Everyday Law for Children

David J. Herring

• Publisher: Routledge
• Year: 2015
• Topic: Law
• eBook ISBN:
  9781317260240
• Subtopic: Criminal Law
• Index: Law

Everyday Law for Children provides an accessible introduction to laws that affect children and families and the dominant public debates that surround and drive these laws. Using real-world examples, the book exposes the tension between reliance on the private, autonomous family and the public's desire to secure child well-being. A look at some public systems, such as child welfare and juvenile delinquency, shows that an initial public aspiration to assist children and families is often frustrated by a lack of resolve and resources. In other areas, such as education and healthcare, the public shrinks from a commitment to comprehensive child well-being. Everyday Law for Children makes a case for the improvement of public systems by focusing on pragmatic goals related to child well-being. More immediately, it makes a case for zealous advocates for children who can have a dramatic impact on children's everyday lives. Accordingly, the book provides an annotated list of resources and contact information for parents and for service providers who need help addressing specific problems within complex public systems.

1

Introduction

Legal Theories and Approaches Affecting Children

One cannot acquire a full, clear understanding of the law and how it affects children and their families. This is so because the fundamental social values surrounding children and families often conflict and are incoherent when viewed together. The conflict is deep and, worse, deeply disguised. The rhetoric of one value often mirrors that of the other, but the intended meanings and actual implications differ significantly.

This situation of disguised conflict allows participants in public discussions of children and families to manipulate others in order to achieve the specific results they desire. They can make statements seemingly in accordance with shared values while undermining the well-being of children and families. Because public discussions of children and families contribute significantly to the construction of the law affecting these constituencies, it is important to recognize and understand the conflict in fundamental social values that permeates public discussions of children and families. Only in this way can one reach a somewhat accurate understanding of the relevant law.

The goal of this chapter is to identify and discuss the primary conflict in values at play in discussions of children and families. The discussion will allow us to recognize rhetoric that leads to the manipulation of public discussions in order to serve factious goals. Interestingly, it will reveal a powerful conflict among groups of adults rather than a conflict between adults and children.

Understanding the primary conflict allows us to understand not only the construction of law but also the operation of laws and policies that affect children and their families. This understanding is vital for gaining insight into how the law and public systems affect children in their everyday lives. Recognizing the primary conflict and the manipulation of rhetoric within public discussions of children and families allows us to make more sense of the law and to come to a deeper understanding of how to use and even change the law as we confront it in everyday life. This point will become apparent in subsequent chapters as we address specific situations affecting children and their families.

The vehicle for our discussion of the primary conflict is the development of two strains of rights doctrine and rhetoric: parental rights and children’s rights.

Parental Rights

Coming first in time, the formal development of parental rights doctrine grew out of fear of a state-imposed vision of the good life and the appropriate methods for raising children. The United States Supreme Court embraced and addressed this fear in two significant decisions handed down in the 1920s.¹ The first case concerned a Nebraska law that prohibited all public and private primary schools from conducting instruction in a foreign language. Striking down the law, Justice McReynolds based the Court’s decision, in part, on the constitutional right of parents to control their children’s upbringing, a right that included having them receive instruction in languages other than English.

In explaining the Court’s decision, Justice McReynolds harkened back to Plato’s vision of communal ownership of children, which would entail taking children from their parents and placing them in the hands of the state.² No parent would know his or her own children, and children would not know their parents. Biologically unrelated nurses would raise the children of the leadership class, developing them into ideal citizens for the state.

Justice McReynolds rejected Plato’s vision in the strongest terms, finding that it was in fundamental and direct conflict with American values. American institutions protect individual liberty and insulate the individual from state control. One important aspect of individual liberty is a parent’s possession and control of his or her children. In an era when the Court frequently found an individual’s control of his or her property and labor to constitute a fundamental right protected by the Fourteenth Amendment, the Court had little difficulty in finding that parents’ possession and control of their children constituted such a right. The Nebraska law that denied parents the right to control their children’s education unreasonably infringed on this fundamental right and thus was unconstitutional.

The Court, in calling forth and attacking the straw man of Plato’s vision of communal, state-directed child care in order to address a state statute that only barred education in a foreign language, might seem engaged in overkill. However, when Justice McReynolds wrote the opinion in the Nebraska case, he may have viewed the case against the background of an Oregon statute that more fundamentally threatened parental control. At that time, Oregon required every child to attend a public school.³ This requirement effectively precluded parents from sending their children to private schools. They could not have their children attend religious schools or other private schools that provided instruction different from that provided by public schools. In effect, they could not send their children to a school where instruction would occur outside the direct view and control of state actors—public school teachers and administrators. This Oregon statute may have struck the Court as verging on Plato’s vision or as taking a significant step toward realizing it.

Some parents affected by the statute challenged it in court, arguing that it violated their constitutional rights. The United States Supreme Court accepted the case. Justice McReynolds again authored the Court’s opinion. The Court decided that the Oregon statute was unconstitutional because it violated the parents’ Fourteenth Amendment due process rights. Justice McReynolds constructed the Court’s opinion on the foundation articulated in his earlier opinion in the Nebraska case. He wrote for a unanimous Court, “The fundamental theory of liberty upon which all governments in the Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from the public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”⁴

With this decision, the Court completed the initial construction of a constitutional right of parental control of children. The Court not only tolerated and fiercely protected parents’ right to control their children but also expressly encouraged parents to make important life decisions for them. Parents possess an extremely large degree of control in this area, and the state must exercise a great deal of restraint.

The Court’s expansion of economic rights through the due process clause of the Fourteenth Amendment lost momentum and was largely reversed during the 1930s.⁵ However, the Court’s construction of parental rights seemingly remained intact, as several subsequent decisions made plain.

In 1972, the Court addressed a case dealing with a Wisconsin statute that required parents to enroll their children in a formal educational program beyond the eighth grade.⁶ Amish parents challenged the statute because the Amish community opposed formal schooling beyond the eighth grade. They asserted that the Wisconsin compulsory education law violated both their right to religious freedom and their right to control the upbringing of their children.

The Supreme Court found that the Wisconsin law was unconstitutional as applied to Amish children, basing its decision on concepts of both religious freedom and parental control. The Court’s opinion reaffirmed both parents’ right to control their children and its earlier decisions in the Nebraska and Oregon cases. As a result of this decision, parents within the Amish community may dictate the religious practices of their children even if that means denying them a formal education. This authority emanates from the United States Constitution, and the majoritarian state cannot diminish or override it.

The dissenting opinion of Justice Douglas is important because it raised the issue of children’s input into decisions that profoundly affect their lives, such as the extent of formal education they receive.⁷ Justice Douglas argued forcefully that the Court should consider the views of the affected high school–age Amish children. A majority of the justices rejected this argument, viewing the case as one that presented only two sets of interests—those of the Amish parents and those of the state. Implicitly, parents’ authority to control their children restrains the authority not only of the state but also that of children themselves. By ignoring the children’s preferences and desires, the Court established parents as the decisive authority over children’s lives in a very wide area of operation.

The Court reemphasized this latter point in a 1982 decision in which it examined the interests of children, parents, and the state in termination of parental rights cases.⁸ In these cases, the state seeks to end the parent-child relationship. Once a court orders termination of parental rights, the affected child and parent stand as completely unrelated individuals in the eyes of the law.

Prior to the Court’s decision, the New York statute authorizing the termination of parental rights required the state to prove by a preponderance of the evidence that the particular parent is unfit. This burden of proof is relatively low, requiring the state to prove only that the allegations of parental unfitness are somewhat more likely true than not. In contrast, a burden of proof that demands clear and convincing evidence requires the state to prove that the allegations are almost certainly true. The Court faced the question of whether the New York statute’s low standard of proof violated parents’ constitutional rights.

In contrast to the Court in the Wisconsin case, the Court in this case did not ignore the children’s interests in the New York termination procedures. However, it effectively silenced children by equating their interests with those of their parents. The Court expressly found that children share an interest with their parents in family reunification and in the avoidance of the termination of their relationship.

The Court made this finding in the face of the realities surrounding many children in involuntary termination of parental rights proceedings. These children are likely not to have lived with either of their biological parents for the two to five years prior to the termination proceedings. Most often, they have lived in a foster care home, interacting with their biological parents infrequently. Their interactions have primarily been with foster parents who have likely woken them every morning, made meals for them every day, entertained them regularly, transported them to various activities, and otherwise been available to meet their daily needs.⁹

Despite this common situation of estrangement between affected parents and their children at the time of termination proceedings, the Court refused to acknowledge that children have interests that may diverge from those of their biological parents. The Court effectively subsumed the children’s interests within their parents’ rights. Once the Court allied the children’s interests with those of their parents, it became easy to find that they overpowered the state’s interests in the relatively low standard of proof. Although the Court could have plausibly allied the children’s interests with those of the state, the Court implicitly rejected this approach, making the case for a constitutionally required heightened standard of proof in termination of parental rights proceedings strong, if not compelling. The Court viewed parental rights as dominant, with a foundation in the due process requirements of the Constitution and with the capacity to subsume children’s interests and overwhelm the states’ interests.

Parental Rights and Flawed Adoption Procedures

The strength of parental rights emerges even more vividly in two high-profile state court adoption cases in the 1990s. In the case of “Baby Jessica,” Jessica’s mother gave her daughter up for adoption at birth.¹⁰ While voluntarily releasing her own parental rights, Jessica’s mother identified the wrong man as Jessica’s father. This man released his rights to Jessica, but Jessica’s actual father did not. Subsequently, Jessica’s father learned of her existence and his relationship to her. He then sought to gain custody of his daughter and to void the adoption.

Because of an extended court battle that involved judges in two states, Jessica lived and thrived in the custody of her adoptive parents for the first three years of her life. However, both the Iowa Supreme Court and the Michigan Supreme Court decided that the biological father’s parental rights had never been terminated and were in full force.¹¹ The state could not displace or disregard the father’s r...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• 1 Introduction: Legal Theories and Approaches Affecting Children
• PART I: ACTIVE PUBLIC SUPPORT FOR CHILD WELL-BEING
• PART II: PUBLIC RESISTANCE TO A COMPREHENSIVE CHILD WELL-BEING APPROACH
• Index
• About the Author