What case first articulated parents' rights to raise their children?
Myer v. Nebraska (1923)
What case first formally recognized children's rights?
Prince v. Massachusetts
What two factors have been deemed determinative in a child's success later in life?
- 1) Healthy relationship with a stable adult
- 2) Their perception of the opportunities available to them
What are two routes to adoption
- Adoption through Probate court ("regular" adoption)
- Adoption through Dependency court (due to long-term foster care)
What four areas of juvenile law do juvenile courts have exclusive jurisdiction over in every state?
- 1) abuse and neglect
- 2) adoption
- 3) status offenses
- 4) delinquency
What is a typical juvenile court structure?
- Dependency Court
- Delinquency Court
- Traffic Court (for status offenses)
Where in the text of the constitution is the fundamental right to parent one's child found and protected?
It is an implied fundamental right protected by the Fourteenth Amendment
What case, and in what year, affirmed the parens patriae doctrine?
Mormon Church v. United States (1890)
What is the essence of the parens patriae doctrine?
That every state has the responsibilty to prevent injury to children.
What is the difference between parens patriae and the police power possessed by states?
While parens patriae gives the state the responsibility to protect individual children, the police power only allows the state to regulate the general welfare.
What standard of scrutiny is applied to a process that revokes parental rights?
strict scrutiny (compelling government interest; narrowly tailored law/process)
What are three reasons why a state might not intervene on a child's behalf?
- The state doesn't want to interfere with personal affairs
- Children are especially vulnerable
- Fear of a state's power growing too much
What was the subject matter of Myer v. Nebraska?
Children younger than eigth grade were being taught in German, which was forbidden by state law.
What did the court hold in Myer v. Nebraska?
- No compelling interest ("No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed.")
- The law was not narrowly tailored ("We are constrained to conclude that the statue as applied is arbitrary and without reasonable relation to any end within the competency of the state.”)
Which case held that the child was not the mere creature of the state?
Pierce v. Society of Sisters
In Pierce v. Society of Sisters, what was the law, and how did the court rule?
- The OR state law required all children to attend public schools until the age of 14.
- The court ruled that the act had no reasonable relation to any purpose within the compentency of the state and interfered with parents' fundamental rights.
What are two theories of why the Founders didn't mention children's rights in the Constitution?
- The framers intended for the issue to be left to the states to resolve.
- The framers never thought that it would be necessary to address children's rights separately from adults' rights.
What proposition regarding the Constitution and children's rights does Brown v. Board of Education stand for?
That children are entitled to Equal Protection under the Constitution.
Per __________, chilren are entitled to similar procedural protections as adults are in ________ _________.
In re Gault; delinquency proceedings
In Prince v. Massachusetts, the guardian implicated whose fundamental rights, and what right did she implicate?
both the child's and her own; free exercise
Which case stands for the following propositions:
"Children do not shed their constitutional rights at the school gates."
Children are persons under the Constitution.
Schools are a marketplace of ideas
"...students are entitled to freedom of expression of their views."
Tinker v. Des Moines Independent Community School District
Black armbands, the vietnam war, and pastors kids are factual elements of which case?
Tinker v. Des Moines Independent Community School District
A black armband worn to protest a war is considered to be _______ _______ speech and _________ protected under the First Amendment when ________ engage in that speech unless it is proven that the speech ____ and ______ disrupts the ________ ___ _________ of the school.
pure political; is; students; substantially, materially; work and discipline
What was Black's dissent in the Tinker case regarding the school's action?
That it was simply a reasonable time, place, or manner restriction.
Keeping kids from doing drugs is an _______, if not __________ ___________. - what case is this quote from, and what was its effect?
important, compelling interest; Morse v. Frederick; it did not clarify the level of scrutiny that must be applied to school speech cases
Are children's free speech rights coextensive with those of adults? Give an example proving your answer.
No; in Fraser, the student's lewd and vulgar comments at a school assembly were allowed to be regulated because his comments did not fall within students' free speech guarantee.
May a school regulate student speech that bears the school's imprimatur?
Yes - Hazelwood v. Kuhlmeier
What were two cases in which children's Fourth Amendment rights were implicated, and why was the particular infringement ruled constitutional?
- Board of Education v. Earls - Drug testing for students in extracarricular activities
- Role models
- voluntary activities
- no results were turned over to legal authorities
- there is a state interest (per Morse) in preventing drug use
- there was an acutal drug problem at the school
- Vernonia - drug testing of athletes
- the potential danger of a youth athlete on drugs
What factors should be considered to determine whether a school drug testing program is constitutional?
- How invasive is the test itself?
- Will the results be turned over to the authorities?
- Is the drug test a result of a voluntary or involuntary activity?
- Are the children being tested in particular positions where they are role models?
Did the Court in Troxel v. Granville apply strict scrutiny to the WA visitation law?
Not necessarily, it employed the language of rational basis review, while the dissent pointed out that a fundamental right is entitled to strict scrutiny
Which part of which case claimed that children's free exercise rights were at stake?
the dissent in Wisconsin v. Yoder, claiming that the parents were forcing their religious views on their children.
What did the majority articulate regarding whose rights were at stake in Wisconsin v. Yoder?
the parents' free exercise rights
Is a child's right to be heard in court a constituionally-created right?
No - it is often the creature of state law.
What is the mature minor doctrine, what case first espoused it, and how did the court apply it?
The mature minor doctrine allows a "mature" minor to make major medical decisions for herself; Belotti v. Baird; the court stated that a minor's access to abortion may not be absolutely limited by statute - if the court finds the minor "mature", the court may not restrict her access to the sought abortion, however, even if she is not mature, the court may make the decision that the abortion is in her best interest
What three reasons did the court in Belotti point out for why children's rights are not co-equal with adults'?
- Peculiar vulnerability
- Inability to make critical decisions in an informed manner
- Importance of parental role in child-rearing
Which factors have been used to determine whether a minor is a "mature minor"?
- General educational background
- History of delinquency
- Evident understanding of the matter at hand
- General demeanor and awareness
- What consequences would befall the child if his/her view prevailed?
- Does the court like the child's decision?
Can the mature minor doctrine be used to excuse a case of statutory rape?
What did Parham v. J.R. hold regarding a parent's interest in their children?
That the "natural bonds of affection" lead parents to act in the best interests of their children.
Is the mature minor doctrine absolutely applied?
No - ex. voting, drinking, driving ages
Can a minor refuse to do community service for a school requirement on constitutional grounds?
What did Roper v. Simmons hold?
That executing the child is in violation of the Eighth and Fourteenth Amendments.
What are some reasons that children are underrepresented in the legal system?
- inexperience of counsel
- unavailability of counsel
- (both issues can be linked to funding)
What determines how much deference counsel gives to a child's judgment/wishes?
- State law
- The child's level of competency (which varies with age)
When is a child's level of competency most hazy?
What is Walter Mlyniec's perspective on why adolescents don't have the same level of competency as adults?
- Observations about behavior:
- Tends to be more risky
- less likely to consider long-term consequences
- More easily influenced by peers and parents
- learning and decision making competence needs to be improved by practice
What do Scott and Grisso say regarding a child's neurological, intellectual, emotional, and psycho-social development?
- Neurological development
- Continues through adolescence
- Esp. in regard to being able to control emotions
- Intellectual development
- Difference between the adolescent and the adult is experience
- Emotional development
- Differ in capacity for impulse control – the ability to let reason rule the decision (a factor of experience as well as development)
- Psycho-social development
- Less risk-averse than adults
- Greater risk-takers
- Future orientation increases
- Others influence choices more
It is advantageous to have _____ participate or give input in court proceedings.
What are some of the biggest difficulties in interiewing a child?
- Children are often unwilling participants
- Children may not understand the purpose of the interview
- Children may not understand the questions that are asked of them
- Children may be unable or less able to express themselves
- Children may be less able to deal with emotional blocks or social pressures
What are some ways to establish a working relationship with a child who you are interviewing?
- Make the child feel at ease (small talk, ask about hobbies, don't appear disrespectful, give the child opportunity to give input)
- Don't appear disrespectful
- Don't assume the role of parent
What are the elements necessary to establish competency for testimony?
- Accuracy (which can be affected by suggestive interviewing)
Which case set forth the necessary elements of competency for testimony?
What is the CA rule regarding competency to testify?
the witness must understand the duty to tell the truth
Is there a Confrontation Clause exception for child witnesses?
What did State v. GC hold?
That a child not need take an oath verbatim; a promise to be truthful may be given in child vernacular.
What was the subject matter of State v. GC?
The child was a victm of sexual abuse, but was not able to perfectly artuclate the oath or the consequences of telling a lie. However, the court found that it was more than appropriate for the child to express in child vernacular htat they understood the consequences of telling a lie.
Who developed a great way to prove children competent to testify?
Lyon and Saywitz
Do children have an ability to sue?
No - Kingsley v. Kingsley - children have a procedural, not substantive disability
What are some differing perspectives on whether a child can advise counsel?
- Extreme ends of the spectrum (all about client empowerment to only if there are legal autonomy rights)
- Balance child's ability to express a preference and the child's ability to make the right decision
- The sliding switch
What are some components of decision making according to Ramsey?
- ability to understand
- ability to reason
- ability to communicate
- sense of values or of what the individual perceives is valuable for himself
What is one challenge in applying Peters' sliding scale competency approach?
The onus is on the attorney to determine the child's interests
Do children have the right to counsel in abuse, neglect, and adoption cases?
It is not constitutionally guaranteed, but in some states, including CA, counsel must be appointed unless the court finds it will not be beneficial for the child.
In which case did a state court find that counsel was ineffective due to high caseloads?
Kenny A. Ex. Rel. Winn. v. Perdue
Which test is applied to determine whether a process which has been followed to TPR satisfies due process?
- Matthews v. EldridgeNature of private interest
- Risk of erroneous deprivation
- Governmental interest
Do minors have the right to select counsel?
Yes, but the right is not absolute; In In re the interest of AW, the court allowed the minor to substitute private counsel for the public guardian absent evidence of coercion.
What is the standard for malpractice for an attorney working in dependency situations?
- Bad faith
- (There is absolute immunity for attorneys working in a "best interest" role)
Do minors have a right to counsel in delinquency procedings?
In the adjudicatory phase, but zealous advocacy is not necessarily required at the dispositional phase (In re Gault)
In CA, is a juvenile entitled to counsel during delinquency proceedings?
Yes, at every stage, but a child may intelligently waive those rights
What is the standard for malpractice in delinquency proceedings?
- Strickland v. Washington1) Counsel's performance fell below an objective standard of reasonableness
- 2) but for counsel's errors, the defendant would not have suffered an adverse result (prejudice)
Apart from failing to measure up, how else may IAC be proven?
through a conflict of interest
May IAC ever be presumed?
Yes - in very rare cases - United States v. Cronic
When may a state intervene in a family situation?
To protect the child's health or safety.
What famous case spawned abuse and neglect laws?
the Mary Ellen case
When did physicians become mandatory reporters of suspected child abuse?
How many categories of mandatory reporters are there in CA, and what is the procedure that is followed when a report is made?
30; an investigation by CPS is required if there are credible facts within the report that indicate child abuse OR if the report does not indicate child abuse, then an investigation does not need to take place
What did the court conclude in Valmonte v. Bane regarding the procedure for child abuse registrants?
- The private interest implicated was a liberty interest: stigma and the ability to secure future employment
- There was risk of erroneous deprivation because the "some credible evidence" standard was too low
- The government's interest was present in this case (to protect chidren within its care) but was not outweighed by the private liberty interest
Should parents be able to have their rights restored after the court terminates them?
Yes, if the parents have been rehabilitated - In Re Knowack
If a statute allowed children to be removed from the home when there is a threat of serous physical injury, will it pass strict scrutiny?
Yes - In re Juvenile Appeal
What is the focus of civil maltreatment cases?
preserving the safety of the child
In CA, may a minor seek a protective order?
Yes, if they are 12 or older, but the court has discretion to appoint a GAL
Per In re Shelly J. what three things need to be proven to show psychological maltreatment under WIC 300(c)?
- Offending parental conduct
- Serious emotional harm
What are the causes of failure to thrive?
medical or psychological causes
What kind of pathological conditions can indicate abuse?
Patterns of bruising or burning that look like they were done with an object; fractures that could not have happened accidentally
What are some factors that put children at a greater risk for abuse than their siblings?
- substance abuse
What are some factors that tend to protect children from abuse?
- good family structure
- stable parents
- good health
- good coping mechanism
- positive self-esteem
- good social skills
- active parenting
What did In the interest of T.A. hold regarding the parent's use of corporal punishment?
- That it was not reasonable in force, because bruises remained for days
- Force itself was unecessary because alternate means would have been effective
Did the state intervene in In re TG (on the basis of failure to protect)? Why or why not?
Yes, they found by clear and convincing evidence that the mother chose to ingore the sexual abuse and remain with her boyfriend, even when faced with the possibilty of losing her daughters, and this was the least restrictive means available in this case
Can the hearsay statements of a child victim of sexual abuse be admitted in court?
Yes, as long as there is validation evidence - In re Nicole V.
Is a positive toxicology, by itself, enough evidence of abuse or neglect?
No - there must be corroborating evidence - In re Dante M.
Can evidence of abuse of one child be admitted as proof of abuse of another child in the same home?
yes - In re Dante M.
When does a person have a cause of action against the state for not acting to protect him?
- When there is a mandatory duty
- If the breach of that duty is the proximate cause of injury
- (Deshaney v. Winnebago County Department Social Services)
Does the prosecutor play a role in dependency proceedings?
It depends on state law, but there can be problems with conflicts of interest
What is the state's responsibility prior to seeking TPR in order to recieve Federal Funding?
they must make reasonable efforts to reunite parents with their children
What CA case allows hearsay statements from child victims in sexual abuse cases?
In re Cindy L.
What are some indicators of reliability of a statement a child victim makes?
- Spontenaeity of the statement
- Developmentally appropriate terminology
In CA, may a child born with a positive toxicology be enough to presume abuse?
Yes, - In re Monica T.
In CA, how often must the state show it has made reasonable efforts at reunification?
at every hearing
In Santosky v. Kramer, what standard did the NY statute set for TPR, and what standard did the court determine was required per Matthews v. Eldridge?
fair preponderance of the evidence; clear and convincing evidence
What 4 reasons does MLB v. SLI give for continuting to value TPR appeals even with a clear and convincing evidence standard?
- Appearance of justice
- Lax application of rules of procedure and evidence during dependency proceedings
- Avoidance of unreviewable trial court authority
- Even a C&C evidentiary standard leaves room for error
What are some bases for TPR?
- Abandonment (In re Adoption of B.O.)Abuse is unlikely to be remedied (In re Jeffrey R.L.)
- Failure to complete the reunification plan (In re Ashley A.)
What two elements of abandonment were set forth in In re adoption of B.O.?
- Whether the parent's conduct evidenced a conscious disregard for parental obligations
- Whether the parent's neglect of those obligations led to the destruction of the parent-child relationship
Why is education so important?
- Future employability
- Ability to participate in the democratic process
- Crime prevention
- Education fosters equality
What was the central holding of PARC v. Pennsylvania?
That all persons between the ages of 6 and 21 are entitled to a free public program of education appropriate for his capacity
Which case required an IEP as part of FAPE?
Mills v. Board of Education
What three main bodies of Federal law affect children in Special education? What are the basic gists of each?
- IDEAguarantees FAPE
- applies only to a child with a disability who needs special education by virtue of that disability
- ADAapplies to any public entity or public place
- protects all individuals with disabilities
- Section 504applies to any Federal entity or any entity receiving Federal funding
- makes it impermissible for discrimination or denial of benefits on the basis of disability
In CA, what is done if a parent is not making appropriate decisions regardng a child's educational needs?
the state appoints an advocate
What did Board of Education v. Rowley require regarding FAPE?
- To determine:
- 1) whether the state has complied with the procedures set forth in the act
- 2) whether the IEP developed through the procedures is reasonably calculated to enable the child to recieve educational benefits.
What kind of services are required under IDEA?
Anything except non-diagnostic medical services (i.e. something a doctor does)
Under IDEA, are schools required to maximize a child'd potential?
No - Cedar Rapids
What are some things that Tinker's progeny state regarding those things that can be considered when determining whether restrictions on student speech are permissible?
- The ages of the students (Walker -Serrano)
- Prior disruption (Scott v. School Board), threat of disruption (Boim), but the school need not wait for an actual disruption (Lafon)
Are children absolutely protected by the Fourth Amendment?
How did CAPTA change representation of children?
By providing funding for states and a setting a minimum definition of abuse and neglect
What are some pitfalls of CAPTA?
- It may encourage adoptions when not appropriate
- It might encourage removal/intervention earlier than necessary
what did Kenny A. Ex. Rel. Winn. hold regarding a child's entitlement to counsel during deprivation hearings?
That a child's liberty interest in familial integrity is implicated, so independent counsel must be appointed (GA case)
What are some causes of less than zealous advocacy?
- High caseloads
- No independent research
- Lawyers not taking juvenile court as seriously as “adult court”
What seven findings did the court in In re ST make when it TPR'd?
- 1) parents unfit, substantially neglectful, and incompetent parents
- 2) father is unable to care for the children's immediate and cotninuing physical or emotional needs for extened periods of time
- 3) parents continuously fail to meet the children's physical, emotional, and educational needs and to assume daily routine child care responsibilities
- 4) parents are unable or unwilling to correct the circumstances, conduct, or conditions leading to the removal of the children, notwithstanding resonable and appropriate efforts by DCFS to return the children home
- 5) the children's family identity is with their foster family, and the foster parents can provide stability and security for the children
- 6) the children are special needs children who require extraordinary parental involvement, and foster parents are more capable than appellants to provide them with what they need
- 7) It is in the best interest of the children to TPR permanently
What are some symptoms, besides obvious markings, of physical abuse?
The child is reserved, noncommunicative, multiple emergency room visits late at night, parents are unsurprised or uncaring about serious injury
What is the definition of neglect that the Court used in Santosky v. Kramer?
the natural parents failed substantially and continuously or repeatedly to maintain contact with or plan for the future of the child although financially and physically able to do so
Is it constitutionally required for indigent parents to be appointed counsel in TPR proceedings?
No - Lassister v. Department of Social Services
What did In re Carmen O establish?
The CA child dependency hearsay exception
In CA, what three things can be used to prove psychological maltreatment?
WIC 300 - severe anxiety, depression, or withdrawal
Does a child have to approve when their parents file suit on their behalf?