I.
The Status, Rights and Obligations of Children A. An Introduction to the Juvenile Court System 1. Juvenile Court Jurisdiction a. Every state has a trial court devoted to various proceedings relating to children called the “juvenile court” b. NO right to jury trial ALL bench trials in juv. Crt. c. Juvenile courts typically have exclusive original jurisdiction over (4 arms of jurisdiction): 1. Abuse and Neglect (civil not criminal) = determines the state’s claims that a parent/custodian 1) has physically, emotionally or sexually abused the child, or 2) has failed to provide the child w/ minimal level of support, education, nutrition, medical or other care necessary for child’s wellbeing. [criminal A & N charges are heard in criminal crt. NOT juv. Crt.] 2. Adoption = termination of the parent-child relationship b/c child and natural parents (stepparents parental rights are not terminated) 3. Status Offenses = sanctionable only b/c person who committed it is a juvenile (not crimes for adults) [Ex: truancy, runaways, ungovernability, etc.) 4. Delinquency = when a juvenile allegedly committed an act that would be a crime if committed by an adult d. Some states hear other various matters such as: juvenile traffic offenses guardianship proceedings commitment proceedings for mentally ill or seriously disabled children proceedings for consent to abortion or underage marriage paternity proceedings child support proceedings e. Critics: 1. Juve. Crt’s are too easy on kids 2. Unified Family Courts (UFC) a. Several jurisdictions have replaced juve. Crts with unified family courts. (~ 20 states including MO) b. Enables one specialist judge, working w/ social service workers and other support personnel, to resolve matters typically associated w/ distressed families. c. Subject matter jurisdiction = 4 arms of jurisdiction + :
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1. Divorce proceedings 2. Paternity suits 3. Criminal abuse and neglect 4. Domestic violence 5. Emancipation (marriage or military service) 6. Protective orders d. In MO judge has 2 year term in UFC e. Expense of creating a family court is not worthwhile in smaller counties f. Benefits: 1. Kids only testify once 2. Combines family problems 3. Simplifies the system 4. Judge really knows the family involved
B. The Law’s Evolving Conception of Children’s Status, Rights and Obligations 1. The Status of Childhood a. Status of a child lasts until a person reaches the general age of majority = 18 (in most states) b. Alaska, Nebraska & Wyoming majority = 19 c. Supreme Court has held that equal protection requires that the general age of majority be the same for boys and girls (Stanton v. Stanton) d. Used to be 21 but was lowered in 1970’s e. General age of majority does not determine adult status in all circumstances (Ex: alcohol and some criminal prosecutions or driving) f. General age of majority ignores individual maturity g. However, sometimes adult status is conferred by individualized determination rather than applying the general standard. [Ex: a court may find a pregnant child to be mature enough to decide whether to have an abortion or not] (see Bellotti v. Baird) [mature-minor doctrine] h. The law views children as vulnerable, incapable and needing protection in some circumstances, but as holding const. rights, decisionmaking ability and personal responsibility in others. (A person may be a child for one circumstance but an adult for another). 2. The Parens Patriae Doctrine a. = state’s limited paternalistic power to protect or promote the welfare of certain individuals (like children) who lack the capacity to act in their own best interests. b. Can be used to justify all state actions (gives state standing/authority) c. Derived from English common law gave Crown ability and responsibility to protect person deemed legally
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incapable of caring for themselves (very narrow b/c wealthy children only) d. Came to US in colonial period (not as narrow) e. 1890 – Sup. Crt. held doctrine was “inherent in the supreme power of every state” Mormon Church v. US f. Guiding force behind 1st juv. Crt. in 1899 g. Allows state to pursue ends that would be impermissible under normal police power b/c they are unrelated to any harm to 3rd parties or to the public welfare. h. Acting in this capacity, state should advance only the best interest of the child (it should make decisions in the same way that the individual would if fully competent). i. Traditionally, courts have been reluctant to interfere in family affairs j. Reasons for low threshold to intervene: 1. uncomfortable invading family privacy 2. don’t want to punish parents for low $ 3. parent’s sub. Due process right weighs heavy 4. sometimes kids would be worse off in foster care 3. Police Powers a. = “state’s inherent plenary power both to prevent its citizens from harming one another and to promote all aspects of the public welfare.” b. In addition to parens patriae authority, state may regulate children and family under its general police powers. 4. Enforcement Difficulties a. Doctrine of const. privacy b. Retaliation - Person enforced against may retaliate and injure the very person the law is trying to protect c. Psychological pressure – sometimes the law can’t regulate the behavior of people who do not want to be regulated d. Morality – hard to enforce morality/social reform 5. Parent’s Interest a. The 14th amend. guarantees that states will not deprive their citizens of liberty w/o due process of law. b. Parents have a substantive due process right to raise their children free from unreasonable state interference (Meyer; Pierce) c. Crts. frequently call the interest “fundamental,” thought the two seminal decisions used “reasonableness” scrutiny. d. Lower crts have ordinarily applied rational basis, rather than strict scrutiny to determine the strength of the state interest in disputes w/ parents invoking due process. e. Meyer v. Nebraska (Gov. vs. Parents) [Test = Rational basis scrutiny]
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1. Struck down a statute that permitted instruction only in English below the 8th grade b/c it violated the due process liberty interest of the teacher to teach in German, and of the parents to hire him to do so. (Parent has the right to engage a teacher to instruct their child) 2. Recognized a parent’s due process liberty interest in “establishing a home and bringing up children.” 3. Recognized state’s parens patriae authority “to compel attendance at some school and to make reasonable regulations for all schools” and to “prescribe a curriculum for institutions which it supports” 4. Parents interest won - “natural duty of the parent to give his children education suitable to their station in life” 5. Crt. gave no regard to children’s interest f. Stanley v. IL 1. cited Meyer to support proposition that following the natural mother’s death, due process and EPC guarantee an unwed father a fitness hearing before the state may deny him custody of his illegt. kids g. Pierce v. Society of Sisters (Gov. vs. Parents) [Test = Rational basis scrutiny] 1. Crt. struck down a state statute that required parents to send their children b/w 8 and 16 to public school, and not private or parochial school. 2. Held: challenged statute unreasonably interfered w/ the parent’s interest to “direct the upbringing and education of children under their control” 3. “No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare” 4. “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.” 5. Crt. gave no regard to children’s interest 6. Child’s Interest
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a. Used to be considered quasi-property b. Children hold rights under fed. Const. (after Meyer & Pierce) c. However, children’s rights are not necessarily coextensive w/ adult’s rights in every situation d. 2 reasons why children received no explicit attention when the fed. Const. was drafted: 1. never occurred to the Framers that children need const. status 2. States rather than fed. gov. should regulate the parent-child relationship e. Prince v. Massachusetts (Outlined child’s interest) 1. Crt. upheld the custodial aunt’s conviction for violating the state child labor law by permitting her 9 yr. old niece to accompany her and seek to sell Jehovah’s Witnesses periodicals on a public street. 2. * Prince FINALLY recognizes children’s 14th amend. rights 3. Remains Sup. Crt. leading decision upholding state authority under the fed. Const. to enact child labor legislation 4. “it is the interest of youth itself . . . that children be . . . given opportunities for growth into free and independent well-developed men and citizens.” 5. Identified a “private realm of family life which the sate cannot enter” 6. “Two claimed liberties at stake. One is parent’s to bring up the child in the way they see fit and to teach him the tenets and practices of their faith. The other freedom is the child’s to observe these.” 7. “State’s authority over children is broader thatn over the like actions of adults” 8. It is in “the interests of society to protect the welfare of children” f. Brown v. Board of Edu. (Gov. vs. Children) (vindicated children’s substantive const. rights) 1. Unanimously held that racial segregation in the public schools denies EP guaranteed by the 14th amend. 2. P’s were children themselves (1st case where kids were P’s before Sup. Crt. – but had occurred in lower courts) 3. Squarely established substantive rights for children. (Cooper v. Aaron reiterated this)
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g. In re Gault (Gov. vs. children) (vindicated children’s procedural const. rights) 1. Established procedural rights for children. 2. * Biggest children’s rights case 3. Most celebrated juvenile law decision 4. Overcame the Const.’s failure to explicitly mention children “Neither the 14th amend. nor the BOR is for children alone” (children are persons under the 14th amend.) 5. Held: a juvenile is entitled to several due process rights during the adjudicatory phase of any delinquency proceeding that might result in secure detention. 6. Undermined state’s parens patriae authority to exercise informal discretion in delinquency proceedings (virtually free of procedural guarantees available to adult criminal Ds). h. Planned Parenthood v. Danforth 1. “constitutional rights do not mature and come into being magically only when one attains the statedefined age of majority. Minors as well as adults, are protected by the Const. and possess const. rights” 2. 2 reasons why const. rights of children are not = to those of adults: i. the peculiar vulnerability of children ii. their inability to make critical decisions in an informed, mature manner iii. and the importance of the parental role in child rearing (Bellotti v. Baird) i. Tinker v. Des Moines School Dist. (highwater mark for children’s rights – but limited today) 1. Crt. upheld the 1st amend. rights of 3 students to wear armbands in their public schools to express their opposition to war. 2. “students in school as well as out of school are ‘persons’ under the const.” and do NOT ‘shed their const. rights to freedom of speech or expression at the schoolhouse gate” 3. On the other hand, school officials hold “comprehensive authority . . . consistent w/ fundamental safeguards, to prescribe and control conduct in the schools.” 4. BUT “school officials do not possess absolute authority over their students. Students are
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possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the state.” 5. This right is limited only by that which would “materially and substantially interfere w/ the requirements of appropriate discipline in the operation of the school.” 6. Right could be lost if there is a disruption or an unreasonable threat of disruption 7. Pure vs. symbolic speech (pure comes out of mouth; symbolic is other ex: armband) j. Tinker made these cases legitable: 1. (Philips v. Anderson School Dist.) – school authorities are not required to wait until disorder or invasion occurs – held school officials properly suspended middle school student who refused to stop wearing his Confederate flag jacket to school – reasonably forsaw likelihood of disruption or violence stemming from that activity 2. Hair length regulations: Crts divided 3. Dresscodes: often implemented for safety reasons (tend to be upheld by crts. w/ a showing of good reason) 4. (Goss v. Lopez) – Crt. held that where a state provides entitlement to a free public education, public school students have a 14th amend. property interest in that and a liberty interest in not having their reputations sullied by suspension for < than good cause. When a student faces suspension for less than 10 days requires “an informal” oral or written notice of the charges against him and if denied then an explanation of the evidence the authorities have and an opportunity to present his side of the story. As a general rule notice & hearing should precede removal of the student from school. 5. (Board of Edu. v. Pico) – School board’s removal of a library book implicated a 1st amend right of the students to “receive info. and ideas” but acknowledged that the right is construed “in light of the special characteristics of the school environment.” The school board denies the right when it acts with intent to deny students access to ideas with which the board disagrees.
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6. (NJ v. TLO) – 4th amend. applies to students; the validity of a school official’s search of a student depends on the search’s reasonableness under all the circumstances, and not on probable cause. 7. (Bethel School Dist. V Fraser) – student cannot make a speech laced with “pervasive sexual innuendos” or vulgar and obscene speech. (distinguished from Tinker’s political speech) 8. (Hazelwood v. Kuhlmeier) – School may regulate contents of its student-run newspaper as long as the regulation is reasonably related to some educational purpose. “Educators do not offend the 1st amend. by exercising editorial control over the style and content of student speech in schoolsponsored expressive activities so long as reasonably related to concerns.” 9. (Vernonia School Dist. v. Acton) – [Extended TLO] Upheld random urinalysis drug testing of its interscholastic athletes. Court found the search reasonable b/c its intrusion on student privacy was “negligible” and the gov. concern was “important” perhaps “compelling” and b/c student athletes only had a “decreased” expectation of privacy. Note for a school to institute a program like this, the school must 1st prove there is a drug problem and that the testing directly relates to that problem. 10. (Board of Edu. v. Earls) – [Expands Acton – substantially puts limits on Tinker] Rejects argument that drug testing must presumptively be based upon individualized reasonable suspicion of wrongdoing b/c such a testing regime would be less intrusive. Allows random suspicionless urinalysis drug testing in all competitive extracurricular activities, including non-athletic activities. 11. (Troxel v. Granville) – [liberty interest here = parent’s interest in care, custody, and control of children] Presumption that fit parent will act in best interests of child. Presumption is hard to rebut. (Fit parents gets to decide what’s the best decision re: grandparent visitation.) k. May Children Articulate their own interests? 1. Wisconsin v. Yoder i. Held: Amish parent’s conviction for not sending their child to school until age of 16,
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violated the parent’s 1st amend. rights (religion). ii. [Maj] interests of children was not at issue here b/c not relevant to crime (not an element or defense that children did not want to go to school) iii. [Douglas Dissent] Children have a const. due process right themselves to a hearing to determine whether they wished to attend school past the 8th grade. (perhaps could be 1st amend. right too) iv. No Const. right for children to be hear. v. Most states (including MO) grant broad statutory rights for children to be heard even when a child is not a main party. vi. Even w/o statutes judge will probably still listen to the children 2. Mature – Minor Doctrine i. Allows children to be heard and perhaps prevail if a court finds them mature enough even though they’re under the age of maj. ii. sometimes crts consider the wishes of a child who appears capable of articulating a reasoned preference on matters important to the child’s welfare. iii. Offers some flexibility in matters relating to children below the general age of majority (arbitrary line). iv. Child must be very mature v. If statute forces an age on states, then there is usually not much room for this doctrine vi. Types of cases for mature-minor doctrine: 1. abortion 2. guardianship/adoption 3. abuse & neglect 4. vii. Things the crt. looks at: 1. Personal testimony 2. Child’s education 3. Familiarity w/ the issue (understanding) 4. Timing (can’t wait until child turns 18?) 5. Child’s responsibility 6. Child’s age 7. Child’s Lifestyle
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3. Constitutional Provisions i. Execution of a child < 18 = violation of 8th amend. ii. BUT people who committed crimes while < 18 were executed after turning 18 iii. Policy: Juveniles (and mental retards) do not have the capacity to understand why 4. Statutory Influence i. Individuals w/ Disabilities Edu. Act (IDEA) 1. Heavily litigated 2. Defines fed. right children have to a free public education (till 1960’s this was not a guaranteed right to kids w/ disabilities) 3. Passed in 1970’s 4. = fed. funding statute guaranteeing the right to free “appropriate” education for ALL children (widely disputed what “appropriate” is) 5. Process: a. Child must be diagnosed w/ disability recognized under the statute b. School must create an individual educational program for each child (which can be very expensive) c. Parents have a unilateral right to bring suit, but risk liability if the court finds that the action is not proper. 6. Statute encourages mainstreaming = placing persons w/ disabilities in regular classes w/ other regular children ii. Cedar Rapids School Dist. v. Garret 1. Issue: whether the definition of “related services” requires a public school dist. to provide a ventilatordependent student w/ certain nursing services during school hours = YES 5. Parham v. J.R.
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i. Crt. should give great weight to parent’s preference when the parent opposes child’s wishes. ii. Parent’s act in children’s best interest iii. Most children are not capable of making decisions about important matters such as medical care 6. Bellotti v. Baird i. Where a state requires a minor to obtain the consent of one or both of her parents to an abortion, the state must permit the minor the opportunity, if she desires, to seek court approval directly w/o first consulting or notifying her parents. ii. “If she satisfies the court that she is mature and well enough informed to make intelligently the abortion decision on her own, the court must authorize her to act w/o parental consultation or consent. (If she cannot satisfy this than she must persuade the court that an abortion is in her best interests and the crt. then must authorize the abortion). iii. Carved out a narrow const. zone of privacy for mature minors. 7. In the case of Lori M. i. Expands Bellotti to allow children the 1st amend. right of freedom of association (lesbian case) 8. In re: E.G. i. A mature minor may refuse consent to medical care. l. An international-law basis for Children’s rights 1. UN convention on Rights of Children i. Most widely and quickly ratified treaty in the world ii. Only 2 countries have not ratified it: 1. Somalia 2. US iii. If ratified = supreme law of the land b/c Supremacy clause iv. No enforcement behind the treaty (no teeth) 7. Overall a. Crts. use balancing/weighing process b. Once Crt. finds Abuse & Neglect state’s parens patriae interest trumps parent’s interest
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c. d. e. f. g.
h. i. j. k.
l.
II.
The Triad = 1) child 2) state and 3 parents interests Reasons State’s interest must show rational basis Parent’s interest under strict scrutiny Factors to consider: 1. financial ability – is decision based on $ 2. age of child/level of maturity 3. prognosis/ability to recover (likelihood of success and available alternatives) Questions are fact specific b/c the standard is extremely discretionary In loco parentis Doctrine = (“in place of the parent”) under common law, a person who assumes parental obligations is treated as a parent for some purposes. There is no coherent approach or philosophy (by leg. Or crts) when it comes to addressing questions of children’s rights 4 different types of claims under the general rubric of children’s rights: 1. Generalized claims against the world (e.g. right of freedom from discrimination and poverty) 2. Right to greater protection from abuse, neglect or exploitation by adults 3. Right to be treated in same manner as adult 4. Right to act independently of parental control and/or guidance Reasons for failure of children’s initiatives: 1. Children don’t vote and no lobby has appeared on their behalf 2. The reforms of one generation become the problems to be reformed by later generations 3. Children’s needs are connected to large issues (economy) 4. Culture and ideology produce great resistance to state intervention in families
Abuse and Neglect A. Introduction 1. Broad language in abuse and neglect statutes a. Void for vagueness argument is usually a losing argument (test = whether a person of avg. intelligence is on fair warning as to whether his acts will constitute abuse of neglect) 2. Bifurcated proceeding: a. Liability b. Remedy/resolution (temporary or permanent)
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3. Reasonably anticipated harm as well as actual harm can be a basis for state intervention (b/c the state does not have to wait until the child is actually injured before it can act). 4. Civil vs. criminal a. Focus is on the condition of the child (NOT guilt/innocence of accused criminal) b. Criminal standard = beyond reasonable doubt c. Civil Remedy = foster care (private family take in small # of children and give them substitute care until child can be adopted or sent home) 5. Once abuse & neglect is found, parens patriae (state power) wins over parent’s due process right to raise their children how they see fit 6. Children do not have a due process right to a good home. 7. Law does not normally interfere w/ intact families unless they’re obviously under the threshold (Threshold of parenthood is quiet low until there is a divorce) 8. Why is the threshold so low?: a. Foster care limbo may be worse than kids staying w/ family (state may not be able to do any better) b. Parent’s due process right (Meyer & Pierce – const. right not to have unreasonable state interference) c. General reluctance to invade privacy rights d. Hard to get physical evidence e. Vague line b/c discipline and abuse 9. Abuse = (beyond discipline) when some agency or crt. determines its abuse 10. Poverty is NOT in itself a reason to remove children (but may be a factor among others) 11. States have 4 sets of laws dealing w/ A & N: a. Reporting statutes b. Child protective statutes c. Criminal statutes d. Social services statutes 12. 3 Major systems in child protection: a. Criminal Law b. Child welfare system 1. tries to work w/ and help poor families in a way short of removing the children permanently c. Child protection system 1. MO Division of family services (DFS) 2. Began in NY i. 1854 – 1929 orphan trains (NY Midwest) ii. 1874 Mary Ellen brought in to court and it was argued she deserved same protections against abuse as animals. In response to
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Mary Ellen case – NY enacted a child protection statute iii. 1870’s 1st child abuse laws (but not enforced) iv. 1880 – 1890 MO passes child protection laws (not until WWII did MO have a sustained child protection system) v. 1899 – juvenile court system began 3. Agency downfalls: i. Poor organization (inadequate communications) ii. Admin. rules/regulations = barrier to efficiency iii. Crushing caseloads iv. Informal “turf” wars v. Complicated when criminal agencies get involved 13. Abuse & Neglect creates psychological impacts in learning: a. Short term difficulties; eg, poor school performance, delinquency b. Long term; eg, intergenerational problems, adult criminal behavior 14. Why more cases of child abuse today? a. Greater ease and acceptance of reporting b. More children B. Discovering Abuse and Neglect: Reporting Statutes 1. Child Abuse Prevention and Treatment Act (CAPTA) a. Provided funding to the states for child abuse & neglect reporting & investigation; required appointment of guardians ad litem for abused/neglected children; established National Center on Child A &N. b. Broad definition of maltreatment c. MO already had rudimentary reporting statutes d. Comes from general proposition that most abuse and neglect happen behind closed doors and these reporting statutes make it easier for officials to catch it e. New party of interest = reporting party (need protection if wrong) [easier it is to file reports easier it is to be wrong] 2. REPORTING Mandatory Reporters vs. Permissive Reporters Medical personnel anyone who is not a Teachers mandatory reporter Child care givers Law enforcement personnel (can’t be prosecuted for Not lawyers Not reporting)
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a. Identification of battered child syndrome in 1962 = catalyst for reporting laws b. 1967 - All states had adopted reporting laws (Congress used power of the purse/fed. $) 1. Under fed. mandate state must maintain 24 hour hotline 2. Statute says state must investigate each call w/in 24 hours of receiving report unless child is not coming to school 72 hours (educational neglect) 3. DFS even follows up anonymous phone calls 4. Staff must decide whether allegations, if true, would be legally sufficient to constitute child abuse. If not, then story ends, if yes, then DFS investigates. 5. Welfare workers decide whether to bring a charge of abuse – neglect or both. c. Distinguish b/w reported and substantiated cases (65%) [30% receive significant intervention] d. Why are these people mandatory?: 1. access to children 2. objective 3rd parties 3. professionals who should know about reporting e. Permissive reporters are immune from liability (criminal and civil) w/ the exception of bad faith reporters (divorce) f. Note: mandatory reporting requires immediate report of an incident; if it’s not possible, then one under duty to report should do it ASAP. Crts have found liability for nonreporting up to 15 yrs after the alleged act took place. g. Mandatory: Prosecution for failure to report is rare especially in non-medical fields (hard to determine whether there was a reasonable belief) h. Are baby-sitters mandatory reporters? i. Central registry = typically accessible by gov. entities, day care providers, youth programs, or other organizations that engage employees/volunteers to work w/ children so they can screen applicants. 1. Lists persons accused of A or N 2. Where state law permits such private access the law creates a duty to investigate and failure to do so may result in a negligence charge by the victim. 3. After placing the alleged abuser/neglecter on the register, DFS may also want to bring a civil or criminal proceeding 3. Valmonte v. Bane (slapping daughter case)
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a. County child welfare agency found that mother engaged in excessive corporal punishment but family court dismissed on the condition that she receive counseling. b. Despite the dismissal, mother is listed in state Register c. P claimed her 14th amend. due process liberty rights were infringed (liberty interest in her reputation – and she was a child worker so she probably could argue a property interest too). d. P claimed the risk of erroneous listing was too great b/c the Register retained reports supported merely by “some credible evidence” (too low of a standard) e. In MO standard = probable cause f. In response to this case NY law now provides disclosure to a potential employer may be made only after the listed person has had an opportunity for an administrative hearing and a showing that the report is relevant to the prospective employment. g. Hearings did apply “some credible evid.” Standard but now test = probably cause (75% of names had to be removed – indicating mistakes in 1st hearing) C. Limits on Intervention 1. In re Knowack a. Child was placed in custody of Children’s Aid Society and didn’t relinquish custody Crt. holds periodic reviews of private providers and now crt. decides when child goes home (Crt. has power to restore kids back to parents) b. Modern Rule: If A & N is found juvenile crts jurisdiction attaches as soon as petition is filed until the child reaches age of majority. 2. In re Juvenile Appeal (Summary seizure case) a. 9 mth old died and crt. found no clear and convincing evid. Boy died from abuse or neglect b. State’s interest in intervention is compelling only when the children face serious physical illness, injury or immediate physical danger. c. Disposition phase is tougher b/c no burden to rely on and big stakes 3. Doctrine of Transferred Abuse/Neglect a. = abuse/neglect of one child can establish a large enough danger for the other children that crt. doesn’t have to wait for harm to happen before taking away the other kids b. abuse/neglect of one child = prima facie evidence or provides grounds for removing other non-abused or neglected children (especially if one child was severely injured or killed.
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c. If a parent has been convicted of murdering one child, the conviction will be grounds for finding that the other kids in the same household, under the same circumstances, are abused and or neglected. D. Patterns of Abuse and Neglect 1. Neglect a. Parents are more open to help and cooperate w/ DFS b. Usually involves nonfeasance c. In re ST 1. Raised # conditions that appear frequently: i. Skin problems (maybe due to poor hygiene) ii. Sunburn, frostbite, ongoing diseases iii. Malnourishment iv. Lag in physical/mental growth v. Inadequate medical care vi. Physical appearance (deformity from drugs) vii. Failure to provide education 2. Parents held responsible for failure to thrive (the kids grew after being put in foster care) 3. In order to terminate parental rights (TPR) you must exhaust all due process remedies d. Failure to Thrive 1. = (aka growth deficiency) a condition in which the child’s weight and linear growth have fallen below standard measures or have significantly dropped without a physical cause. 2. To prove, State must document that child started to grow normally but then failed to grow. 3. Children not treated can suffer permanent physical, cognitive and behavioral impairment. e. Emotional Neglect 1. Threat of emotional harm has been found sufficient to justify intervention even if no actual harm is shown in some states 2. Due to maternal (parental) deprivation 3. States disagree about when this may be used as a predicate for intervention (some focus on condition of child; others focus on parental behavior). f. Newborns w/ positive toxicologies for drugs 1. Babies are > likely to be born healthy if their mothers have prenatal care, receive good nutrition, and refrain from alcohol and drugs. 2. Several states require hospitals to perform toxicology tests on newborns and to report positive results to child welfare agencies.
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3. Some states explicitly define neglect to include prenatal exposure to a controlled substance (but not alcohol and tobacco) 4. In other states, a positive toxicology for a controlled substance alone does not prove abuse b/c it fails to establish that the infant will be at substantial risk (however, a positive toxicology report in conjunction w/ other evidence would be sufficient to support a neglect finding). (see Dante below) 5. Concern about regulating pregnant women = it may deter many expectant mothers from seeking help 6. In re Dante M i. Holding = More than a positive toxicology is generally required for a neglect determination (need other evidence in conjunction w/ this) OR positive toxicology report plus other evidence my support a neglect finding. 7. South Carolina prosecuted mothers for taking drugs during pregnancy (problem = whether fetus is a child) *Most crts said legislature did not intend for fetus to be included in term child 8. Prosecutions for abuse under this category usually fail b/c most statutes aim to protect children (not unborn children) 9. Criticisms: i. Unequal punishment of women ii. “ “ “ poor iii. Discourages pre-natal care iv. 10. Neglect proceeding is better route b/c mother may be liable for neglect of fetus if: i. Child is born ii. Positive toxicology on child iii. Some states include prenatal drug exposure in definition of neglect 11. Difference b/w neglect & abuse w/ this category? 2. Abuse a. Easier to prove (than neglect) b. May get kids out of house quicker c. Shuts parents out and puts them on the defensive (Don’t appreciate or want help from people calling them abusers) d. Usually involves malfeasance. e. Some parents target one child to abuse f. Generally medical evidence must establish that the child’s injury was not accidental. (physician’s testimony may be
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enough to authorize state intervention and removal of custody) g. Battered Child Syndrome 1. syndrome = collection of behaviors and/or manifestations strongly indicating something happened 2. Dr. C. Henry Kempe Article lead to Child Abuse & Prevention Act (CAPA) 3. Characteristics that strongly suggest child abuse still need medical evidence: i. To help prove case in crt. ii. Alert medical professionals 4. Things to look for: i. Can occur in any age of children but usually occurs in those under the age of 3 ii. Injuries in various stages of healing iii. Marked discrepancy b/w clinical findings and what parents say happened iv. W/drawn child; noncomunicative; flinching v. Unusual hour ER visits vi. Parents reluctant to give info. vii. Parents have bizarre reaction viii. Child visits multiple hospitals ix. Child suffers no new injuries while hospitalized 5. NOTE: this syndrome may also be used as a defense in a later proceeding in which the battered child kills the “battering” parent h. Shaken Baby Syndrome (identified in early 1970’s) 1. Caused by parent who severely shakes an infant 2. No external injury is seen but the shaking can cause death or severe brain injury 3. Possible results: i. Blindness ii. Broken neck iii. Whiplash i. Why parents abuse: 1. Correlation b/w past and present abuse (intergenerational) 2. Correlation b/w low socioeconomic status and abuse 3. Anger management problems 3. Corporal Punishment a. Both criminal and civil law have traditionally found reasonable corporal punishment of children justified and thus not abusive.
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b. MO has given public schools the choice whether to use corporal punishment or not (the school must lay out its chosen policy in writing) [US public schools may use reasonable corporal punishment – 8th amend. does not apply to public schools and a notice and hearing are not required] * Remember: public schools are more limited than private schools; private schools stand in loco parentis over kids c. Sweden outlawed parental corporal punishment in 1979. d. Children have occasionally been successful in using domestic violence statutes to secure a crt. order of protection against an abusive parent. e. Many parents justify abuse by saying it’s necessary and appropriate discipline f. A parent’s right to discipline their child is a privilege that has been codified in most states. In MO and most other states, the standard allows “reasonable discipline.” 1. Restatement (Second) of Torts provides a parent is “privileged to apply such reasonable confinement upon his child as he reasonably believes is necessary for its proper control, training, or education.” 2. Restatement factors in determining reasonableness of punishment: i. Whether actor is a parent ii. Child’s age, sex, and physical/mental condition iii. The nature of the offense and apparent motive iv. Influence of example on other children v. Whether force/confinement is reasonably necessary and appropriate to compel obedience to a proper command vi. Whether the punishment is disproportionate to the offense 3. Some jurisdictions find abusive discipline on proof of substantial risk of serious injury w/o having to show any injury already occurred. 4. Other jurisdictions must show “serious physical harm or traumatic abuse” 5. IN re C. children i. Mother was disciplining kids by use of a belt and kid had belt marks on his face – mother intended to continue this form of discipline (no room for compromise) ii. Remedy = remove kid into foster care iii. Factors to consider:
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1. whether incident is likely to occur again 2. whether abuse has been found 3. likely to cause serious/permanent harm 4. pattern of conduct by parent 5. mental stability of parent (can you trust them) 6. Ravoin v. ND Dept. of Human Services i. Parents were spanking children on buttocks w/ plastic spoon or leather belt ii. Crt. found no abuse (statute = someone who is suffering from serious physical harm) 4. Sexual Abuse a. Elements 1. Sexual activities involving children; AND 2. An “abusive condition” such as coercion or a large age gap b/w participants, indicating a lack of consensuality. b. Failure to protect 1. Parents are responsible for protecting their children from harm when they are able to do so. 2. A parent who fails to intervene to protect a child (or who takes insufficient action) can be adjudicated neglectful, even though the parent was not the actual abuser of the child. (And can have the child removed from their care or perhaps have parental rights terminated when the abuse is severe). 3. This is a type of neglect but usually arises in abuse cases. 4. In re T.G. i. Crt. upheld termination of parental rights of the mother who did not physically or sexually abuse her daughters, but allowed them to travel with a known sexual abuser and she knew the stepfather was convicted of child molestation and was abusing the daughters but still chose to live with him and expose the girls to him. She even tried to stop the girls from telling authorities. ii. Crt. said leave husband or leave children (she chose husband/stepfather) iii. Crts authority to do this comes from right to protect children’s safety iv. Civil case’s purpose is not to punish parent but to protect best interests of children.
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v. Took 4 years to terminate parental rights here b/c father voluntarily relinquished his rights and mother who wasn’t abuser was only parent left and children were bonded to her – if children had been removed to foster care, rights would have been terminated sooner. c. Proving the case 1. Child sexual abuse is difficult to prove b/c lack of physical evidence and of adult witnesses. 2. Symptoms of sexually abused children: i. Age inappropriate knowledge or sexual behavior ii. Enuresis in toilet trained child iii. Regressive behavior and w/draw iv. Severe temper tantrums or depression inappropriate for a child of like age 3. Problems proving sex cases: i. Usually, only witness is victim and abuser ii. Kids don’t make good interviewees or testifiers (don’t know what to believe) iii. Burden of proof is high (beyond reasonable doubt) iv. Lack of physical evidence v. False accusations (by kids or adults) 4. Child witness protection statutes: i. MO applies to both criminal and civil proceedings (Threshold – if testifying in open crt. would be too hard for child, can use closed circuit t.v. system so D lawyers can still cross-examine but child is not in same room as perpatrator) [Motion to invoke substitute proceedings] ii. Must show child is nervous b/c of being in same room as offender iii. MO any kid victim is competent to testify iv. Some states only allow this in criminal cases v. Jurisdictions have amended their evidence rules (made an exception) to facilitate use of child’s out-of-crt. statements (otherwise = hearsay issue) vi. Other way to get evidence in = sufficient corroboration (need only very little – due process 6th amend.) 5. In re Nicole V.
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i. Statute = unsworn out-of-crt. statements of child victim, if corroborated, will support an abuse or neglect finding ii. Crt. held that corroboration may include any other evidence tending to support the statements’ reliability, such as: proof that the parent abused another child Injuries were abusive type Parent abuses drugs/alcohol to severity Hospital/agency reports suggesting abuse Evidence of parent’s emotional health Admissions by parent even if recanted Evidence child was afflicted w/ STD or became pregnant d. NOTES: Most sexual abusers of children are known to the victim before the attack Sexual abusers are more likely to be men than women Boy victims may be less likely to report b/c shame Evidentiary difficulties may lead the crt. in a civil protective proceeding to base its decision on other grounds (such as parental unfitness) Civil cases proof is easier b/c focus is on child and no Confrontation right in civil proceedings There are often parallel civil & criminal proceedings E. Remedies 1. Must use “least restrictive alternative” consistent with all the interests involved (child, parents & state) = protect child; change behavior of parent and no more (Least restrictive most restrictive) a. Home custody/supervision Used most often W/ or w/o conditions b. Foster care 90% parent applicants accepted May be kinship or 3rd party Shortage of 3rd party Some states do NOT fund kinship care Problems w/ Kinship care: Easy access for abusive parent Intergenerational abuse Child limit = 6 23
Temporary Non-secure c. Institutionalization of child Secure = can’t leave w/o permission OR non-secure (day-treatment) Mandate = deinstitutionalization for non-status offenders Some children might needs some of these treatment centers for physical/emotional reasons Overall institutionalization is not good for children d. Physical/mental exam of child e. Termination of Parental rights (TPR) Permanent Grounds for TPR: Course of conduct in parental record Sexual abuse See more below 2. NOTES Judge can require parent to provide day care for monitoring purposes Some crts. make mother/father chose b/w abusive significant other and kids (may take away parental rights not a constitutional violation) Not a violations of freedom of assoc OR fundamental right to marriage, etc. F. Duty to Investigate 1. Deshaney v. DSS a. Issue = (14th due process) P claims deprived of liberty b/c DSS failed to intervene to protect him against risk of violence by his father b. Sup. Crt. held due process does NOT impose an affirmative obligation on states to protect persons, including children, from harm. c. Social service agency can NOT be sued if child was injured by private actors (can only be sued if child was injured by state actor) d. Majority Policy considerations: 1. child welfare authorities would err on side of removal 2. financially destroy the system e. MO mere failure to follow up hotline call does not warrant remedy f. After this case children harmed by state failures only have limited remedies G. The Prosecutor’s Role 24
1. A prosecutor may take on different roles, depending on statutory mandate (may represent state itself or state agency) 2. System works best if there is free-flowing exchange b/w prosecutor and other state entities 3. Diva P. v. Kaufman a. Held that legislature made the DSS the state’s representative b. The county prosecutor thus, did not have authority to litigate A & N independently of DSS H. The Reasonable Efforts Requirement 1. = Agency must make reasonable efforts to unify family or keep family together 2. If abuse is too severe no efforts may be reasonable 3. This is required by states b/c parents have a substantive due process right and w/o this requirement there are const. problems 4. In re N.M.W. a. Crt. found that chronic unsanitary conditions of apt. were sufficient basis for a neglect adjudication b/c health hazards and crt. permitted agency to remove child as preventive measure. b. State was not required to provide a cleaning service which would have cost < foster care. (Dissent argued: If brought in housekeeper would have been “reasonable efforts”) c. Murphy case state did have to bring in housekeep instead of TPR 5. 1980 Adoption Assistance & Child Welfare Act (AACWA) a. required states to implement procedures to keep family together b. strenuous efforts required before children can be removed & parental rights terminated c. Congress decided children are best off at home d. (Very controversial) 6. Adoption and Safe Families Act of 1997 (ASFA)? a. Reasonable efforts aren’t required under certain sets of expectations, such as when the parent subjects the kid to aggravated circumstances in the home, or commits a heinous crime against another child in the home. 7. MO lays out reasonable efforts requirements but what these are vary from case to case I. Termination of Parental Rights = natural parent-child relationship is completely severed A.k.a “death sentence of A & N law” Custody is usually transferred to DSS agency or new adoptive parent (Goal = free child for permanent placement) Natural parents no longer have const. rights (Foster/Adoptive parents get const. rights) 25
Grounds for Termination: Parents have failed to take corrective actions Parental absence/abandonment (token efforts aren’t enough) [may include parent’s long term incarceration] 3 Ways to show abandonment in TPR cases: 1) leave child w/ no intent to retrieve and no ID 2) Desert family and not come back 3) Willful failure to pay child support Ayers case Facts: mother beaten bad by dad; leaves kid w/ friend; gone for 8 years; sends $ and tries to see her; no intent to abandon Holding: Crt. found no abandonment b/c no intent Abuse of a sibling Parent’s mental incapacity (not typically a per se basis for termination but does not justify a lesser level of care by the parent – focus is on parent’s ability to care not the disability) Murder by the parent (even aiding and abetting, etc) TPR = bifurcated proceedings (w/ child’s interests only being considered in dispositional phase) 1. Consensual Termination vs. Voluntary a. Consensual 1. = parent agrees to terminate parental rights 2. * only operative if crt. finds its in “best interest of child” 3. Emancipation denied if child cannot fend for theirself 4. Sometimes used for step-parents to take over b. Voluntary 1 of 2 events must occur: 1. One serious event (ex: rape, death, etc.) 2. Course of persistent A & N (pattern) 2. Due Process Protections for Parents a. Lassiter v. DSS 1. Crt. held due process does not required apportionment of counsel for indigent parents in all termination proceedings but rather permits the trial crt. to determine the need on a case by case basis. 2. MO already had a statute that required right to counsel for indigent parents and in ad gaurdium cases b. Santosky v. Kramer
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1. Held due process permits a state to terminate parental rights only where a ground for termination is established by at least a clear and convincing evid. standard of proof [75%] (higher than ordinary civil preponderance of the evid. standard [50.1%]). 2. MAJ making it more difficult to terminate parental rights 3. W/ just preponderance standard too much risk of erroneous deprivation (society not willing to tolerate) c. M.L.B. v. S.L.J. 1. Crt. held due process and EPC ensure a right to appeal TPR case even though indigent parent could not pay court fees. 3. When Should Parental Rights be Terminated? a. Champagne v. Welfare Division 1. 2 phases to TPR: i. adjudication (who did what to whom) ii. disposition 2. Have to show termination is in best interests of child plus a ground (ex: single event/act) 3. State interest becomes compelling when situation for child becomes hazardous 4. MO state has to show reasonable efforts to reunify family 1st 5. Murphy case (see above) b. In re Jeffrey R.L 1. Parents may also be found neglectful, and may even suffer TPR if fail to cooperate w/ state in abuse investigation which leaves perpetrator unidentified and child at risk of future harm c. In re Adoption of B.O. J. Social Class, Ethnic and Racial Bias 1. Overview a. There is disproportionate confinement (poor/minority families are over represented in A & N families) 2. Understanding Cultural Context a. Japanese lady drowning child b/c family shame b. Leaving kid outside restaurant in NY city
III.
Foster Care A. Intro & Foster Care Placement Structure 1. Intended to be temporary (either return to parents or adopt) 2. Includes placement in: a. Private homes licensed & supervised by state 1. Minimal stipend 2. Limit on # of children
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b. Group homes c. Institutions d. Kinship care 1. Fed. statutes encourage this (requires states to give preference to it) 2. Some states fund completely, some partially, some not at all 3. May have less oversight 3. State usually has custody but parents retain right to make significant decisions (e.g. medical or adoption) 4. Foster relationship is regulated by: a. State law b. Agency rules c. K 5. Temporary review statutes (MO review every 6 months in juvenile crt. proceeding) B. The Court’s Role in Permanency Planning 1. Adoption and Safe Families Act (ASFA) imposes time limits on the states to expedite permanent placement decision-making. a. W/in 12 mths of when child entered foster care, crt. must hold a permanency hearing to determine the placement plan for the child (family reunification or adoption) b. The child is considered to have entered foster care on the earlier date of: 1. 1st judicial finding of A or N; or 2. Date 60 days after child was removed c. Allows state to us “concurrent planning” (plan to reunify and plan to adopt at same time in case one falls through) d. Requires states to initiate TPR proceedings for a child who has been in foster care for 15 of the last 22 mths (w/ some exceptions – ex: state may not TPR when kinship care) 2. Crt. is suppose to take an active enforcement role: a. State making reasonable efforts to reunify? b. Foster family abiding by state requirements? 3. Criticisms of Fed. permanency planning model: a. It exaggerates the harms caused by foster care b. Successful reunification often requires long-term services c. TPR may harm children by depriving them of contact w/ their parents and many are never adopted d. Disproportionate racial composition C. The Child’s Right to a “Family” 1. Smith v. OFFER a. Alleged that procedures governing removal of children from foster homes violated due process and equal protection [Foster parents (Ps) claim they have a const.
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right to family preservation after having the child for < 1 year) b. Parents wanted a pre-removal hearing instead of a post one c. Crt. held foster family could not be dismissed “as a mere collection of unrelated individuals” and that it did not have to decide this question based on due process clause foster parents do not have aright to a hearing before the removal 2. Procopio v. Johnson a. Generally the state’s contractual promises are not sufficiently explicit or binding to establish a liberty interest, even when foster parents have cared for a child for a number of years and expected to adopt the child. (foster parents have no liberty interest) D. The Child’s Right to Services and Protection from Harm 1. Suter v. Artist M. a. Issue = do private individuals have the right to enforce by suit, a provision of the adoption act (AACWA)? b. Held = NO, 42 USC does not confer an enforceable right on its beneficiaries nor an implied cause of action on their behalf (Private parties cannot sue agency for failure to make reasonable efforts, etc.) 2. Private parties may sue if state violates CAPTA (which requires states to swiftly investigate A & N calls) 3. Marisol v. Giuliani a. The 14th amend. does not require state to provide foster children w/ an optimal level of care or treatment. b. To violate a foster child’s substantive const. rights, the conditions and duration of foster care must be so inadequate as to violate the foster child’s right to be free from harm (incl. Right top be w/ family) 4. LaShawn v. Kelly a. A crt. order in response to a claim of const. violation is one that may be enforced by a threat of contempt. E. Liability for Harm 1. Kara B. v. Dane Co. a. Ps seeking damages not systematic change b. Nobody was fighting over private rights of action b/c here raising a common law negligence claim not using statute c. Crt. looked at 3 major cases: 1. Estella v. Gamble i. Minimal level of protection while in state custody in prison 2. Romeo i. Patients in state custody have due process rights
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3. Deshany i. State does not have a due process obligation to protect kids not in state care (maybe a different answer if kid IS in state care/custody) d. D officials claimed § 1983 qualified immunity = shields public officials from civil liability unless their conduct violates a person’s clearly established constitutional or statutory right. (Crt. rejected this argument crt. found a clearly estb. Cont. right to a safe and secure foster placement and held that a reasonable public official would have been put on notice that violation of the right could lead to liability). 2. Standard of care = professional judgment would a competent professional know there was a problem (objective test) [Liability would be imposed only when the professional’s decision is such substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such judgment] 3. Crt. rejected the deliberate indifference standard know kids were in danger and say “I don’t care”(subjective test) F. Foster Parent Liability 1. A parent is NOT liable for a tort his kid committed absent statutory provisions (most states have imposed such liability w/ a $ limit) 2. There is generally no foster parent liability. 3. Only a few crts have imposed a gross negligence standard on foster parents, via the parent tort liability statutes. 4. Most crts hold that state is NOT responsible for harm caused by foster parents b/c no agency, respondeat superior, or vicarious liability arises from state-foster parent relationship. G. Indian and Child Welfare Act (ICWA) 1. Order of placement for adoption: In the absence of good cause to the contrary: a. W/ member of child’s extended Indian family b. Other members of child’s tribe c. Other Indian families 2. Order of placement for foster care: a. A member of child’s extended family b. Foster home licensed, approved or specified by child’s tribe c. An Indian foster home licensed or approved by reg. Auth. d. Institution approved by tribe or operated by Indian org. H. Racial and Religious Matching 1. 1996 Statute can’t deny a placement solely based on race but it may be considered under child’s best interests (requiring samerace placement violates the const.)
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2. Most states consider parents’ religious preferences in making foster placements but not required (the free exercise rights of parent’s are observed as long as state makes reasonable efforts) I. Institutional care 1. Today children are not placed in institutions for A & N unless there’s a good reason for it (Ex: group homes, hospitals, etc) 2. Tend to be preserved for special need children J. Guardianship 1. Not funded 2. ASFA permits this as part of the “permanency plan” 3. Guardians do not have to submit to state rules 4. Like “substitute parents” b/c have complete control 5. Guardians assume legal and physical custody 6. Used as an alternative to adoption when a child has special needs to the parental ties need to be kept for some reason.
7. Criminal Abuse and Neglect K. Abuse, Neglect and Child Endangerment 1. Intro a. Focus is on guilt/innocence of D (accused abuser) b. Cultural defense may arise c. Mere possession of drugs is not endangerment but possession + more is endangerment (ex: taking drugs while w/ child = possession + more endangerment) d. Factors to consider when determining whether to prosecute: 1. Degree of harm to child (severity of injuries) 2. Number of occurrences (is it a pattern of conduct) 3. Whether parents will cooperate 4. Strength of the proof 5. Community outrage 6. Remedy’s likely effect on family 7. Age and understanding of child e. 2 Types of Statutes: 1. General criminal statutes (ex: murder, assault, etc.) 2. Statutes specifically relating to only child victims (ex: endangering the welfare of a child, etc) f. Remedial statutes are liberally construed g. Some endagerment statutes reach non parents (MO) h. Some endangerment statutes have various degrees (1st, 2nd) 2. Void for Vagueness Doctrine a. Endangerment statutes then to be very broad to enable authorities to prosecute a wide range of child mistreatment. b. Due process requires that a penal statute “define the criminal offense w/ sufficient definiteness so that ordinary people can understand what conduct is prohibited and in a
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manner that does not encourage arbitrary or discriminatory enforcement. c. If they are trying to fit conduct under a broad statute can use this const. challenge (usually these challenges fail) 3. Parental Liability Statutes a. = effort of legislatures to punish parents for the criminal misconduct of their children b. policy = deal w/ parents who neglect their kids c. All states have civil liability statutes w/ a cap on the liability d. Usually charge parents w/ neglect but may charge them with endangerment or contributing to delinquency statutes. e. Even in the absence of parental liability legislation, parents can be prosecuted arising from their children’s criminal conduct if the parents are accomplices, co-conspirators, or if they knowingly profit from the crime. L. Sexual Abuse 1. Statutory Rape (vs. Forcible rape) a. Does not include force as an element b. Key element = victim’s age c. Victim is deemed incapable of consenting as a matter of law d. Court’s have rejected perpetrators’ challenges to statutory rape statutes grounded in constitutional privacy rights (Ferris v. Santa Clara County) e. Prosecution can also occur now when perpetrator and victim are same age (can be charged w/ raping each other) f. Strict liability offense g. MO child protection statutes apply in criminal & civil sex cases h. A person convicted of statutory rape may have parental right terminated (and if teacher school board may be sued for negligence) 2. Gender Neutrality a. Gender neutrality laws now so men can rape men b. Older women can rape younger boys (victim can be male) 3. Mistake of Age a. Regardless of the victim’s appearance, sexual sophistication, verbal misrepresentations or D’s efforts to learn the victim’s age mistake of age is no defense (in almost all states) b. In some states it is a defense if it’s a reasonable mistake Marriage c. Marriage is a defense to statutory rape and other nonforceable sex crimes d. But marriage is NOT a defense to rape
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e. Child Pornography 4. NY v. Ferber a. Child porn = depictions of sexual activity involving children (not just mere nudity) b. Production and dissemination of child porn is a form of sex abuse. c. Held that child porn, like obscenity, is unprotected by the 1st amend. d. 1st amend. does protect depictions of adults engaged in sexual activity (unless obscene) e. Granted states right to regulate child porn b/c of its effect on child performers f. Doesn’t cover virtual porn of nonexistent performers
IV.
Regulation of Children’s Conduct 2.
3.
4. 5.
a. Child Labor Laws Intro a. Regulate children in way Congress could never regulate adults b. 1st sustained nationwide regulation on children c. Age discrimination claims based on the EPC most often fail b/c age discrimination is not a suspect class and state only has to satisfy the rational basis test (scrutiny) d. Some CLL expressly exempt minors who are married or emancipated Sources of Regulation a. Parens patriae doctrine allowing states to protect kids b. 3 levels of regulation: 1. Federal level (Fair Labor & Standards Act [FLSA] w/ administrative rules and regulations) 2. State regulations 3. Municipalities (local regulations) * If there is any inconsistency apply the strictest rules (no federal pre-emption) c. US v. Darby 1. Sup. Crt. unanimously upheld FLSA d. Prince v. Mass. e. Sup. Crt. upheld general state authority to enact child labor laws under state police power Hazardous Occupation a. State law typically prohibits employment of children under 18 in “hazardous occupations” “Work” a. Acts typically exempt agricultural work, work for parents, or work in family-owned/operated business. b. Performance as a child actor/model may also be exempt
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c. Some state child labor laws state whether children may perform as “volunteers” d. Can’t beat CLL’s by having a child work and then not pay them 6. Hours and Working Conditions a. CLL’s regulate the max # of hours children can work and how late on school nights during school term b. Several CLL’s also regulate the children’s working conditions c. CLL’s also typically authorize a state agency to conduct periodic inspections of places where children are employed 7. Work Permits a. Most CLL’s require children to secure work permits or certificates, usually from school official. b. The applicant must present proof of age and description of the prospective employment. c. The child’s parent or guardian must also provide written consent. d. FLSA does not require these only requires employer prove child is employed in accordance w/ the act 8. Criminal & Civil Penalties a. CLL’s impose these on employers and sometimes parents b. Virtually no CLL’s impose criminal punishment on kids 9. In Henderson v. Bear a. Worker’s comp acts may provide only meager recovery for death or serious injury suffered by unlawfully employed children b. Alcohol Regulation 10. Intro a. Historically children could drink b. Became a problem after Revolutionary War 11. Minimum Drinking Age a. In 1970’s many states lowered the drinking age to below 21 b. In 1980’s Congress enacted the National Minimum Drinking Age Act which sought to encourage a uniformity by w/holding %’s of fed. hwy. $ from any sate “in which the purchase or public possession . . . of any alcoholic beverage by a person less than 21 is lawful” (SD v. Dole) 1. Crt. upheld this as a proper exercise of Congress’s spending power 12. Exemptions a. Many state alcohol control laws do exempt parents who provide alcohol to their underage children 1. Parent may face civil liability if child causes injury to himself or others b. Clergy are exempted if part of religious ceremony
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c. Physicians are exempt if prescription 13. “Zero Tolerance” Laws a. 1995 Congress enacted “zero tolerance” statute b. Encouraged states to enact and enforce legislation that “considers an individual under 21 who has a blood alcohol concentration of 0.02 % or > while operating a motor vehicle” to be driving while intoxicated or under the influence.” (~ 1 glass of beer or wine) c. Has survive EPC challenges b/c it’s rationally related to a legit state purpose of reducing # of teenage drinking fatalities and protecting general public. 14. Host Liability a. Persons who provide or serve alcohol to underage drinkers may face tort liability b. > 35 states have “dram shop” or social host acts in which providers are strictly liable for death or injury caused by an underage or visibly intoxicated drinker. 1. In some states commercial provider must have known or should have known consumer was underage or intoxicated at time 2. Some states prohibit “dram shop” and social host acts entirely c. Tobacco Regulation 15. As many as 90% of adults who smoke started as minors (If you don’t smoke by 18 you probably never will) 16. Until 1992 MO was one of the only states that didn’t have a sale of tobacco to minors statute, b/c of the strong tobacco lobby 17. In 1992 Congress required states to enact legislation restricting the sale and distribution of tobacco products to minors as a condition of receiving federal substance abuse prevention and treatment block grants. 18. Enforcement doesn’t work very well (ex: vending machines) 19. National Tobacco Settlement (Nov. 1998) a. Driving Privileges 20. 3-6 am = high time for abuse 21. All states establish a minimum age at which persons may secure licenses to drive various types of vehicles 22. Car usually b/w 15-17 23. In the absence of a statute, the mere existence of a parent-child relationship does not make a parent liable for the child’s negligent operation of a motor vehicle, even if the parent owns it 24. Some states apply the “family purpose doctrine” = where a motor vehicle owner maintains the vehicle for the family’s pleasure use, the doctrine imposes liability on the owner for damages arising from negligent operation by any family member who uses it w/ the owner’s express consent (including the children).
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25. Many state’s have enacted “abuse and lose” laws penalize kids for certain driving conduct a. Juvenile Curfews 26. Crts have upheld a variety of local curfew like ordinances designed to regulate children’s public activities. 27. Hutchins v. D.C. a. Crt. upheld District’s general juvenile curfew ordinance b. Curfew laws are measured by intermediate scrutiny (A curfew must be substantially related to an important governmental interest) 28. In the absence of an emergency, states may not constitutionally impose a general curfew on adults. a. Status Offenses 29. Nature of Status-Offense Jurisdiction a. = conduct sanctionable only where the person committing it is a juvenile b. 3 Status Offenses: 1. Ungovernability i. = crt. may find child ungovernable/incorrigible if the child habitually refuses to obey the parents’ reasonable commands and thus is beyond their control. 2. Truancy i. = habitual absence from school of a youth subject to the compulsory school act. 3. Runaways i. A crt may “bootstrap” a runaway into delinquency proceedings by slapping a contempt charge on the runaway who won’t obey the crt order to stay at home c. Overlaps w/ delinquency statutes so state may bring a status offense charge for same acts that would support delinquency proceedings but would be responsible for meeting a lower standard of proof. 30. Deinstitutionalization Mandate a. = children who are not criminal wrongdoers (status offenders and A&N children) may NOT be held in secure detention. b. Exception: permit secure placement of accused status offenders for a max of 24 hours, excluding weekends/holidays, to permit identification, investigation, release to parents, or transfer to a non-secure facility or to a court. A second 24 hour period may follow an initial court contact. c. Get around it by:
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1. charge kid w/ petty crime 2. runaways 1974 Juvenile Justice and Delinquency Prevention Act = intended to prevent incarceration of kids for status offenses To get fed $ must meet 4 mandates: i. First 3 deal w/ delinquency ii. Deinstitutionalization mandate
V.
Delinquency a. Introduction 2. Juvenile crime in America reached its peak in 1994 and has been declining since. 3. MO delinquency age = 17 4. Most juvenile offenders are males 15 –24 yrs old 5. A small % of juveniles commit a large % of the crime. 6. Homicides committed by juveniles occur in narrow geographic regions 7. 1967 Crt. said sending kid to reform school = taking child’s liberty interests away. 8. Historical objectives: a. Individualized rehab and treatment b. Informal procedure c. Confidentiality d. Separate incarceration 9. Modern objectives: a. Accountability b. Enable juvenile to become capable, productive, and responsible citizen c. Ensure the safety of public 10. Delinquency cases purpose = to rehabilitate child not to stigmatize 11. Civil proceeding 12. Today what child did does count (did not use to matter) a. Juvenile Court as an Institution 13. Right now they are confidential but there’s legislation to try and open up juve. Crts. a. Contours of Delinquency 14. Infancy Defense a. Common law presumed that children under 7 were w/o criminal capacity and created a rebuttable presumption of criminal incapacity for children b/w 7-14. (over 14 = presumptively capable) b. Prosecutor can rebut the presumption by demonstrating that the child knew what he/she was doing when committing the act and knew the act was wrong. c. Factors crts weigh to determine whether juvenile knew wrongfulness of the act: 37
1. 2. 3. 4. 5. 6. 7.
nature of the crime child’s age and maturity whether the child showed a desire for secrecy whether child wanted victim to tell prior conduct similar to that charged consequences attached to the conduct acknowledgment that the behavior was wrong and could lead to detention d. Some states w/hold the defense on the grounds that delinquency proceedings are rehabilitative rather than punitive. e. Other states recognize the infancy defense in delinquency proceedings on the grounds that confinement or other sanction is inherently punitive and that a juvenile should not suffer a delinquency sanction w/o proof crime was committed. 15. Insanity Defense a. M’Naghten test = an accused is insane and not criminally responsible if when committing the act charged or omission: 1. he was suffering from such a mental disability that he did not know and could not distinguish right from wrong OR 2. he was suffering from such a disability of reason or disease of the mind that he did not understand the nature or consequences of the act or omission. b. Where the criminal code and rules are silent crts disagree about whether the defense is available in juvenile court as an essential element of due process (Chatman) 16. Transfer a. All states have transfer (or “waiver”) statutes that regulate when a juvenile should be tried in an adult court b. MO children over 12 can be transferred to adult crt. except for 7 (“deadly sins”) most serious felonies no minimum age c. 2 Types of Transfer Statutes: 1. Automatic 2. Discretionary (MO) i. Crt. generally may order this only where its propriety is established by the ordinary civil “preponderance of the evidence” standard ii. Few states impose the higher “clear and convincing evidence” standard iii. Most states impose burden on prosecutor to show need for transfer
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iv. Few States require older juveniles to demonstrate transfer should be denied d. Factors prosecutor may consider in deciding to transfer: 1. Nature & seriousness of the crime 2. Maturity of the juvenile 3. Sophistication of juvenile 4. Prior record 5. Amenability to treatment and rehab 6. Public need for protection 7. (MO) Racial disparity e. Kent v. US 1. Crt held that a juvenile may not be transferred to criminal court pursuant to a discretionary transfer statute “W/o hearing, w/o effective assistance of counsel, or w/o a statement of reasons” for the transfer. f. Recidivism rate is higher in adult transfer cases g. Transferee’s can be jailed w/ adults (Federal Deinstitutionalization mandate doesn’t apply) h. Extended jurisdiction juvenile prosecutions (EJJ) = authorizes the juvenile court to retain jurisdiction and impose both a juvenile and an adult sanction on older juveniles. i. Delinquency Procedure 17. Overview a. Read Miranda rights (before any questioning) b. Immediately turned over to juvenile officer c. Juvenile jurisdiction attaches d. Must be brought before juvenile court w/in 24 hours 18. Arrest and Custody a. Arraignment b. Fingerprints, photographs, Lineups 1. State law varies (some do not permit these unless crt approves) but most allow it w/o crts consent if the charge is a serious charge 2. Lineups most states can’t do this w/o a crt order but that is changing too. 19. Search and Seizure (mostly in public schools) a. See T.L.O., Earls, Acton b. Reasonable S & S if done pursuant to a warrant or to an exception c. T.L.O.: 2-Part Test = reasonableness 1. search was “justified at inception” (= reasonable grounds for suspecting the search will turn up evidence that the student has violated or is violating either the law or the school rules)
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AND 2. search was “reasonably related in scope to the circumstances which justified the interference in the first place” d. Obligation of school to protect student body [Public school students are a captive audience (have to be there – parents compulsory school attendance statutes)] e. If police officer searches than the standard raises to probable cause (Acton & TLO protection of children) f. Safe Schools Act – requires results of a search to be turned over to the police g. In considering reasonableness – need to consider degree of the intrusion (Least intrusive to most) 1. Locker searches – these cases don’t go far b/c lockers are school property 2. Metal detector searches – part of American life and hand wands can be used if suspicion (cases don’t go far) 3. Sniff searches – occur 4. Strip searches – schools often lose these cases (normally not upheld); must be same gender and looking for serious contraband i. Some states outlaw these entirely h. Exclusionary rule – if search violates 4th amend. then can’t use the evidence (This does not apply in school disciplinary proceedings b/c not a criminal proceeding) 1. Question is whether it applies in delinquency proceedings? (Abrams probably won’t apply) i. Judicial deference to school authorities 20. Interrogation and Confession a. Before questioning, suspect must be made aware of Miranda warning b. Gault held that the privilege against self-incrimination and the right to counsel apply as essentials of due process, in delinquency proceedings. c. Fare v. Michael 1. Crt. assumed w/o deciding that Miranda principles are “fully applicable” in these proceedings, held that the juvenile’s request for his probation officer was not a per se invocation of the right to remain silent b/c a probation officer’s role is fundamentally different from an attorney. (Issue: Did he waive his right by asking for an “attorney”? NO, probation officer does NOT = attorney)
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2. Use this test to determine if child waived his Miranda rights must look at totality of the circumstances 3. Held: The totality of the circumstances approach is “adequate” to determine whether a juvenile has knowingly and intelligently waived the privilege against self-compulsory incrimination and the right to counsel. 4. The juvenile court must evaluate all circumstances surrounding the interrogation, including the alleged delinquent’s age, experience, education, background, and intelligence. d. Miranda rights only apply in delinquency and criminal cases (NOT status offenses) e. Judicial discretion – easy for judge to take Fare standard and morph it to find waiver f. Only police have to read Miranda warnings (not school officials) g. If child is not arrested but is held for a long time it brings up the issue of whether the child was free to go or not (arrested?) and hence, whether Miranda warning should have been read? h. Terry stop = stop and frisk if police reasonably believes there’s immediate danger (brief frisk) 21. Intake and Diversion a. Intake dept. (of prosecutor’s office) makes a decision whether or not to proceed further or whether to divert the case out of the system (most are diverted out) b. For a case to be diverted out there must be an admission of liability. c. Diversion = agreement b/w state, parents, etc. that there will be some informal crt proceeding; diversion into social agency or probation dept. (usually a written agreement) d. Intake basically = a negotiation e. Most cases are diverted at intake (~ 60%) f. Recently = greater prosecutor role g. Disparity b/w # of whites and # of minorities h. Diversion = way to help juveniles w/o throwing them into crt.; and also way for crts to keep hold of juveniles whom they could not prove an offense against 22. Preventive Detention a. Found to have a “substantial impact” on delinquency dispositions b/c the very fact of detention fuels a perception that the detainee is dangerous to himself or the community and thus warrants more severe sanction. b. Shaw v. Martin
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1. 14 yr old picked up 2. Required to hold kid if possibility he would commit another crime before coming back in. (Determine who is a serious risk of future events) 3. Does this allow too much discretion? 4. Held that the NY statute satisfied due process. 5. Held that preventive detention of juveniles under the Act did not constitute punishment, but served a legitimate state objective of protecting the community and the juvenile from the hazards of pre-hearing crime AND that the pre-hearing procedures the Act afforded the detained juvenile amply protected against erroneous and unnecessary deprivations of liberty. 6. Based on parens patriae doctrine c. Today states authorize preventive detention where: 1. juvenile is a fugitive from another jurisdiction 2. juvenile would be a danger to himself or others if released 3. juvenile would be likely to flee the jurisdiction if released 4. juvenile has no parent or other adult to assume supervision 5. juvenile has been charged w/ a serious crime such as murder d. Must hold probable cause hearing w/in 3 days. e. Increased growth of preventive detention (20% of delinquents) 1. overcrowded facilities 23. Bail a. Sup. Crt. has never said whether 8th amend applies to juveniles b. Get out via preventive detention or probable cause hearing 24. Juvenile Justice and Delinquency Prevention Act of 1974 a. MO is in compliance b. 3 Mandates: 1. Deinstitutionalization of status offensers and nonoffenders 2. Sight and sound separation = juveniles may not have regular contact w/ adults who have been convicted of a crime or who are awaiting trial on criminal charges. i. States must assure that juvenile and adult inmates cannot see each other and that no conversation b/w them is possible.
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ii. Major aims are to prevent adult prisoners from committing assault on juveniles and to prevent juveniles from being infected w/ the criminal culture of adult prisons. 3. Jail and Lockup Removal – requires states to provide that juveniles charged w/ delinquency shall not be detained or confined in any institution in which they have contact w/ adult inmates. i. Exception: juvenile may be held in a lockup for only a short period (6 hours) ii. Juveniles charged in criminal crt w/ felony may be detained in a secure adult facility 4. Disproportionate confinement of minority youth – requires states to determine whether there is disproportion and if so to demonstrate that they have taken efforts to reduce it. 25. Adjudicatory Hearing (Trial) a. Not same as probable cause hearing (significantly lesser standard than beyond reasonable doubt) b. Juvenile proceedings are hybrids (civil w/ lots of criminal overtones) c. Usually bifurcated: 1. Liability 2. Disposition d. Confidentiality 1. Most states in the 1990’s enacted legislation that modified or removed traditional juvenile court confidentiality provisions to make delinquency proceedings more open. 2. Some states have even replaced closed delinquency proceedings, at least in cases involving older juveniles or juveniles charged w/ specified serious crimes, w/ a presumption of openness. 3. Juvenile codes in 47 states have provided for release of info. contained in juvenile crt. records to at least the prosecutor, schools, police, victim, social agencies or the public in general. e. Kent v. US 1. Sup. Crt. found that the juvenile court had deprived a teenager of a hearing, denied his counsel access to the social and probation reports and failed to enter a statement for reasons for waiver. f. In Re Gault 1. 14th amend due process clause applies in juvenile delinquency proceedings
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2. 14th amend incorporated some of the const. guarantees – incorporated if it is necessary to establish fundamental fairness 3. Established certain const. criminal rights and left it open for future decisions to establish more. 4. Tampered w/ idea that juvenile proceedings are indeed punitive 5. Fundamental fairness test due process 6. Due Process requires: i. The juvenile and his/her parents or guardian be given written notice, stating the charges w/ particularity at the earliest practical time and in any event, sufficiently in advance of the hearing to permit reasonable opportunity to prepare ii. That the juvenile and his/her parents be notified of the juvenile’s right to be represented by retained counsel, or that counsel would be appointed to represent the juvenile if they cannot afford counsel. iii. That the juvenile enjoy the 5th amen privilege against self-incrimination and the rights to confrontation and crossexamination 7. Sup. Crt. said parens patriae must exist in conjunction w/ due process 8. Narrow holding: Involves only delinquency cases; adjudicatory phase only; and only certain rights: i. 6th amend – right to confrontation & CE ii. 5th amend – right against self-incrimination iii. Right to cross-examine 9. 3 reasons why Gualt is impt. Today: i. Significant const. rights apply to delinquency cases ii. Revolutionized juvenile court practice generally (due process – things became more formal) iii. Founding head of children’s rights movement (applied const. to kids) 10. Gault guarantees lawyers for kids 11. Most states still allow juveniles to waive right to counsel (BUT some states do NOT allow waiver of counsel) g. Standard of Proof = beyond a reasonable doubt (fundamental fairness)
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1. In re Winship i. Crt. held that due process requires application of the criminal beyond a reasonable doubt standard in delinquency proceedings. h. Competency to participate in the proceeding = at the time of trial is the juvenile competent to stand trial (time of crime knew right from wrong = infancy defense) 1. Dusky v. US i. A criminal defendant may stand trial only if he “has sufficient present ability to consult w/ his lawyer w/ a reasonable degree of rational understanding – and . . . a rational as well as factual understanding of the proceedings against him.” 2. Some states have statutes or rules that define competency in delinquency proceedings. 3. Other states hold that due process requires application of the criminal law competency standard and prohibits adjudication of juveniles who fail to satisfy the standard. 4. Usually focus is on mental illness or retardation. 26. Jury Trial a. McKeiver v PA 1. Four yrs after Gault 2. Sup. Crt. held that due process does not require a jury trial in delinquency proceedings. 27. Speedy Trials a. In re Benjamin L. 1. b. More than half the state statutes/rules guarantee a speedy trial by imposing time standards for processing and determining petitions. 28. Double Jeopardy a. Breed v. Jones 1. Unanimously said that juvenile crt. has criminal overtones 2. Juvenile had already been convicted in criminal court and the Crt. held that jeopardy attached when the juvenile crt began hearing evidence and thus later criminal prosecution would violate the 5th amend. 3. In other words, the juvenile delinquency proceeding is treated as a criminal proceeding in terms of double jeopardy b. Swisher v. Brady
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1. Held that the state’s right to file objections did not violate the double jeopardy clause (b/c state had opportunity to convince 2 decision makers) BUT it’s considered 1 proceeding 2. Happens in MO 3. Commissioner acting as judge and issuing order 29. Disposition a. Crts. have broad discretion to determine sanctions it will impose on juvenile. b. Graduated Sanctions 1. As severity of sanctions increases, so must intensity of treatment. 2. At each level offenders must be aware that if they continue to violate the law, they will be subject to more severe sanctions. 3. least restrictive = probation 4. most restrictive = placement in secure facility c. Parental responsibility 1. # of states require parent’s to participate in disposition phase by: i. attending parental classes ii. contributing to restitution paid to the victim d. Victim’s Rights 1. All states now grant victim’s rights in delinquency process. 2. Ex: entitled to be hear (re: their loss) e. Aftercare 1. Supervision after juvenile is released from out-ofhome placement. 2. If juvenile fails to comply w/ aftercare conditions, they may be sanctioned further. (Report to juv. Off) f. Expungement or Sealing 1. Usually occurs when juvenile reaches age of majority g. Collateral use of Juvenile dispositions 1. Now states require the juvenile admit to prior “strikes” (prior juvenile adjudications) will count against them in later proceedings so now have collateral effect 2. Crts may consider earlier delinquency adjudications when determining pretrial release or sentencing or transferring h. Interagency sharing of Info 1. Confidentiality sometimes leads to “informational territorialism” by child welfare agencies
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2. Interstate compact = agreement b/w states and compact becomes law of state. i. If juvenile is adjudicated and on probabtion it allows the juvenile to move and have the 2nd state take over. Inovative Dispositions “Restorative justice” 1. Juvenile restitution (MO) 2. Community service (MO) 3. Juvenile victim-offender mediation Blended Sentences 1. Combination of adult criminal sentence and juvenile sentence 2. MO does it Bootcamps 1. Rejected by MO 2. Primarily for older male offenders 3. Popular in 1990’s 4. Other states still have them Right to treatment 1. Due process obligation of state to protect juveniles who are in delinquency confinement 2. Alexander v. Boyd i. Holding = due process minimum right to protection and care when juveniles are in delinquency confinement. 3. Prison litigation format 1995 i. Relief granted cannot be greater than what’s needed to remedy the wrong ii. D must concede they did something wrong and then that opens them up for civil damages 4. Federal enforcement i. 1990 Civil Rights Incarcerated Persons Act ii. 18 USC § 241 permits prosecution of persons who conspire to “injure, oppress, threaten, or intimidate” a person in the “free exercise or enjoyment’ of a fed. const. or statutory right. iii. 18 USC § 242 permits prosecution of person who, under color of law, willfully deprives any person of a fed. const. or statutory right. 5. Mental Health Facilities 6. Reform Efforts
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i. MO is leader among states that have taken decisive steps to reform juvenile correctional systems. ii. MO reserves secure confinement for violent offenders and chronic repeaters, and places other youth in the less restrictive programs. iii. MO stresses small decentralized facilities, regional management, and expansion of a full range of community based alternative placements. iv. Residential programs have units housing 10 or < kids and secure hold max of 70. v. Proctor homes = youths live w/ college kids vi. Keep kids close to home to keep parents involved. 7. Privatization – Jackson article i. Facilities for profit were keeping kids longer b/c making daily stipend off of them ii. Doesn’t work well iii. Possible privatization of foster care 30. Appeal a. Rather infrequent b. Problem in MO b/c trial judges don’t publish opinions 31. Fed. Delinquency Provision Act (FDPA) 1938 a. Dist. judge sits as juvenile judge b. Provides that if fed. crime is committed it will go to state court unless AG decides otherwise c. Juvenile Court’s Future 32. Won’t be abolished
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