiter (U.S. 1981). State law: (I) Where (as in Santosky) a child has been in foster care for a period of time, the state may move to terminate on the ground that the parents have failed to take corrective actions necessary to allow the child to return home safely within a reasonable time. Maine, for example, has a fairly aggressive statute that says failure to make good faith, affirmative efforts to rehabilitate and reunify with the child constitutes a basis for a determination of unfitness, Ashley A (failure to ccooperate; were parents merely inadequate?). To overcome the parents constitutional objections, the state must show that it clearly articulated to them the requirements for return of custody. The state may also need to prove that it made reasonable efforts to reunify the family. Some states have made the passage of time alone a basis for termination. Because delays may be no fault of the parent (court administrative needs, waiting lists for services such as drug treatment programs), TPR based solely on the passage of time may violate the parents substantive due process rights to the childs custody. (II) The court may TPR when a parent abandons a child, intentionally and without just cause, or makes only token efforts to visit and communicate with the child while routinely failing to pay child support. In Utah, prima facie evidence of abandonment includes a parents failure to communicate for six or more months, Adoption of B.O. (III) A handful of states consider inaction to protect a child sufficient evidence for TPR, in which case may TPR where there is clear and convincing evidence that the infant child has suffered extensive physical abuse while in the custody of his or her parents, Jeffrey R.L. (W. Va.). In Idaho, unfitness is presumed for a parent convicted of murder or rape. Trend: CPS is increasingly willing to consider abuse of a sibling as probative of how the parents might treat other children. See, e.g., In re Marino (NY 2003). In addition, the children who are not abused themselves may nonetheless suffer from witnessing abuse of their sibling. Id. In extreme (rare) cases, the court may TPR (at birth) based entirely on proof of abuse of a sibling. When faced with a potentially harmful situation, the juvenile court does not have to wait until harm is done before it can act. In re M.A.T. (Mo, Ct. App. 1996). The permanency planning model required by federal law (ASFA) has been criticized for not demanding the availability of a permanent home as a prerequisite to an action to TPR, many children freed for adoption are never placed successfully in adoptive homes, Marsha Garrison (advocating that children be permitted to stay in foster care for up to three years). Marty Guggenheim recommends TPR only when three conditions exist: (1) grounds for termination (clear and convincing evidence that reunification is not possible and prospects for reunification in the future are quite dim.), (2) childs best interests point to termination, (3) adoptability.

13

B. PATTERNS OF ABUSE AND NEGLECT

1. Neglect, Psychological Maltreatment, Abuse
Maltreatment of children is often characterized by CPS as neglect rather than abuse because neglect is easier to prove. Its more difficult to intervene when theres no physical evidence, Shane case (father calls son fagot and ridicules him). Restatement (Second) of Torts 147, and various states, use a reasonableness standard for corporal punishment by parents, In re TA (Belt spanking of Tourettes afflicted child by stepfather was not rendered necessary by childs misconduct or reasonable in manner and moderate in degree, as demanded by S. Dakota law). Proposals to further limit corporal punishment have been struck down (CA proposal to ban corporal punishment for children under age three). More than half (but not all) U.S. states prohibit corporal punishment in public schools. Sweden outlawed parental corporal punishment in 1979; the law carries no penalties but public education has resulted in substantial compliance. Austria, Denmark, Finland, Germany, Israel, Italy, Norway similarly prohibit parental corporal punishment. Prohibiting corporal punishment might make it easier to prosecute abuse. Expediency is not a feature of custody-focused proceedings and family privacy in the norm. Domestic violence statutes could offer immediate and affordable relief to abused children, utilizing standard preprinted forms and allowing cost avoidance through the filing of an affidavit of indigency. Some courts have taken the position that domestic violence statutes were enacted to provide an immediate and affordable solution to family members, regardless of age, who are subjected to domestic abuse Beerman v. Beerman (S. Dakota 1997) (14 yr-old is allowed to use domestic abuse statute). Opposition cites differences between abused women and children, namely authority and potential for self-sufficiency. A recent study, led by a researcher at Duke Universitys Center for Child and Family Policy, concluded that spanking children when they are very young (1-year-old) can slow their intellectual development and lead to aggressive behavior as they grow older (NYT, Shouting is the New Spanking, 10/22/09). A parents association with persons she knows have a history of sexually abusing children is grounds for TPR, In re TG (here, mother actually knew abuse was occurring and repeatedly failed to protect her girls). Criminal rules of evidence do not apply to civil proceedings for abuse and neglect, may introduce corroborated out-of-court statements. These provisions help remedy general problems of proof in cases of sexual abuse of children, In re: Nicole. Some people believe this leaves defendants vulnerable to false prosecution. In NY, standard is preponderance of evidence, Child Protective Proceedings Act (1969). Failure to provide medical treatment (withholding medically indicated treatment including surgery, nutrition, hydration, and medication) to a child may be a form of neglect, Baby Doe, Child Abuse Prevention and Treatment Act (CAPTA), 1974. Case-by-case decisions are allowed for disabled infants with life threatening 14

2. Corporal Punishment

3. Sex Abuse

4. Medical Neglect

conditions, but futile or inhumane to treat exceptions are rare. Religious reasons are no excuse for failure to treat, Wisconsin couple (NYT, 10/8/09) (parents sentenced to (minimal) jail time for failure to treat their childs diabetes, she died). Normative neonatal practices may be influenced by CAPTA amendments, BornAlive Infants Protection Act (anti-abortion legislation), and 2005 HHS instructions to state officials regarding the interrelationship between these and EMPTALA. Hospitals may be able to use the legal fiction of emergency to treat infants against their parents wishes, and hospitals that remove life support against parents wishes or refuse to treat may be liable in wrongful death actions or under EMPTALA.

C. PARENTAL SUBSTANCE ABUSE

Parental substance abuse raises the delicate issue of how much intervention to protect a child is acceptable given a mothers rights to do what she wishes with her own body. Absent clear guidelinese.g. a childs constitutional right to protection or a mandate that CBI shall govern or perhaps law like for medical neglect courts are left to agonize over this decision. The Keeping Children and Families Safe Act of 2003 (KCAFSA) requires states to direct birthing facilities to report to a local state child protection agency all births in which babies manifest in utero exposure to illegal drugs. Some jurisdictions, like Minnesota, treat a positive toxicology at birth as abuse or neglect. More appears to be required in New York, and this is merely for parental monitoring/supervision not removal, In re Dante (newborn with positive toxicology gets court supervision, in part based on mothers failure to care adequately for her older children while misusing drugs; prior DSS attempt at removal failed). James Dwyer suggests we get rid of the absolute presumption of parental fitness at birth, in certain circumstances. Shift burden. As a more practical alternative, he suggests that we intervene at birth and TPR if a parent most likely cannot provide adequate parenting within the childs first 6 months of life. Carter Dillard proposes something even more radical: limit the procreative rights of drug-addicted adults, repeat offenders who have previously given birth to drug-affected children. Critics of ASFA claim that time limits (15/22) are unfair to parents, especially those with drug issues. But it is perhaps more humane to have a strict timeline and rules (mandatory treatment) because then bio parents know what will be required of them in order to keep their children. (See strict proposed policy in NC 18.

VI. FOSTER CARE

Foster children are temporarily placed either in private homes licensed and supervised by the state, or in group homes or institutions. A study by Michael Wald suggests that it is not clear whether foster care or family preservation is better; but, Bartholet says foster care is generally preferable since death and abuse/neglect rates are much higher when child returns to bio parents. 20% of the 500,000 children in foster care are available for adoption. It usually takes four to five years before a child freed for adoption is placed.

15

A. RIGHT TO A FAMILY
1. Childrens Rights
A childs right to family integrity is not clearly established; 9th Cir panel recognized childrens fundamental right to live with family members, including members of extended families (kinship care), Lipscomb v. Simmons (1989), however this was revd (1992), p. 494. For foster children and foster parents, an additional hurdle is the need to demonstrate that their relationship is sufficiently similar to a parent-child relationship to be worthy of protection. Popular understanding of the meaning of family and value to be placed on childs interest in nurturing and parental relationship (NC 22). Outcry after Baby Jessica and Baby Richard (NC 245, note 6) Would granting rights to foster parents bolster or diminish the rights of children? We might think that giving foster parents rights that resemble bio parents rights would exacerbate courts tendency to neglect the childs interests. Alternatively, we might think granting foster parents rights would threaten the notion that bio parents rights are absolute, competing parental rights shift the focus to childs best interests. Foster parents do not have standing to seek custody under federal law, Smith v. OFFER (U.S. 1977) (NY procedures that denied foster parents the right to a preremoval hearing for children in their custody for < 18 months were constitutional). However, foster parents may have standing to pursue custody or guardianship under certain state laws, e.g. Del. 1999, Fla. Dist. Ct. 2004, p. 471. Language in OFFER is sympathetic to foster parents (bio relationships are not the exclusive determinants of the existence of a family); Brennan majority says state law is authoritative and, in this case, it accords only limited recognition of the foster family. // Prof: parenting is more about bonding than about blood (NC).

2. Foster Parents Rights

3. Law Today
Since OFFER, foster care placements are now mostly involuntary, which points in favor of weaker bio parent rights in these circumstances. Sentiment in favor of foster parents rights is stronger than it used to be: ALI Principles recognize defacto parents, ABA president thinks foster parents should have access to reduced fee lawyers, ASFA gives foster parents right to notice and OTBH for any hearing that occurs (though not a right to a hearing and no right to be a party in the hearing). OFFER concurrence, p. 457, resembles current (conservative) majority: no liberty interest in continuation of foster family unit; favors weaker, less rigid rights all around. Greater deference to the state, which itself can decide if it wants to (i) be more protective of (alternative) family integrity, or (ii) give children relationship rights. 7th Cir. approach has suggested that a state could choose to grant rights to the foster family unit and, if it did, procedural rights would accompany the substantive ones, Procopio (Child, Ashley, transferred back to bio parents after five years in foster-adopt care with loving Procopios).

A. TYPES OF PLACEMENTS
See notes on Foster care, Institutions, Independent living, and Alternative solutions. 16

 The number of foster children in kin care increased substantially in late 80s/early 90s. Federal funding statutes require equal funding for kin and non-kin care. State law varies. Critics say kin care drains scarce financial resources and discourages family reunification. Kinship foster parents tend to be older and have lower incomes, poorer health, and less education than no-kin foster parents (Rob Geen). ASFA permits legal guardianship as part of a permanency plan. Candidates for legal guardianships include children in kinship care whose foster parents may not want to adopt because they do not want to TPR of the bio parent, their relative, and other children whose caregivers are unable or unwilling to TPR. See N.J. Div. v. P.P (legal guardianship for grandmothers should be pursued only if the grandparents decline to adopt). A guardian has a parents duties and responsibilities concerning the minors custody, care, education, health and general welfare, but the guardian is not responsible for the minors financial support. Prof. says: subsidized guardianships, where parents retain visitation rights, is better than impermanent foster care, but too often used to continue the status quo; advocated as an alternative to traditional permanency options.

VII. ADOPTION
A. RIGHTS TO ADOPT, PRIVILEGE TO BE ADOPTED
1. Who May Adopt?
Governing rules: no money, state has overall power, BIC governs. There is no right to adopt, or any pre-adoptive parental interest that comes close to rivaling bio parents right to hold onto their children. Nevertheless, defacto parenting and future intent to parent are increasingly relevant. Once successful, adoptive parents acquire the constitutional rights of parenthood and family autonomy. Minimal legislation on who may adopt (age limits, criminals and sometimes gays precluded) generally leaves CBI as the guiding principle. Agencies write the rules, since courts almost always approve adoptive parents (criteria: standing, availability, CBI). Classic form of adoption law is to increase scrutiny of prospective parents. A prospective parent denied by an agency has few grounds for appeal, since no right to adopt; he or she may have a case if denied based on an absolute, rather than discretionary, rule or racial discrimination, though many prospective parents would be reluctant to appeal since want a child not a case. The UAA (1994), p. 636, proposes no categorical exclusions of prospective adoptive parents; it would also provide for court appeals (and agency would be required to make a written finding on fitness characteristics that resemble TPR). Bartholet would equalize further by eliminating the rank-match system. See notes and pp. 637-43 for information on adoption intermediaries.

2. Special Groups
A single person may petition to adopt a child. Most states require married persons to petition jointly. Most states have minimum age for prospective parents. There is no maximum age, but age is a factor incorporated into CBI analysis. Several states have antidiscrimination statutes to protect disabled adoptive parents, 17

though the FDA does not apply in the adoption context. Some state adoption acts grant a preference to foster parents who have cared for the child for a specified period (New York). In Minnesota and Alaska, there is a preference in favor of relatives, by court decision and by legislation, respectively. The traditional position denies adoption by a same-sex partner, In the Interest of Angel Lace M. (child not available since bio mother is still present). Some radical courts, influenced by CBI (stability, permanency, legislative inertia), have allowed second-parent same-sex adoption, although this often flies it the face of legislative intent. The Academy of Pediatrics supports legislation permitting gays/lesbians to adopt their partners children because these children deserve the security of two legally recognized parents. Two same-sex partners with no biological connection to the child cannot adopt in Florida, Mississippi, or Utah.

2. Childrens Rights

Children do not have any constitutionally-recognized right to a home. No right of sibling association has been recognized by SCOTUS or any state supreme court. (Theres tension between the long-term interest in sibling association and shortterm interest in permanency.) A few states expressly grant separated siblings standing to petition for visitation with one another. Post-adoption visitation orders grounded in CBI but opposed by adoptive parents face careful constitutional scrutiny after the parents rights analysis in Troxel (third-party visitation decision). Adoption has to do with problems of oppression and disadvantage, but it does not cause those problems. And to be anti-adoption does nothing to solve those problems. A separate issue is our need to think seriously about how to improve the lives of poor birth mothers and their children and to correct the problems of social injustice and economic disadvantage, Bartholet, Beyond Biology. We could place a higher value on nurturing than on procreation, and we might choose to do so in part because it seems to serve childrens interests in being parented or perhaps because it is a responsibility that accompanies parental rights, Bartholet, Family Bonds: Adoption & the Parental Screening System.

3. Response to Adoption Critics

4. Adoption Subsidies
AACWA established an adoption assistance program that provides federal funds for adoption of special needs children. ASFA (1) provides incentive payments to states whose adoptions of foster children exceed the previous years number (opponents call this a bounty on each childs head) and (2) requires states to provide health insurance for any special needs child who is the subject of an adoption assistance agreement, and who the state determines would not be adopted without medical assistance. Hope for Children Act (2001) increased to $10k a tax credit for taxpayers who adopt a special needs child. Taxpayers who adopt a child without special needs are entitled to the credit to the extent of their unreimbursed qualified adoption expenses. Various state programs also grant tax credits to parents who adopt special needs children. These subsidies generally cover medical, maintenance, and special services costs. Eligibility for state assistance generally depends on the adoptive parents financial circumstances and the childs special needs. Federal government will match state funds for extension 18

services for children age 18 21.

A. NO $ FOR BABIES RULE

All states have enacted statutes prohibiting baby selling and baby brokering. Prospective parents may pay expenses related to the pregnancy, birth, and adoption only. But thats not to say that more money doesnt change hands. Money gives access to the private adoption agency and independent adoption worlds, Bartholet, Family Bonds: Adoption, Infertility, and the New World of Child Production. Baby selling prosecutions are few and far between, State v. Brown (Kansas 2001) (escort service manager arranged to sell the baby of her former employee). For-profit adoption is critiqued for failing to take into consideration CBI, the highest bidder rather than the best home gets the child. Far-out Posner advocates a regulated baby market to remedy what he views as an inefficient and artificially low price for babies obtained through lawful means. Michael Sandel argues against the exchange of money, focusing on surrogacy contracts, first, because certain things should not be bought or sold (There are, in civilized society, some things that money cannot buy, Baby M) and second, since Treating children as commodities degrades them by using them as instruments for profit rather than cherishing them as persons worthy of love and care. Contract surrogacy also degrades women by treating their bodies as factories and paying them not to bond with the children they bear. Bartholet adds that, apart from commercialization, treating the creation of new life as a relative nonevent for the creator, an act that does not necessarily entail any longterm responsibility for the life created, seems unlikely to encourage in society generally the kind of committed nurturing that children need, Guiding Principles for Picking Parents. Also, a weak form of biological favoritism seems plausiblethe sense that a child is your genetic product, the experiences of pregnancy and childbirth, may help create a healthy relationship between parent and child. Also, genetic heritage is an important influence on intellect/personality, and some level of likeness may be important for many parents, Family Bonds: Adoption & Stigma.

A. OPENNESS
The adoption world generally favors the sharing of non-identifying information; sharing identifying information is much more controversial. The formal adoption system offers closed adoptions (closed court records, new birth certificates). There is, however, a big trend toward openness led by independent adoption and some licensed private agencies. This trend appears to be fueled primarily by birth parents. A few states give adoptees an absolute right to know their bio parents upon adulthood. A majority of states have mutual consent registries, where adoptees and bio parents may register, but these have not proved very effective. Prof. positively views the trend toward openness later in life, sending the social message that theres nothing wrong with adoption (no reason to keep secrets). She is, however, concerned by court enforced openness that might infringe upon adoptive parents rights to raise and protect their children while they are still young. Some adoption acts expressly authorize courts, over the adoptive parents objection, 19

to order visitation between the child and specified personsusually the bio parents, grandparents or siblingswhen visitation would be in CBI. Troxel likely places limitations on enforceable openness laws and court discretion. Other adoption acts specifically preclude orders for post-adoption visitation. Where the adoption act is silent about the requested visitation, decisions have disagreed about whether courts may order visitation in the exercise of equitable or parens patrie authority, Adoption of Vito (Mass. 2000) (holding that a judge may order limited post-adoption visitation, but only when there is compelling, concrete evidence (of a significant, existing bond between the child and his bio mother, not present in this case)). Other consideration factors could include: (1) the childs psychological need to know his or her ethnic background (rejected in Vito), (2) the effect of open adoption on the childs integration with the adoptive family, and (3) the effect open adoption will have on the pool of prospective adoptive parents, In re SAH (SD 1995). Bartholet fears ongoing custody battles if enforceable openness prevails. MA legislation seeks to avoid this result by providing one-way ratcheting: courts may limit or restrict contact between the bio parent and child but may not increase that contact. In 1999, the U.S. Childrens Bureau urged states to enact statutes authorizing enforcement of contact agreements between birth parents and adoptive parents because older foster children are frequently exempted from the ASFA 15/22 mandate (and left in foster care) because they do not wish to be adopted and lose connection with their bio family. In general, if biology matters a lot, enforceable openness might be desirable; BUT, evolutionary psychologists tend to overstate the value of biology, empirical evidence on stepparents, from Daly and Wilson, is unconvincing.

A. UNORTHODOX ADOPTION
1. Transracial Adoption
Pre-MEPA, the tendency to race match was very strong, even though few states had laws that required matching and none were absolute. MEPA (1994, amended 1996) sought to encourage transracial adoption by ending the practice of matching adoptive parents with children of the same race in foster care and adoptive placement; it prohibits public and private child placement agencies from delaying or denying the placement of a child for adoption or into foster care, on the basis of the race, color, or national origin of the adoptive or foster parent, or the child. Violations are actionable, by private parties, under Title VI of the Civil Rights Act, and prospective (white) adoptive parents have won most of the more than two dozen discrimination suits filed in federal and state courts (prevailing parties receive attorneys fees, and the federal government shall withhold funds from public agencies for violations). Race-matching is similarly unacceptable in deciding custody, Palmore v. Sidoti (U.S. 1984) (reversing trial courts decision to transfer custody from white divorced mother to her ex-husband, upon her remarriage to a Black man), though Palmore is not applicable to foster or pre-adoptive parents, since they lack biology-based rights. MEPA is consistent with the abundant evidence that delay in or denial of adoptive placement hurts children, and lack of evidence that transracial placement causes children any harm, Bartholet, NC. Nevertheless, proponents of race matching argue that race matching is in childrens best interests (identity confusion, stigma), children belong where they came from, and we should not exacerbate past injustices by 20

giving Black children to privileged White families, Perry. See also hostage theory M-245. A response to this position is that Black communities might not have the resources to support the child, and we should instead focus on support to at-risk communities (address slavery and its legacy) without penalizing individual children. The MEPA I experience demonstrates that allowing even a minor preference for samerace placements will translate into much more rigid and stronger policies on the ground. The same might be said of screening or education efforts (norms).

2. Native American Adoption

Congress rejection of race-matching in MEPA stands in contrast to the recognition of tribal identity in the Indian Child Welfare Act (1978), which grants a preference, in the absence of good cause to the contrary, to a placement with kin, other members of the childs tribe, or other Native American families. In addition to placement preferences aimed at keeping the child in the tribe, ICWA includes stringent standards for removing children from their home and for TPR, and it has a higher evidentiary standard than the U.S.C. or state law require: a foster care placement must be supported by clear and convincing evidence, and TPR requires proof beyond a reasonable doubt. MEPA expressly exempts ICWA from its provisions. ICWA expressly excludes delinquency placements, custody awards to a parent in divorce actions, and state intervention that does not contemplate removing the child. Courts remain split on whether to recognize the judicially-created existing Indian family doctrine, which precludes application of ICWA when the Indian childs parent or parents have not maintained a significant relationship with the tribe. One criticism of ICWA is that it failed to address the underlying problems of poverty and unemployment that were causing disruption in Native American families. Congress rationalized the law under CBI, but Prof. is skeptical that ICWA serves either CBI or Indian community or larger society. Demands for children are easy because they are winnable, you can keep them looks generous and requires no resource expenditure (applies to international adoption, as well). Rates of international adoption increased from WWII to a peak in 2004. Present rates are about half of what they were at their height. CRC creates a hierarchy that preferences in-country placement in foster care or other appropriate care (institutions) over international adoption. The later Hague Convention, ratified by the U.S. in 2000 and implemented by the Intercountry Adoption Act of that year, recognizes adoption as a positive alternative for children unable to remain with their birth families but unlikely to be adopted in their own nations. The Convention sets minimal international adoption standards and procedures to safeguard the interests of children, birth parents, and adoptive parents. Many nations that ratified the Convention have not taken the steps to become compliant (bureaucracy problem), which precludes international adoptions from those places. The Convention has also been used to call for nations to take monopoly control over international adoption, to end private agency international adoption, which could be detrimental to adoption efficiency and efficacy (corruption, lack incentives to facilitate adoptions). Most of Central and South America has limited private intermediaries, resulting in a decreased number of adoptions from those places and prospective adoptees that are older, often 21

3. International Adoption

held for 2 to 3 years in institutions. The Child Citizenship Act of 2000 confers U.S. citizenship automatically on foreignborn children who are adopted abroad. About thirty states grant full effect and recognition to foreign adoption decrees issued abroad, but others may require state court validation or even de novo adoption proceedings. Americans who adopt abroad must pass screening tests. They often choose to go abroad to gain access to younger and healthier children (not available domestically because short supply and/or low rank-match). Each year, the U.S. sends some American children abroad for adoption, but it requires a 3 month holding period to first seek a local home and there is talk of a ban (matter of national pride). Prof. is actively trying to reframe the international adoption issue and so-called human rights position, from UNICEFs focus on childrens right to be free from kidnapping and trafficking (Smolin, Graff) to childrens right to life, nurturing, and family. (Many have claimed the human rights mantle in opposing international adoption. However, restrictions on ethical international adoption violate childrens basic human rights by condemning them to damaging institutions or to the streets. Every child has a right to be placed in a nurturing permanent home, whether that home is in the country of birth or abroad. Adoption abuses should, be addressed through enforcement and strengthening of laws prohibiting such abuses, not through closing down international adoption and thus denying homes to children (CAP Press Release, 11/3/09)). From either perspective, the system might benefit from caps on money exchanges (to reduce corruption and increase the number of available adoptive homes). Contrast lax regulations in assembling babies from abroad, M-52.

VIII. DELINQUENCY
A. JUVENILE CRIME
1. Statistics
The rate of violent juvenile crime began to increase in 1989, and by 1994 it was 61% above its 1988 level. After 1994, the juvenile Violent Crime Index fell consistently for the next nine years. By 2003, the rate had fallen below the levels of the early 1980s, rising slightly in 2004 and 2005. Although the national crime rate has declined, this is not necessarily the case in all communities. Juvenile arrests have disproportionately involved youth of color. In 2001, the juvenile population was 17% Black but 43% of juveniles arrested involved Black youth. Girls are the fastest growing segment of the juvenile justice system.

2. Culpability and Competency

Brain imaging studies of adolescents and the seminal work of the MacArthur Research Network reveal that children are not merely little adults, but have developmental differences. Justice Kennedy cited this research in the juvenile death penalty case, Roper v. Simmons, in concluding that, due to developmental differences, juveniles should be accountable for the crimes they commit, but not to the same degree as adults for comparable conduct. 22

 In addition to different culpability, children may also have different competency when it comes to understanding and waiving their Miranda rights. Children waive their right to remain silent much more often than adult suspects, Fare v. Michael C. (SCOTUS reversed juvenile courts decision to deny 16.5 year-old offenders motion to suppress his damning statements and sketches related to a burglary and murder). Should children be permitted to waive their right to remain silent or their right to counsel? The presence of a parent before and during an interrogation might not help, and may indeed hurt, a juvenile who has no attorney present. In some states, in order to uphold a youths waiver of the right to remain silent, the minor must be alerted of the possibility of being transferred to a criminal court and tried as an adult, but see Callahan. Miranda warnings are not required where the juvenile is processed as a status offender only. Authoritative opinion has cast formidable doubt upon the reliability and trustworthiness of confessions by children. The ABA suggests the videotaping of juvenile confessions whenever possible.

A. JUVENILE COURT
1. Jurisdiction and Juvenile Status
Juvenile courts generally have exclusive jurisdiction over claims that a child has committed a delinquent act, that is, an act that would be a crime if committed by an adult. (But see transfer statutes, by which jurisdiction can be transferred to criminal courts.) Juvenile courts also have status offense jurisdiction, covering conduct that is not an adult crime but is a delinquent act when committed by a minor. States have a good deal of discretion in fashioning their juvenile justice systems, and the right to be treated as a juvenile is statutorily conferred. Since 1992, every state but Nebraska has legislation to define the circumstances in which a juvenile may or must be tried and sentenced in criminal court as an adult. Twenty-nine states and D.C. have in place laws excluding certain offenses from juvenile court jurisdiction (statutory exclusion). Other methods by which minors may be tried in the adult criminal system include judicial and prosecutorial waiver. Illinois enacted the nations first juvenile court act in 1899 and the rest of the nation quickly followed its lead. Nineteenth century juvenile courts were distinguishable from criminal courts in five primary ways: individualized rehabilitation and treatment, civil jurisdiction (the rights that mattered were not childrens constitutional criminal rights, but their primary right to shelter, protection, and proper guardianship, p. 1007), informal procedure (no room for lawyers, until 1967 In re Gault), confidentiality, and incapacitation separate from adults. Post-In re Gault, juveniles are entitled to the basic due process protections of notice, right to counsel, right to consultation, right against self-incrimination, and right to appellate review. But trial by jury in the juvenile courts adjudicative stage is not a constitutional requirement, McKeiver v. Pennsylvania. In recent years, there has been a surge in juvenile court cases, straining court resources and judges time, resulting in assembly-line justice. Public pressure has led state legislatures to depart from the rehabilitative focus and move toward a more 23

2. Original Conception of Juvenile Court

3. Contemporary Juvenile Court

punitive model that increasingly resembles the adult criminal process. Critics of the system say it has been transformed from a nominally rehabilitative social welfare agency into a scaled-down, second-class criminal court for young people, Feld. Arguments for maintaining a separate juvenile court system include that it displays the capacity to treat and punish appropriately (when adults and youths are different in terms of culpability, and when youths may be more capable of reform) and its smj makes it the only venue in which the problems of children and family can be addressed in context, Judge Jay Blitzman, Gaults Promise. Juvenile courts may act more quickly than probate courts, and this can be a benefit (but also a concern). It could be desirable to add openness to the juvenile court system.

4. Incapacitation

Status offenders (e.g. truants) may be detained alongside youth accused of criminal conduct. Indeed, thirty states provide that violations of status offense orders may be treated in the same manner as delinquency probation violations and permit the use of secure detention in such circumstances, Judge Jay Blitzman, Gaults Promise. Large, prison-like training facilities exist in CA and other states and are at odds with the original vision of treatment and improving public safety. Contrast recidivism (repeat crime) rates of 70% in CA but only 31% in MA. MO uses community-based centers and is a leader in successful rehabilitation.

IX. CLASS, RACE, AND HISTORIC INJUSTICE

Minority children, particularly African American children, are over represented in the child welfare system relative to their proportion of the entire population. Theories about the cause of this disproportionality have been classified into three types: parent and family risk factors (disproportionate needs), community risk factors (not race or class but neighborhood problems), and organizational and systemic factors (biases and structural racism). Anti-Movement Rick Barth (CB p. 415), powerfully debunked NIH studies, race is not the primary facor driving child welfare services delivery. An adherent to the structural racism theory, Dorothy Roberts, is critical of federal and state child welfare policies that have shifted from family preservation toward terminating parental rights to free children in foster care for adoption by more privileged people. She asserts that these political trends are shattering the bonds between poor Black children, compounding the effects of discrimination on Black families, and reinforcing the inferior status of Blacks in America, Dorothy Roberts, Shattered Bonds. Those who share Roberts view advocate Community Partnerships (to handle neglect cases outside CPS), Family Group Decision-Making, and increased cultural competence training for social workers (signaling that they should be reluctant to find child maltreatment in a case involving a Black child). The Movements strongest argument may be that disproportionate treatment delegitimizes government efforts, and that requiring equal rates of removal will force society to address the underlying issues (hostage theory, discussed above). But others argue that racial equality for Black children would mean providing them with protection against maltreatment equivalent to what white children get and, since 24

Black children are disproportionately victimized by maltreatment, it makes sense that they are in need of more child protective services. (Could argue based on ICCPR). Protection against discrimination is not best achieved through under-enforcement of the law. To deny Black children proper protection would be to decrease their prospects for productive, successful lives and to simply victimize the next generation. Rather than halt or slow removals, society should act to prevent maltreatment in the first place, by expanding intensive early home visitation programs, and other programs to support fragile families and to address substance abuse, Bartholet, False Facts and Dangerous Directions. Prohibiting discrimination and condemning racism is much less costly and less controversial than confronting the fundamental inequities of our economy and our use of public resources, Richard Thompson Ford. A better approach, however, would be to focus on real solutions to poverty, joblessness, failing schools, and crime. (Similar arguments apply to health disparities, juvenile justice, and international adoption). Unless and until these broader efforts take hold, moving these abused and neglected children will at least give them a chance to break the cycle (NC 6).

25