Law Commons^™

The Americans With Disabilities Act: Legal And Practical Applications In Child Protection Proceedings, Joshua B. Kay

Articles

Parents with disabilities, particularly those with intellectual disability and/or mental illness, are disproportionately represented in the child protection system.1 Once involved in the system, they are far more likely than parents without disabilities to have their children removed and their parental rights terminated. The reasons for this are many. Parents with disabilities are relatively likely to experience other challenges that are themselves risk factors for child protection involvement. In addition, child protection agencies, attorneys, courts, and related professionals often lack knowledge and harbor biases about parents with disabilities, increasing the likelihood of more intrusive involvement in the family. Yet research …

My Name Is Not 'Respondent Mother': The Need For Procedural Justice In Child Welfare Cases, Vivek S. Sankaran

Articles

You are a parent whose children are in foster care. Your court hearing is today, after which you hope your children will return home. Upon leaving the bus, you wait in line to enter the court. At the metal detectors you’re told you can’t bring your cell phone inside. With no storage options, you hide your phone in the bushes, hoping it will be there when you return.

Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran

Articles

In New York City, an indigent parent can receive the assistance of a multidisciplinary legal team—an attorney, a social worker, and a parent advocate—to defend against the City’s request to temporarily remove a child from her care. But in Mississippi, that same parent can have her rights to her child permanently terminated without ever receiving the assistance of a single lawyer. In Washington State, the Legislature has ensured that parents ensnared in child abuse and neglect proceedings will receive the help of a well-trained and well-compensated attorney with a reasonable caseload. Yet in Tennessee, its Supreme Court has held that …

Timely Permanency Or Unnecessary Removal?: Tips For Advocates For Children Who Spend Less Than 30 Days In Foster Care, Christopher Church, Monique Mitchell, Vivek Sankaran

Articles

Removal and placement in foster care is child welfare’s most severe intervention, contemplated as “a last resort rather than the first.” Federal law, with an overarching goal of preventing unnecessary removals, bolsters this principle by requiring juvenile and family courts to carefully oversee the removal of children to foster care. Expansive research reminds the field that removal, while often necessary, is not a benign intervention. Physically, legally, and emotionally separating children from their parent(s) can traumatize children in lasting ways. Yet review of federal data concerning children in foster care reveal a troubling narrative: each year, tens of thousands of …

Think Of The Children: Using Iied To Reformulate Disturbing Speech Restrictions, Richard Lorren Jolly

University of Michigan Journal of Law Reform

The Colorado State Court of Appeals recently upheld an injunction restricting public displays of aborted fetuses. The court held that the restriction passed strict scrutiny because the state had a compelling interest in protecting children from the psychological harm of “disturbing images” and the injunction was narrowly tailored. This marked the first time an injunction had been upheld on this rationale. This Note critiques that holding and others. It contends that while some federal and state courts have recognized the interest in protecting the psychological wellbeing of children from disturbing speech as compelling, the interest is not supported by precedent. …

Easy Come, Easy Go: The Plight Of Children Who Spend Less Than 30 Days In Foster Care, Vivek Sankaran, Christopher Church

Articles

This article explores the plight of “short stayers” and argues that juvenile courts are failing to use two tools—the federal reasonable efforts requirement and the early appointment of parents’ counsel—to prevent the unnecessary entry of children into foster care. The article also argues that states should give parents and children the right to an expedited appeal of removal decisions to ensure removal standards are properly applied. Finally, this article argues that the federal government must acknowledge the problem of short stayers by utilizing data related to children who may unnecessarily enter foster care in the Child and Family Services Review, …

A Solution To Michigan's Child Shackling Problem, Gabe Newland

Michigan Law Review First Impressions

Detained children routinely appear before Michigan's juvenile courts shackled with handcuffs, leg irons, and belly chains. Once security officers bring a child to court in these shackles, the child usually remains in them for her hearing or trial. In Michigan, as in many other states, no statute or court rule requires the judge to decide whether shackles are necessary. This Essay argues that Michigan should pass legislation or amend state court rules to create a presumption against shackling children. Unless a child poses a substantial risk of flight or physical danger and less restrictive alternatives to shackling will not adequately …

No Harm, No Foul? Why Harmless Error Analysis Should Not Be Used To Review Wrongful Denials Of Counsel To Parents In Child Welfare Cases, Vivek Sankaran

Articles

The application of a harmless error standard by appellate courts reviewing erroneous denials of counsel in child protective cases undermines a critical procedural right that safeguards the interests of parents and children. Case law reveals that trial courts, on numerous occasions, improperly reject valid requests for counsel, forcing parents to navigate the child welfare system without an advocate. Appellate courts excuse these violations by speculating that the denials caused no significant harm to the parents, which is a conclusion that a court can never reach with any certainty. The only appropriate remedy for this significant problem is a bright-line rule …

Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran

Articles

Over the past hundred years, a consensus has emerged recognizing a parent's ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings. Yet, …

Judicial Oversight Over The Interstate Placement Of Foster Children: The Missing Element In Current Efforts To Reform The Interstate Compact On The Placement Of Children, Vivek Sankaran

Articles

This article argues that current efforts to reform the Compact are flawed because they lack an essential element: judicial oversight of agency decision-making. The first section explores the important role that juvenile court judges play in making placement decisions for foster children. Next, an examination of the current problems in the interstate placement process demonstrates the vital need for judicial oversight of the system. Finally, a specific proposal is put forth on how best to incorporate judicial oversight without interfering with the sovereignty of states.

Incorporating A 'Best Interests Of The Child' Approach Into Immigration Law And Procedure, Bridgette A. Carr

Articles

United States immigration law and procedure frequently ignore the plight of children directly affected by immigration proceedings. This ignorance means decision-makers often lack the discretion to protect a child from persecution by halting the deportation of a parent, while parents must choose between abandoning their children in a foreign land and risking the torture of their children. United States immigration law systematically fails to consider the best interests of children directly affected by immigration proceedings. This failure has resulted in a split among the federal circuit courts of appeals regarding whether the persecution a child faces may be used to …

From Pedagogical Sociology To Constitutional Adjudication: The Meaning Of Desegregation In Social Science Research And Law, Anne Richardson Oakes

Michigan Journal of Race and Law

In the United States following the case of Brown v. Board of Education (1954) federal judges with responsibility for public school desegregation but no expertise in education or schools management appointed experts from the social sciences to act as court advisors. In Boston, MA, educational sociologists helped Judge W. Arthur Garrity design a plan with educational enhancement at its heart, but the educational outcomes were marginalized by a desegregation jurisprudence conceptualized in terms of race rather than education. This Article explores the frustration of outcomes in Boston by reference to the differing conceptualizations of desegregation in law and social science. …

Juvenile Justice: The Nathaniel Abraham Murder Case, Eugene Arthur Moore

University of Michigan Journal of Law Reform

Once in a while, a case will come along that has such an enormous impact on the law that it is certain to draw attention. One such case was the Nathaniel Abraham murder case----a case involving the sentencing of a young eleven-year-old child in a system designed for older juvenile offenders, which demonstrated some of the novel and important issues facing the juvenile courts today. With the onset of such issues, the Juvenile Justice System has developed into a complex field of vital importance. Investing in the Juvenile Justice System allows us to invest in our future. Although frequently viewed …

Troubled Children And Children In Trouble: Redefining The Role Of The Juvenile Court In The Lives Of Children, Ann Reyes Robbins

University of Michigan Journal of Law Reform

This Essay considers the emerging research in the area of dual-jurisdiction children, often referred to as "crossover kids "-those currently or previously involved in maltreatment proceedings who have also committed delinquent acts. Part I describes the development of the juvenile courts in the early twentieth century. Part II of this Essay questions the need to "track" children along one legal path or another and points to the pitfalls of providing services to some children through a criminal justice paradigm instead of treating all children through a social work paradigm. Finally, Part III advocates a redesign of the juvenile court- a …

Looking Ahead: A Personal Vision Of The Future Of Child Welfare Law, Donald N. Duquette

University of Michigan Journal of Law Reform

The participants in the Thirtieth Anniversary Celebration of the Child Advocacy Law Clinic were all challenged to envision the future of child welfare and to address these questions: What should the law and legal institutions governing children's rights and child and family welfare look like in thirty more years? What steps are necessary to achieve those goals? After setting out the historical and optimistic circumstance in which the Child Advocacy Law Clinic was founded, this Article responds to the organizing questions by presenting the author's vision of the future of child welfare law and practice. When families fail children, what …

Introducing The Construct Of The Jury Into Family Violence Proceedings And Family Court Jurisprudence, Melissa L. Breger

Michigan Journal of Gender & Law

This Article draws upon both the theory of and research on procedural justice holding that litigants often focus on the appearance of fairness rather than on the actual outcome. Thus, when litigants are able to choose the modality of fact-finding, they may be more accepting of the legal process, even if the outcome is not favorable to them. Allowing the option of a jury, even if not exercised, may dramatically improve the perceptions of litigants and may affect the legitimacy and longevity of case outcomes.

From Presumed Fathers To Lesbian Mothers: Sex Discrimination And The Legal Construction Of Parenthood, Susan E. Dalton

Michigan Journal of Gender & Law

In Part I of this article, Dalton briefly reviews the way legal scholars commonly define sex-based discrimination, particularly as it pertains to issues of reproduction. Part II is a brief historical review of legal constructions of parenthood. In Part III, Dalton examines two legal concepts: retroactive legitimation and presumed fatherhood. Both concepts were introduced in 1872 and each independently encouraged judges to think of fatherhood as consisting of two distinct spheres, the biological and the social. She then traces the legal development of these concepts through a series of presumed father, retroactive legitimation, and putative father cases. In Part IV …

The State Judiciary's Role In Fulfilling Brown's Promise, Quentin A. Palfrey

Michigan Journal of Race and Law

After a brief overview of school finance litigation since Rodriguez and school desegregation cases since Brown, Part I argues that the "adequacy" model of reform addresses many of the underlying concerns of the equity model without sharing its methodological and strategic shortcomings. Part II focuses in more detail on Campaign for Fiscal Equity v. State ("CFE"). Part III argues that education reform that is implemented after a finding that a state has violated a state constitutional duty should: (1) equalize funding to the extent necessary to guarantee certain minimum necessary inputs such as qualified teachers, small class …

The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman

Articles

The adjudication of child abuse claims poses an excruciatingly difficult conundrum. The crime is a terrible one, but false convictions are abhorrent. Often the evidence does not support a finding of guilt or innocence with sufficient clarity to allow a decision free of gnawing doubt. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child. Even with respect to adult witnesses, the law of hearsay and confrontation is very perplexing, as anyone who has studied American evidentiary law and read Supreme Court opinions on the …

Rationalizing Juvenile Justice, Carolyn J. Frantz

Michigan Law Review

Few issues have occupied the public mind so much in recent years as the problem of youth violence. Due to sensational school shootings and public paranoia about the violence of youth gangs, America is concerned - very concerned - about the growing criminality of its children. In our concern, we find ourselves caught in the classic conundrum of criminal responsibility: reconciling the unavoidable knowledge that much of human behavior is determined with our strong instincts about free will. We blame violent television and video games, we blame single mothers, we blame low church attendance, but when all is said and …

Speaking To Tribal Judges On The Matter Of Improving Children's Court Practice In Child Abuse And Neglect Cases In Our Country: A Proposal For A Uniform Children's Code, Julian D. Pinkham

University of Michigan Journal of Law Reform

Since the 1970 the responsibilities of the tribal children's courts have increased dramatically. In child welfare case tribal courts no longer simply determine whether a child has been abused or neglected. They now also oversee the placement of the child in a shelter, foster care, or a permanent home, as well as determine the parent's treatment or visitation rights The complexity of the cases causes unacceptable delays in placing Indian children in need of care and hinders the placement of Indian children within the tribal community.

Judge Pinkham introduces a proposed solution to the problems of current tribal child welfare …

Imagining Children's Rights, Suellyn Scarnecchia

Articles

Today, I will tell you some stories about real, live children, whose futures have been determined by our legal system. To speak of children's rights hypothetically, raises images of children suing to go live with their rich uncle or suing to demand a Nintendo system from their parents. I hope that by bringing you stories of the legal system's treatment of real children, you will have a better understanding of what I mean by children's rights and why they must be recognized. Although children's rights have been recognized in limited ways in the areas of free speech, criminal law and …

A Child's Right To Protection From Transfer Trauma In A Contested Adoption Case, Suellyn Scarnecchia

Articles

On August 2, 1993, I arrived at the home of Jan, Robby, and Jessica DeBoer' a few hours before the transfer. At 2:00 P.M. I would carry Jessica out of her home and deliver her to the parents who had won the case,2 her biological mother and father. This task probably would have been easier had I not spent eight days in the trial court listening to the experts explain that this transfer from one set of parents to another would harm Jessica.3 It would have been easier had I not recently obtained affidavits from other experts to persuade the …

Who Is Jessica's Mother? Defining Motherhood Through Reality, Suellyn Scarnecchia

Other Publications

The recent Baby Jessica case and others like it have renewed the nature versus nurture debate in family law. Baby Jessica's biological parents, the Schmidts, sought to obtain permanent custody of their daughter after giving her up for adoption to the DeBoer family. Their argument was one that found its basis in biology and the idea of a traditional family. On the other hand, with the assistance of Professor Scarnecchia, the DeBoers argued that it was more important forJessica's overall health to remain with her primary caretakers of two years. Courts, however, have taken a more traditional view of this …

Videotaping Children's Testimony: An Empirical View, Paula E. Hill, Samuel M. Hill

Michigan Law Review

Increases in the number of reported incidents of child abuse and sexual molestation have resulted in more and younger children becoming courtroom participants. Some courts refuse to consider the special needs of the child in this adversarial environment. Relying on questionable precedent, these courts hold that the defendant's right to directly confront the child, as well as strict compliance with evidentiary rules, overrides that child's interest in freedom from embarrassment or psychological trauma. This Note focuses on pressures felt by the testifying child and the ways in which these pressures affect her testimony; it then proposes using videotaped testimony as …

Child Sexual Abuse Cases: Reestablishing The Balance Within The Adversary System, Mary Christine Hutton

University of Michigan Journal of Law Reform

This Article begins with an overview of the adversary process and how it has changed in recent years to respond to the needs of children. The Article highlights two of the goals of the adversary process-(!) testing and probing of two sides to a story, and (2) refraining from a decision until the complete story is told-to examine how they can be retained in spite of these changes. Part II pinpoints the assignment of multiple or poorly-defined roles to the child sexual abuse professionals as one of the potential impediments to preserving the goals of the adversarial system. The performance …

Improving Parent-Child Relationships Within The Divorced Family: A Call For Legal Reform, John S. Murray

University of Michigan Journal of Law Reform

In this Article, I address these three questions within the framework provided by the goal to be achieved. Part I outlines the present system and its problems, discussing both its effects on divorced family members and the problems inherent in the exclusive custody rule. Part II builds a proposal for legal reform by first considering the effect of conflict within the family, then identifying five value guidelines that should control the relationships, and finally describing the proposal in detail. Part III analyzes the pros and cons of the reform proposal to determine whether its adoption could establish a healthier environment …

Rethinking The Substantive Rules For Custody Disputes In Divorce, David L. Chambers

Articles

A few states, mostly in the West and South, still retain a preference in custody disputes for placing young children with their mothers. In most other states, legislatures or courts have replaced the maternal presumption with a rule directing courts to be guided solely by the child's "welfare" or "best interests." A few legislatures have created a new preference for joint custody, directing courts to consider favorably requests by a parent for such arrangements, even over the objection of the other parent. This Article argues that the trend away from the maternal presumption is sensible, but that the current best-interests …

The Public Right Of Access To Juvenile Delinquency Hearings, Michigan Law Review

Michigan Law Review

Despite the differences between the criminal and juvenile court systems, the Supreme Court has extended many criminal procedural safeguards to juvenile delinquency hearings. The Court does not, however, "automatically and preemptorily" apply every procedural safeguard to juvenile hearings; rather, it carefully examines the criminal trial standard in the context of delinquency hearings. Adopting a similar approach, this Note considers the implications of a constitutional right of access to juvenile delinquency hearings. Part I examines the right of access announced in Globe Newspaper and Richmond Newspapers v. Virginia. Part II looks at the juvenile justice system and argues that extension …

Men Who Know They Are Watched: Some Benefits And Costs Of Jailing For Nonpayment Of Support, David L. Chambers

Articles

Suppose that by some mysterious process the police in your town received each Monday a list of all the robberies and burglaries committed during the preceding week and the names of the persons who committed them. Suppose further that the list itself was admissible in evidence at trial and generally led to conviction. And suppose finally that persons considering committing offenses knew that the police had such a list and used it, relentlessly tracking down the miscreants named on it. Under such circumstances, one would probably expect that many potential offenders in the town with the magical list would resist …