Law Commons^™

Race And Regulation Podcast Episode 1 - Black Families Matter, Dorothy E. Roberts

Penn Program on Regulation Podcasts

Drawing on her latest book, Torn Apart: How the Child Welfare System Destroys Black Families—And How Abolition Can Build a Safer World, law and sociology expert Dorothy Roberts of the University of Pennsylvania examines the fundamental racism of the child welfare system, which she argues regulates families in ways that disproportionately and negatively affect people of color. She explains why this system of family regulation should be dismantled and replaced with one that better protects children.

The Most Dangerous Branch Of Science? Reining In Rogue Research And Reckless Experimentation In Social Services, James G. Dwyer

Faculty Publications

Most people are unaware how much public policy is either lacking in any empirical-research support or driven by bad research. Political actors motivated by ideology or donor/constituent demands propose new government practices—in areas ranging from policing to funding of treatments for gender dysphoria in youth to welfare-qualification rules—that will greatly impact people’s lives, and if anyone asks what basis they have for thinking the impact will be good, they can readily find some study to support their case. Especially when powerless populations are put at risk, neither the legislative process nor peer review in the publication process provides a real …

In Deciding Fulton V. Philadelphia, The Supreme Court Should Remember That Foster Care Is For The Children, James Dwyer

Popular Media

No abstract provided.

Icwa’S Irony, Marcia A. Yablon-Zug

Faculty Publications

The Indian Child Welfare Act (ICWA) is a federal statute that protects Indian children by keeping them connected to their families and culture. The Act’s provisions include support for family reunification, kinship care preferences, cultural competency considerations and community involvement. These provisions parallel national child welfare policies. Nevertheless, the Act is relentlessly attacked as a law that singles out Indian children for unique and harmful treatment. This is untrue but, ironically, it will be if challenges to the ICWA are successful. To prevent this from occurring, the defense of the Act needs to change. For too long, this defense has …

An Act Respecting First Nations, Inuit And Métis Children, Youth And Families: Does Bill C-92 Make The Grade?, Naiomi Metallic, Hadley Friedland, Aimée Craft, Jeffery Hewitt, Sarah Morales

Reports & Public Policy Documents

On Thursday, February 28, 2019, the federal government introduced Bill C-92, An Act respecting First Nations, Métis and Inuit children, youth and families for first reading. After many years of well documented discrimination against Indigenous children, there is much hope in this legislative process to reverse this trend, empower Indigenous peoples to reclaim jurisdiction in this area, and ensure the rights of children are affirmed. To realize those hopes, we have drafted this analysis with the aim to improve the current legislation as it moves through committee and the Senate.

The Promise And Pitfalls Of C-92: An Act Respecting First Nations, Inuit, And Métis Children, Youth And Families, Naiomi Metallic, Hadley Friedland, Sarah Morales

Reports & Public Policy Documents

On June 21, 2019, Bill C-92 An Act Respecting First Nations, Inuit and Métis Children, Youth and Families became law. The Bill is a huge and unprecedented step forward in Canada. It is the first time the federal government has exercised its jurisdiction to legislate in the area of Indigenous child welfare.

In this article, we identify both the improvements in Bill C-92 since our last report as well as key problems that remain in the five following areas: 1) National Standards 2) Jurisdiction 3) Funding 4) Accountability 5) Data Collection We also suggest strategies to assist Indigenous communities in …

A Human Right To Self-Government Over First Nation Child And Family Services And Beyond: Implications Of The Caring Society Case, Naiomi Metallic

Articles, Book Chapters, & Popular Press

English Abstract

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, headed by Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with …

A Human Right To Self-Government Over First Nation Child And Family Services And Beyond: Implications Of The Caring Society Case, Naiomi Metallic

Articles, Book Chapters, & Popular Press

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, headed by Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with its funding …

Racial And Gender Justice In The Child Welfare And Child Support Systems, Margaret Brinig

Journal Articles

While divorcing couples in the United States have been studied for many years, separating unmarried couples and their children have proven more difficult to analyze. Recently there have been successful longitudinal ethnographic and survey-based studies. This piece uses documents from a single Indiana county’s unified family court (called the Probate Court) to trace the effects of race and gender on unmarried families, beginning with a sample of 386 children for whom paternity petitions were brought in four months of 2008. It confirms prior theoretical work on racial differences in noncustodial parenting and poses new questions about how incarceration and gender …

The Broad Implications Of The First Nation Caring Society Decision: Dealing A Death-Blow To The Current System Of Program Delivery On-Reserve & Clearing The Path To Self-Government, Naiomi Metallic

Articles, Book Chapters, & Popular Press

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, its Executive Director, Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with its …

Earned Income Tax Credit Portability: Respecting The Autonomy Of American Families, Mary Leto Pareja

Faculty Scholarship

The Earned Income Tax Credit (EITC) was a key component of the welfare reform movement that began in the 1970s and expanded in the 1990s. Politicians and the public saw the EITC as a helping hand to working families -- a way to make work pay.' The EITC today is the single largest federal anti-poverty program in the United States. Although the EITC clearly is targeted at families with children, it is not optimally structured to improve child welfare. The current rules limit EITC eligibility to a taxpayer who lives with a child more than six months of the year, …

In Re Sanders And The Resurrection Of Stanley V. Illinois, Josh Gupta-Kagan

Faculty Publications

In 1972, the Supreme Court in Stanley v. Illinois declared that parents are entitled to a hearing on their fitness before the state places their children in foster care. Somewhat oddly, Stanley went on to be cited as a leading case regarding the rights of unwed fathers to object to private adoptions favored by mothers -- an issue not present in Stanley. Odder still, most states routinely violated Stanley in child welfare cases -- the context in which the Stanley rule arose. Most states apply the "one parent doctrine," which holds that finding one parent unfit justifies taking the child …

Getting Kids Out Of Harm's Way: The United States' Obligation To Operationalize The Best Interest Of The Child Principle For Unaccompanied Minors, Erin B. Corcoran

Law Faculty Scholarship

The government estimates by the end of the fiscal year over 90,000 children will enter the United States. According to the United Nations High Commissioner for Refugees 58% of these children were forcibly displaced and are potentially in need of international protection. However, in U.S. immigration law unaccompanied children are often seen as illegal migrants and law enforcement prioritizes their “alien” status over their status as children. As the crisis escalates, many of these children are being housed at emergency shelters in icebox-cold cells – nicknamed hierleras, Spanish for freezers, with no access to food or medical care, while DHS …

Beyond Law Enforcement: Camreta V. Greene, Child Protection Investigations, And The Need To Reform The Fourth Amendment Special Needs Doctrine, Josh Gupta-Kagan

Faculty Publications

The Fourth Amendment “special needs” doctrine distinguishes between searches and seizures that serve the “normal need for law enforcement” and those that serve some other “special need,” excusing non-law enforcement searches and seizures from the warrant and probable cause requirements. The Supreme Court has never justified drawing this bright line exclusively around law enforcement searches and seizures but not those that threaten important non-criminal constitutional rights.

Child protection investigations illustrate the problem: Millions of times each year, state child protection authorities search families’ homes, and seize children for interviews about alleged maltreatment. Only a minority of these investigations involve an …

Human Trafficking And Exploitation Of Children And Youth In The United States- Outcome Document, Katherine Kaufka Walts Jd

Center for the Human Rights of Children

The conference entitled, “Human Trafficking and Exploitation of Children and Youth in the United States,” was held at Loyola University Chicago on September 22-23, 2010, sponsored by the Center for the Human Rights of Children.

The purpose of the conference was to bring national, multi-sector and interdisciplinary experts and participants together to discuss the plight of children being trafficked to and within the United States. The goal of the conference was not only to present an overview of child trafficking in the United States, but also to provide an opportunity to initiate dialogue among a network of professionals and to …

Changing The Narrative Of Child Welfare, Matthew I. Fraidin

Journal Articles

No abstract provided.

Parents' Self-Determination And Children's Custody: A New Analytical Framework For State Structuring Of Children's Family Life, James G. Dwyer

Faculty Publications

No abstract provided.

Building A Child Welfare Response To Child Trafficking Handbook (2011), Katherine Kaufka Walts Jd, Shelby French Msw, Msc, Heather Moore Msw, Sehla Ashai Jd

Center for the Human Rights of Children

In 2007, the International Organization for Adolescents (IOFA), under the leadership of Katherine Kaufka Walts the then Executive Director, developed and launched the Building Child Welfare Response to Child Trafficking project. The purpose of this project is to build the capacity of child welfare agencies and service providers to identify and respond to this often invisible and underserved population. The primary goals are to ensure that children are correctly identified as trafficked persons and that they receive the appropriate protections and referrals to specialized services to which they are entitled under federal and state laws. This project, supported by funding …

Stories Told And Untold: Confidentiality Laws And The Master Narrative Of Child Welfare, Matthew I. Fraidin

Journal Articles

In most states, child welfare hearings and records are sealed or confidential. This means that by law, court hearings and records may not be observed. The same laws and court rules also preclude those who are authorized to enter and watch from discussing anything learned or observed in a closed courtroom or from a sealed court record with anyone not involved in the case. It is the restriction on speech—on telling stories about child welfare—with which this Article is concerned. I will argue in this Article that the insights of narrative theory and agenda-setting studies help us understand the damaging …

Constitutional Birthright: The State, Parentage, And The Rights Of Newborn Persons, James G. Dwyer

Faculty Publications

State parentage laws, dictating who a newborn child's first legal parents will be, have been the subject of constitutional challenges in several U.S. Supreme Court and many lower court decisions. All of those decisions, however, have focused on constitutional rights of adults (especially unwed biological fathers) who wish to become, or to avoid becoming, legal parents. Neither courts nor legal scholars have considered whether the children have any constitutional rights that constrain legislatures and courts in deciding which adults will be their legal parents. If a state enacted a parentage law that said, for example, that any child born to …

Book Review Of The Best Interests Of The Child In Healthcare, James G. Dwyer

Faculty Publications

No abstract provided.

Family Structure, Children, And Law, Vivian E. Hamilton

Faculty Publications

No abstract provided.

Reunification Of Child And Animal Welfare Agencies: Cross-Reporting Of Abuse In Wellington County, Ontario, Lisa Anne Zilney, Mary Zilney

Department of Justice Studies Faculty Scholarship and Creative Works

Institutional change has resulted in the separation of organizations for the protection of animals and children. This project reunites two organizations to examine associations between human violence and animal cruelty. For 12 months, Family and Children's Services (FCS) investigators and Humane Society (HS) investigators in Wellington County, Canada, completed checklists to examine connections between forms of violence. FCS workers found some cause for concern in 20% of 1,485 homes with an animal companion. HS workers completed 247 checklists, resulting in 10 referrals to FCS. The first study of its kind, this project details the findings of cross-reporting in Wellington County …

Foster Care Placement: Reducing The Risk Of Sibling Incest, David J. Herring

Articles

The Westermarck theory maintains that incest avoidance arises from the physical proximity of siblings during a critical period of early childhood. This proximity gives rise to an inhibiting effect on post childhood sexual interest. Two recent studies of sibling relationships have verified and refined the Westermarck theory, indicating that the critical period extends through the first four years of childhood.

The theory and the studies have implications for child welfare laws, policies and practices surrounding the placement of siblings in foster care. Namely, the findings provide powerful reasons for placing siblings together during the critical period in order to minimize …

Children's Interests In A Family Context - A Cautionary Note, James G. Dwyer

Faculty Publications

No abstract provided.

The Children We Abandon: Religious Exemptions To Child Welfare And Education Law As Denials Of Equal Protection To Children Of Religious Objectors, James G. Dwyer

Faculty Publications

The story of children who die because their parents, in observance of their own religious principles, withhold conventional medical treatment from them is a familiar one. In this Article, James G. Dwyer shows that the phenomenon of parents denying secular benefits to their children for religious reasons goes far beyond these few highly publicized cases, extending into the realm of education as well as medical care. Moreover, Dr. Dwyer shows that the federal and state governments endorse this practice by statutorily exempting 'religious objector' parents from otherwise generally applicable compulsory child care and education laws. He argues that courts addressing …

God Bless The Child: Poor Children, Parens Patriae, And A State Obligation To Provide Assistance, Kay P. Kindred

Faculty Publications

No abstract provided.

A Choice For K'Aila: Child Protection And First Nations Children, Jocelyn Downie

Articles, Book Chapters, & Popular Press

K'aila's story raises serious questions about child protection and First Nations children. Was it appropriate that a non-First Nations social services agency made the initial assessment of whether K'aila was in need of protection, that a non-First Nations court had the power to decide whether K'aila was in need of protection, and that Francois and Leslie's decision was held to a non-First Nations standard of care? Was K'aila well-served by the child welfare system?

Adoption: A Plea For Realistic Constitutional Decisionmaking, Larry I. Palmer

Faculty Publications

No abstract provided.