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A. Childhood in America- Status of Childhood

1. Children were traditionally seen as quasi-property of parents, especially

fathers. They had no legal rights separate from parents, and generally
were not listened to
a. Strange, since they were kind of viewed as miniature adults,
but they still didnt have any legal rights
2. States determine that childhood lasts until age of majority, 18 in most
states, lowered from 21 which lasted through most of our nations history
a. A blanket statute, applies to all no matter how mature
b. This applies except when child is emancipated, and in some
abortion decision cases (Belotti v. Baird)
c. Although a child may be considered adult at age 18, there are
rights that they may not get until later, like the right to purchase
3. Fun Facts: The US has the highest rates of child homicide, suicide, and
fire-arm related deaths among 26 industrialized countries
4. US has highest poverty rate of any nation in the developed world, 17%
a. In reality this is many more children, could be closer to 1 in 4
children living in homes that cant provide for their needs
5. 2003 is the 100th anniversary of the first Juvenile Court in MO
a. We were about the 7th or 8th state to have one, now all states have
juvenile courts in some form or another

B. The Four Arms of Juvenile Court Jurisdiction - Juvenile courts have

exclusive original jurisdiction over these four areas:

1. Abuse and Neglect civil proceedings to determine if parent or

guardian has physically, emotionally, or sexually abused child or has failed
to provide a minimal level of support, education, nutrition or medical or
other care necessary for childs well being
2. Adoption
3. Status Offenses offenses that can only be committed by juveniles, act
would not be a crime if committed by an adult
a. Ex truancy, ungovernability, runaway, curfew laws, etc
4. Delinquency act committed by juvenile that would be a crime if done
by adult
5. Sometimes hear guardianship, commitment proceedings for children,
consent to abortion, underage marriage

C. Family Courts many more jurisdictions have replaced juvenile courts with
unified family courts, which allow one specialist judge to resolve all family

matters, including divorce, paternity suits, domestic violence, emancipation, child
and adult protection orders
1. Criticisms of Juvenile Court that it is piecemeal, doesnt hear
everything, can cause conflicting orders, are worried about removing
domestic violence cases from criminal jurisdiction
2. Pros of Family Courts efficient, saves time, children wont have to
testify in multiple proceedings (less traumatic)
3. MO - in 1993 enacted statute creating unified family courts in seven
first-class (high population) counties. Statute also provides that a family
court can be created by court rule in any other circuit in the state
a. MO has replaced juvenile court with Family Courts in St. Louis
City, Kansas City, Springfield, and Boone County
b. About 20 states use Family Courts
c. The expense might be too great in smaller counties, which is
why they arent required to use them

What gives the state power to regulate over juveniles?

D. Parens Patriae Doctrine - Parent of the Country Came over to US when we

adopted English common law, was the right and responsibility of the English
Crown to protect persons that were legally incapable of caring for themselves.
*Parents Patriae confers state authority to protect or promote a particular childs
1. In England, Parens patriae usually extended to children, mental
incompetents, and charities, and was based on economic status of person.
Also was only based on dependent status, not delinquent behavior

E. The Police Power of the States in addition to parens patriae, state can also
regulate children and family matters under police power

1. Police power is states inherent plenary power to protect citizens from

harming one another and promote all aspects of public welfare
2. Parens patriae would give states power that it wouldnt have under
police power though, if it didnt harm others or public welfare (only that

*Note at common law, children were expected to obey parents fully, at one point
punishable by death for violation (1641). This implication that children would obey is
implicit in early cases.

F. Establishing the Weighing Process - Early Cases

1. Meyer v. Nebraska (1923) State statute forbade teaching of any subject

in any language other than English until after child finished 8th grade.
Court struck down statute, saying that while states can do much to protect

citizens mentally and morally, the individual still has certain fundamental
rights that must be respected
2. Rule in Meyer - Parents have fundamental right to determine
childs education suitable to their station in life, stemming from
Substantive Due Process of 14th amendment. Parents have a liberty
interest in establishing a home and bringing up children
3. Weighing Process Meyer established that parents have a fundamental
right to raise their child as they see fit without unreasonable interference
by the state. Courts must weigh parents liberty interests against states
parens patriae interests.
a. The state has valid interests in making sure that children attend
school and make reasonable regulations for schools, but this wasnt
b. CURRENT weighing process also takes childrens interest into
Parents liberty interests vs.
States parens patriae interests vs.
Childs liberty interests
2. Pierce v. Society of Sisters (1925) State law enacted required all .parents
to send their child to public school, would have put parochial schools out
of business. Statute was struck down as an unreasonable interference with
liberty of parents/guardians to direct upbringing and education of children
3. Rule in Pierce: Parents and guardians have a fundamental right to
direct upbringing and education of children. The child is not the mere
creature of the state, those who nurture him have right and duty to
direct his destiny
4. This case reaffirmed Meyers recognition of liberty interests

*Neither Meyer nor Pierce mentioned the interests of children, however, but still are
landmark cases that prevail to this day for establishing due process liberty interest of
parents vs. states interests. Childrens rights werent recognized until Prince

G. Establishing Childrens Interests

1. Prince v. Massachusetts (1944) Mom had her daughter on the streets

selling Jehovahs Witness literature; truancy officer said that this was
violation of child labor laws. Mom claimed violation of First and 14th
amendment by state.
2. Held: Relying on Pierce, court held that law was constitutional. The
states interests in enacting Child Labor Act were valid, ultimately
outweighed parents interests, and law was upheld
3. Rule in Prince - The custody, care and nurture of the child resides
first in the parents, whose primary function and freedom include
preparation for obligations the state can neither supply nor hinder.
However, the states authority over childrens activities is broader
than over adult activities.

4. This was first case to recognize childrens rights
a. Right to free exercise of religion, and also interpreted Meyer and
Pierce to support childrens right to receive education
5. This case also recognized parents rights
a. Parental authority in household and raising children
b. Right of parent to give child religious training
c. Respect of the private realm of family life, which the state
cannot enter
6. Also recognized states rights
a. Family not beyond state regulation parens patriae doctrine
b. Child welfare can be reasonably protected
7. Brown v. Board of Education was important because children were
named plaintiffs (suing through representatives), and the case vindicated
the childrens rights.
8. In Re Gault constitutionalized the Juvenile Court system. In Gault,
the Court established that children do have Procedural Due Process rights,
taking away some of the states parens patriae discretion. The challenge
was to the procedure afforded juveniles in the juvenile justice system.
When picked up, the juvenile authorities did not provide notice to the
parents of his wherabouts, at proceedings he was faced with a 6 year
sentence, he had no attorney
a. Held: Neither 14th amend or Bill of Rights is for adults only
b. Due Process of 14th amendment extends some constitutional
rights to minors in juvenile proceedings. Jury trial is not extended
(6th amend)

H. The High-water Mark for Childrens Rights the Court has cut back since

1. Tinker v. Des Moines Independent Community School Dist. (1969)

Students wore black armbands to protest Vietnam War in school and were
suspected. They claimed violation of 1st amend freedom of expression
rights under 14th amendment
2. Held: Discipline was an unconstitutional interference with freedom of
expression. Court established that children do not shed constitutional
right of freedom of speech or expression at the schoolhouse gate, and
children are persons under the Constitution
a. However, if expression action would interfere with functioning
of school, they could be barred or disciplined. No disruption of
school activities here
b. Dont have to actually wait until disruption occurs, if it is
reasonably foreseen, then school officials can act (difficult test)
3. Burden on State the state is required to show that students activity
materially and substantially interfered with order in the operation of the
school or discipline is unconst.
4. Aftermath of Tinker (p 22-30 in supplement)

a. Hair length regulations have divided courts. Many uphold
regulations rejecting arguments that this is symbolic speech, other
have struck laws down.
b. Dress codes arent challenged too often due to efforts to give
uniforms to poor or allowing parents to opt out Due Process rights
of school children
c. Goss. V. Lopez Ct said that Due Process requires that there be a
hearing given to a student that is going to be suspended. This is no
great feat, but students must be given notice and allowed a
meeting, even if the student denies all allegations
d. Board of Educ. v. Pico School banned books, plurality of court
said students have 1st amend right to receive information. Due to
Tinker and the allowance of prevention of disruption aspect, many
schools were allowed to remove books but had to weigh this
against rights of children
e. NJ v. TLO - School searches school officials do not need
warrant or probable cause, reasonable suspicion is enough to
search students person, locker, book bag, etc. This clearly held
that students rights are more restricted than adults
f. Bethel School Dist. v. Fraser demonstrated that kid making
vulgar sexual speech could still be disciplined, Court moving
totally away from Tinker said that school board should be deferred
to for determination of what manner or speech in classroom or in
school assembly is inappropriate
g. Hazelwood School Dist v. Kuhlmeier (1988) said that school
board could exercise editorial control over high school newspapers
content, as long as it is reasonably related to legitimate
pedagogical concerns
h. Vernonia School Dist v. Action Court upheld random urinalysis
drug testing of athletes in school. Search was reasonable because
privacy intrusion was negligible, because govt interest was
compelling, and because athletes had decreased expectation of
i. Board of Education v. Earls (2002) S. Ct said that random
suspicionless drug testing of athletes was a-ok, citing Vernonia
School Dist v. Action (95), because schools compelling interests
outweighed students expectation of privacy, which was minimal,
and because search was minimally intrusive.
j. Children DO have Due Process rights in school, though. Notice
and hearing must precede removal of student from school
10. Summing up School stuff: Schools stand in loco parentis over
children, permits a degree of supervision and control that couldnt be
exercised over free adults
11. Parental Rights? Troxel v. Gainville (2000) plurality of court held that
application of state statute allowing court to grant visitation at any time to

any person when it was in best interests of child, was unreasonable
interference in this case.
a. Court said it should be determined on case by case, however
b. Troxel head count p 32-So at least 8 of the Justices are willing
to say that Meyer and Pierce are still good law, Justice Souter
didnt discuss it
c. At least 7 Justices concluded that in third-party visitation cases,
that Meyer and Pierce requires a weighing of the interests
12. Interpretations of Troxel On one hand, it is a reaffirmation of parents
rights, on the other, a reaffirmation that states have to have a legitimate
interest if they are going to reasonably interfere
a. The weighing process only occurs if party has a legal right under
substantive law. Here, the children had no such right. However,
the state should look to its parens patriae authority and always do
what is in the best interest of the child, even if the child has no
legal rights

I. May Children Articulate their own Interests?

1. In late 60s, people began to think that if children could go to war, they
should be able to vote and drink. More than half the states lowered
drinking age, and Constitutional amendment lowered voting age
2. Wisconsin v. Yoder (1972) Amish parents made their children quit
school after 8th grade, state brought charges pursuant to compulsory
attendance law. Amish parents bring a free exercise and interference with
child rearing claim. The Court did not take into account the interests or
wishes of the child or even ask him if he wanted to attend school
a. Criminal Proceeding evidence of whether child wanted to go
to school was not relevant evidence that could be presented in this
i. This is a factor when determining whether to go civil or
b. Douglass dissent suggested that children have a constitutional
right to be heard, to determine whether they wished to attend
school, but majority said this was parents decision
3. Mature-Minor Doctrine allows a court to obtain views and opinion of
minor if they appear capable of articulating a reasoned preference on
important matters regarding their welfare
a. If statute says that childs wishes are irrelevant, they will not be
taken into account
b. Discretion exists for the court to determine the appropriateness
of such a doctrine in certain situations
c. Usually children are interviewed in an in camera hearing or
through a guardian ad litem
4. Some statutes compel court to inquire of child as to her wishes

a. MO child custody code: In divorce proceedings, court may ask
child as to which parent she wants to live with
b. MO adoption code: before child is adopted, must have written
consent. In MO, children 14 and above are always heard, and
generally are also heard even if under 14 as a factor ( < 6 is
probably too young)
5. Reasons why children are not given some rights:
a. Viewed as inherently vulnerable
b. Inability to make informed decisions
c. Importance of parents constitutional child-rearing rights
6. Bellotti v. Baird (1979) 4 Justice plurality staked out a narrow
constitutional zone of privacy for children. Involved the constitutional
right to seek abortion (to make autonomous decision whether or not to
bear child). Held:
a. Absolute parental veto power is undue burden, unconstitutional
b. State must provide judicial bypass procedure of going to require
minor to obtain parental consent. If the minor shows the court
i. She is mature and well informed enough to make
decision and has consulted with doctor, OR
ii. She otherwise show that this would be in her best
interest, then court can sanction operation
7. Parham v. J.R. (1979) Juvenile commitment case, Court suggested that
invocation of mature-minor doctrine should be the exception rather than
the rule, and that there is a presumption that fit parents make decisions that
are in the best interests of their child
8. In the Matter of Lori M some courts are willing to broaden the zone of
privacy found in Bellotti. Mother filed a status offense petition, claiming
Lori was incorrigible because she was associating with a 21 year old
lesbian. Lori argued that she was a mature minor and should be able to
make her own decisions.
a. Loris arguments behavior in school and out, age (15), general
demeanor, Tinker, 14th amendment rights (freedom of association
b. Held: Lori is mature enough to make this decision, as long as
she is not violating any statutory offense in regards to state
regulated sexual behavr
9. Medical Decisions if children want to refuse treatment on medical
grounds, they have been able to do so under mature/minor doctrine
10. Statutory Laws however, a minor cant argue that they are mature
enough that they should be able to drink before 21, or drive before 16

J. New Rights and Limitations Statutory Influence while constitutional

litigation has had a huge impact on status, rights, and obligations of children,
statutory and administrative regulations are more often used. The Individuals
with Disabilities Education Act (IDEA) is a very heavily litigated area in this

regard, created a federal right for (all?) children to have free appropriate public
education which covers about 10% of schoolchildren

1. Cedar Rapids Community School Dist v. Garrett F. (1999) Question was

whether child would have access to school because he needed a 24 hour
attendant. This was an issue of access to schools under (In statute, there
was no undue burden defense for the school like there is under ADA
2. IDEA States can opt out, but they wont get federal money if they
dont comply. The idea was to cover costs of schools, but it didnt nearly
cover all costs. The statute was part civil rights and part funding statute
hybrid. It provides that
a. If child is diagnosed by an expert with a disability (expert
b. School has to guarantee free, appropriate public education for
c. School must provide IEP
c. If so, school gets the cash (only 10% of costs)
3. There is a preference for mainstreaming under this statute, and this
causes much litigation either parents want it and school doesnt, or
parents want home schooling and school wont pay for it
4. Unilateral Parent Action when child cant function in public school,
then public school must pay for private school to meet special needs of
child. If school refuses to pay, parents can take unilateral action and sent
bill to school and sue for them to pay it (risky)
5. The Federal Act prevents school from expelling or expending disabled
for starting fights, endangering others, etc.
a. Can only remove or suspend the disabled student for a short
period of time while plans to start new program are pending.
Alternative education must be provided for disabled student

K. An International Basis for Childrens Rights?

1. UN Convention on the Rights of the Child adopted by UN in 1989

and ratified by virtually every nation, not yet American law, has not been
ratified by Senate.
2. Should US ratify this treaty?
a. Cons convention conflicts with already existing laws and
treaty may take away US court authority and government authority
regarding abortion
b. Pro US has moral persuasion in the world and we should take
the lead in protecting children
3. Perspectives on Childrens Rights Articles of Convention (p 98-103)
- Article 3 Section 3 most child welfare agencies in most states do not
meet the standard established in here, including MO
a. Art 9 would confer a right to open adoption records, which
only about 1 or 2 states have.

b. Art 12 would make the Mature/Minor Doctrine supreme law
c. Art 18 would have a huge effect on daycare, because we
havent provided this like many other countries have
d. Art 24 sounds like universal health care
e. Art 27 would have effect, we have very high child poverty
f. Art 37 would not let us punish children in criminal justice
system in the way that we do
4. There really is no International Law basis for childrens rights
Supreme Court does not consider this, only American law
5. Wald Article, Childrens Rights A Framework for Analysis. Courts
and legislatures vary widely when dealing with childrens rights. Most
policy is based on idea that children lack capacity to make decisions, but
we also dont want to treat them like property. There are four basic claims
under general childrens rights rubric:
a. Generalized claims against the world like right to freedom
from discrimination and poverty
b. Right to greater protection from abuse, neglect, exploitation by
c. Right to be treated in the same manner as an adult with same
constitutional protections
d. Right to act independently of parental control and/or guidance
6. Childrens rights get few political supporters children arent a big
lobbying group. Some argue that because they cant vote, they are barred
from the interest group bargaining that runs democracy


A. Introduction

1. Three major systems deal with child abuse or neglect:

a. Criminal Justice system
b. Welfare system
c. Child protection System civil proceedings, focus is on
condition of the child, not blame on parents or guardians
2. Child Protection System reportedly began in NY City in 1874, with
the case of Mary Ellen. Her case was brought y NY Society for
Prevention of Cruelty to Animals
3. Most states didnt have any abuse/neglect laws until around the 1870s,
but even after this time many didnt enforce. Children were still seen as
quasi-property, and it wasnt until the New Deal era that these were really
a. MO even had a statute that said that if parent killed child but it
occurred while they were disciplining, this was a defense

4. In the 60s, child abuse attracted attention of media due to reports on
battered child syndrome, by 67 all states had adopted mandatory
reporting laws
5. 1974 Congress enacted federal Child Abuse Prevention and Treatment
Act (CAPTA), which provided funding to states for abuse and neglect
programs and reporting statutes that used a broad definition of
6. The Child Abuse Prevention, Adoption, and Family Services Act of
1988 was even more inclusive in its definition
* See CB p 289 for Child Protection Legislation, and p 293 for diagram describing
reporting system
5. Abuse/Neglect issues are difficult because it involves a collision
between parental rights and states parens patriae interest. Generally,
states interest will outweigh parents liberty interests when abuse/neglect
has been found
a. MO Chapter 210 contains Child Abuse and Neglect Law

B. Discovering Abuse & Neglect Reporting Statutes

1. Every state now has reporting laws. Because most abuse/neglect occurs
in private, people are encouraged to report it whenever possible
2. Problems with Reporting bad faith reports (i.e. during divorce cases),
human error (due to reporter misinformation or official investigator error)
a. MO has a statute that in divorce cases, the fact that a report
was made is NOT admissible, but the facts underlying the report
may be
3. Mandatory Reporters are generally people that come in contact with
children frequently and would be in a good position to recognize
a. Teachers, medical personnel, social workers, coroners, etc.
Medical personnel cannot claim doctor/patient privilege, must
report and can be forced to testify also. They must report even if
abuse occurred 15 years ago, statutes are to protect current and
possible victims of future abuse
b. Mandatory reporters MUST report if they have reasonable cause
to support allegation
c. Lawyers are not included on this list, we are permissive
d. If we want to encourage people to report, there needs to be some
protection for reporters, especially mandatory reporters
d. Many states have immunity to mandated reporters and others
who report suspected abuse. Some states provide qualified
immunity only for those reports made in good faith, some states
disallow immunity if mandated reporter discloses suspected abuse
to a private party rather than the proper authorities

e. Mandated Reporters can be criminally or civilly liable if they do
not report suspected abuse,
4. Permissive/Non-Mandatory Reporters are not obligated to report but
may do so if done in good faith
a. Can be criminally liable if accusations are not made in good
b. Can examine these reporters motives in making report, because
this is frequently a tactic in divorce and custody disputes

Process for getting somebody on the registry - - -

5. Valmonte v. Bane Parents name was included on child abuse registry
for incident where she slapped child even though it was diverted out of
court (no finding by judge that abuse occurred). Statute said you can be
listed in registry if incident was adjudicated as abuse OR agency finds
abuse occurred
a. Implicates 14th amend Due Process Ask: Is there a protect-able
liberty interest in a central registry that communicated names of
those on the list? Do the states procedures adequately protect
those interests?
b. Held: Court found that some credible evidence of abuse
standard was TOO LOW to list people on registry, balancing Ps
Due Process interests and risk of erroneous deprivation of rights
against states interest
6. Standard Most states call for at lease PROBABLE CAUSE to exist
in order to place people on the Registry, due to strong liberty interests in
reputation, avoiding stigma and being able to obtain employment, and
family integrity
a. MO requires probable cause before person can be put on registry
7. MO Statutes:
a. 210.115 Mandatory reporters
b. 210.125 - Protective Custody provision, if police or physician
has reasonable cause to believe that there is abuse, they can request
JO to remove child immediately. If there is imminent danger child
can also be removed immediately, but JO must be notified right
away and there should be hearing within 24 hours
c. 210.135 Immunity is given for good faith reports (that are
d. 210.145 Creates hotline, establishes rules, investigation must
begin within 24 hours of report
e. 210.150 Confidentiality, Who gets access to Registry?
i. Federal, state or local criminal justice agency
ii. Physicians suspecting child has been neglected or
abused, physicians treating the child
iii. DYS, DFS staff
iv. Child who is a victim (named in report), childs parent
v. Alleged perpetrator

vi. Child care facilities, public or private, including schools,
daycares, agencies, anyone inquiring about such persons or
facilities. Some places may be required to check before
hiring to avoid a negligent hiring charge
vii. MO requires PROBABLE CAUSE before person can
be put on registry (much higher standard than the some
credible evidence overturned in Valmonte)
f. 210.152 Agency must make a determination within 90 days as
to whether abuse/neglect has occurred (based on probable cause),
and tell alleged perpetrator what agency has decided
ii. After agency finding, can go through review board then
to circuit court, which has de novo review

*Note while probable cause must exist for person to be put on registry, an investigator
can remove a child from the home if they have an objectively reasonable suspicion of
Question must be probable cause to put person on registry, objectively reasonable
suspicion of abuse, probable cause for agency finding that abuse has occurred, but clear
and convincing evidence to be adjudicated abused/neglected?

C. The Child Protection System Composite Case

1. There are Four Child Protective Agencies in MO Childrens Division

(formerly DFS), Dept. of Mental Health, Div. Of Youth Services, Juvenile
and Family Courts
2. There is a strong feeling among employees of these agencies that the
system is inadequately coordinated and inefficient for needs of child, and
that administrative policies and procedures can be barriers to the needs of
the child
3. There is often poor communication among the agencies because of
confidentiality concerns about childs history and care, can have agency
turf wars going on due to case load and budget problems, might also have
overlapping or contradictory services. High turnover of workers is also
a. DFS is just one child protective agency, there is also other social
service, law enforcement, legal, educational, medical, etc.
4. See CB p 299 for flowchart of steps in Child Protective Systems

D. Limits on Intervention

1. In re Knowack (1899)(NY) Parents wanted children back from private

aid society but agency refused, there were not yet any juvenile courts or
abuse/neglect statutes. The aid society likely didnt want to return
children because poverty was seen as a personality defect, discriminatory
towards immigrants

a. Rule: When children are removed from home in an abuse or
neglect case, determination of whether they should return is
made by the court, not agencies even though there was no law
to cite to this authority
2. In Re Juvenile Appeal (1983 CT) 9 month old child died from
unexplained causes, and authorities removed moms other 5 kids
temporarily (which lasted 3 years). Mom was not charged with abuse and
autopsy didnt show abuse/neglect
a. Held: Court exonerated mom and scolded welfare agency.
b. Balances three interests in determining when children should be
removed from home
i. States parens patria
ii. parents due process, &
iii. kids interests
3. Weighing Process is done at two different places:
a. Adjudication hearing (where abuse is found or not)
b. Dispositional hearing (to determine remedy)
States parens patria interests are compelling when abuse or
neglect is found if abuse and neglect grounds are tenuous, the
right to intervene may be limited by the due process void-for-
vagueness doctrine (CB p 307
Parents interest is fundamental (due process fundamental right to
raise children, from Meyer and Pierce)
Remedy must be narrowly tailored because of parents strong
4. MO Doctrine of Transferred Abuse/Neglect in Missouri, evidence
of abuse of one child will support the removal of all other children in the
a. Seizure of Child - MO requires that there is a juvenile
proceeding within 24 hours
5. If authorities know of abuse but dont know who did it, not enough
grounds to charge parent
a. Focus of civil abuse neglect is the childs welfare or the
condition of the child, while in criminal focus is on guilt or
innocence of defendant, so child can be adjudicated
abused/neglected and removed from home even if the perpetrator
isnt identified

*A good first argument to make is a statutory challenge Either that child doesnt fit
within this statutory definition, next that statute is void for vagueness (must be written
clearly enough to give notice to persons attempting to comply) or overbroad, that it is
facially invalid (no way it could be administered constitutionally) or invalid as-applied in
this particular case.

E. Patterns of Abuse & Neglect

1. Definitions of abuse and neglect are intentionally broad, but the range
of remedies is effectively the same.
2. What to Charge? Treatment may vary depending on charge
a. Neglect is more passive, less stigma, parents might be more
b. Abuse is more active, could be easier to prove than neglect,
parents might be more defensive and less amenable to
rehabilitation but it might be easier to remove kids from home in
an emergency
c. MO must prove abuse or neglect by clear and convincing
evidence (in adjudicatory phase?)

F. NEGLECT parental poverty is no longer a reason to charge neglect, but

often is a factor

1. Failure to Thrive is a typical neglect charge is (usually due to

a. Growth deficiency, has to be proven by medical testimony that
child started growing normally then something happened to
produce significant brain/developmental damage
b. This can take a long time to prove, however
2. In Re S.T. (96 UT) Children were removed and returned to home 3
times in a 7 year period. Severe abuse existed but agency continued to
work with parents, for too long possibly. Children suffered many neglect
symptoms such as:
a. Skin rashes due to poor hygiene
b. Malnutrition, lag in physical growth or mental development
c. Illness, inadequate medical care,
d. Physical effects, fetal alcohol or drug-related pregnancies
e. Educational neglect
3. Emotional Harm or Neglect very difficult to prove, jurisdictions vary
on grounds to find and how to prove. MO includes emotional harm in
statute, newer added law due to CAPTA mandates to get funding

G. ABUSE - Why do parents abuse?

1. Some typical family characteristics of Abusive Families:

a. Stress from economic hardship, isolation from other
b. Violence against mother
c. Medical care given in many different hospitals, parents
explanation does not match medical diagnoses
d. Intergenerational abuse patterns are typical
2. Battered Child Syndrome Dr Kempes article was very influential in
this area.

a. BCS indicated by ongoing stages of injury in various stages of
healing, reasonable probability that injuries are non-accidental,
children are usually withdrawn, confused.
3. Shaken Baby Syndrome whiplash type injuries, broken blood vessels
in eyes
4. Target Child only one child in the house abused, doctrine of
transferred abuse allows others to be removed, however. Sometimes
workers may not be aware of child since all others in home are unharmed


1. The parental privilege to discipline children is a constitutional right. It

is clear that America tolerates a certain amount of physical punishment,
regardless of debates on its effects on children. This Parental Privilege
(Res 2d Torts) is often brought up in abuse cases based on discipline of
a. The discipline must be REASONABLE, however
2. When does discipline rise to the level of abuse? Factors to Consider:
a. Frequency
b. Location of touching
c. Extent of injury
d. Age of child
e. Childs cognitive understanding of why discipline is occurring
f. Care being provided outside of discipline
g. Stability of the parents
3. Remedies available Most states, including MO require that remedies
are the LEAST RESTRICTIVE ALTERNATIVE as to not interfere with
parents rights
a. Home custody with conditions imposed on parents
b. Institutionalize child
c. Foster care
d. Physical, mental examination and treatment of child
f. Termination of parental right proceedings
4. In re C. Children (92 NY) Ended in Family Court because mother
refused to stop using a belt buckle to discipline kids. The court was
concerned about the severity of the abuse, but also determined that
children faced significant risk of physical injury. Parental privilege does
not extend this far
a. Rule: State must prove abuse/neg by showing substantial risk of
*Compare In re C children to Raboin, different burdens of proof for state based on
differing statutes
5. Raboin v. North Dakota Dept of Human Serv. Parents imposed
physical punishment on children by beating them with spoon or belt
a. Court held that state did not demonstrate serious physical harm
or traumatic abuse as a result of parents behavior

6. Summary Removal of Children Factors to consider before removing
a. Whether incident is likely to occur again
b. Likelihood of significant harm to child
c. Are the children otherwise healthy and cared for?
d. Were parents acting out of rage or discipline, religious or
cultural belief?
8. Orders of Protection provide an immediate remedy to abuse, can be
brought by private individuals regardless of age, so child can apply for one
against parents
9. International Corporal Punishment generally not as permitted as in
America, Sweden has outlawed it altogether, the UN Convention on
Rights of the Child condemned it in families and schools
10. Public Schools can use reasonable corporal punishment, do not have
to provide notice or hearing


1. Was not really acknowledged as problem until 70s. These cases are
relatively small percentage of child protective caseloads, but are likely
2. In re T.G. - Mom knew of abuse of girls and didnt do anything to
prevent it. She was found guilty of abuse as well, for failure to protect.
She also chose to live with the perpetrator, state terminated her rights
a. Failure to protect children is emphasized, focus is on the
protection of the child, not on punishing parent civil case
b. Termination of Parental Rights generally involves a course of
conduct, mom kept going back to stepfather, could not place kids
needs above hers
3. Proving the Case sexual abuse is difficult to prove due to the secrecy
and private settings in which it occurs, lack of witnesses. Criminal case
needs to be proved beyond a reasonable doubt, civil cases are usually
preponderance of evidence, but in MO is clear and convincing evidence
for abuse/neglect cases
a. Child is often the only witness
b. Physical evidence is often sparse
c. Frequently these cases are plea-bargained and not taken to court
d. Most cases generally need to have child testify and this is
4. In Matter of Nicole V. corroboration of child sexual abuse (hearsay
statements) may include any other evidence tending to support he
statements reliability
a. Expert testimony is crucial in sex abuse cases to testify about
medical evidence, or sexual abuse symptoms manifested. This
helps to determine if abuse occurred, but not necessarily who did it

b. Children describing sexual acts in a manner not age appropriate
is a big indicator of abuse
5. Hearsay is extremely important in sex abuse cases. In Nicole V., the
court allowed the childs hearsay statement through an adult because there
was corroboration by expert witness
6. MO and most states have made it easy for kids to testify under child
witness protection statutes permits court to allow victim child to testify
by videotape deposition or closed circuit tv to keep child away from D,
ONLY if it is shown that being in same room would traumatize child
a. MO also has statute about children testifying in sex abuse cases,
they are presumptively competent to testify
7. Repressed Memories of Sexual Abuse:
a. Legal issues revolve around statute of limitations. In most cases,
statute is tolled until plaintiff learns of or has reason to know of

J. Drug Babies

1. In re Dante M. most states dont support prosecution of mother who

uses drugs while pregnant and has an addicted child
a. Some assertions are that this would unfairly punish women, that
it targets poor, would deter addicts from obtaining prenatal care,
wouldnt deter drug use by an addict
b. Would Neglect be a better charge? Must show something more
than delivering a drug addicted baby to be successful in neglect,
2. Positive toxicology is one factor to be examined in an abuse or neglect
3. Fetus does not obtain rights under 14th amend until birth, is not a person
4. Addicted state of child is enough to begin the process of intervention
and attempts to protect the child from further instances of abuse

K. Duty to Investigate - Are authorities liable for injury to child once they are
aware of a risk to the child and do nothing to intervene?

1. Deshaney v. Winnebago Co. DSS (S Ct 1989) Child was permanently

injured under fathers care and DSS didnt do enough to intervene. Mom
and child sued claiming deprivation of liberty without due process under
14th amend
a. Held: Due Process requires there to be governmental action in
order for a duty to exist. Since officials did not act, there is a lack
of necessary state action required, agency not constitutionally
i. Distinguish ACTION from failure to act, not violation
b. Rule: Due Process does not impose an affirmative obligation on
states to protect persons, including children, from harm

2. Policy reasons for not enforcing a Constitutional duty
a. Paying judgments takes money away from agencys resources
b. Agency is wrong sometimes, this could lead to lots of lawsuits
c. Agencies try to avoid taking children from home, requires a
court order to return child, imposing liability may cause
interference w parents rights
*Ask was child in STATE custody when act occurred, or at home?
3. State Tort Liability Deshaney did not foreclose the possibility of state
tort liability for a child protective agency, but if the child is not in state
care (at home), there can be many barriers to this claim as it doesnt really
involve state action, but parents
a. Tort liability can be available if it is shown that special
relationship exists between state and child and if negligence occurs
(failure to rescue?)
b. Boland v. State child was hotlined but call was wrongly
routed, child was beaten and died. A special relationship between
govt and child was shown by child protection statutory scheme,
and that state actor was negligent, but there was no proximate
cause found
4. Immunity social service workers have immunity for wrongful removal
of child, at least according to the 3d Circuit
5. The Prosecutors Role Only a state can bring an action for termination
of parental rights, the range of authority varies from state to state
a. Prosecutors can be involved in criminal abuse/neglect and also
primarily civil delinquency proceedings and receive guidance from
DSS, whereas normally they have no guidance in cases
b. Prosecutors are taking more of a role, people thought that courts
werent being tough enough in delinquency cases and that DSS
wasnt doing enough for abuse and neglect

L. Reasonable Efforts - the state must make reasonable efforts to keep children
in their homes, and to reunify families when children were removed

1. Adoption Assistance and Child Welfare Act of 1980 required states to

keep children in their own homes whenever possible and to work more
aggressively to reunite if the child had been removed. If reunification
wasnt available within a reasonable time, child should be placed up for
2. Adoption and Safe Families Act of 1997 Congress felt states were
trying to hard to return children to unfit homes, and this act requires state
to meet more stringent time requirements for terminating parental rights.
Also, reasonable efforts may not be required in some cases (p 143 of supp)
3. Ask yourself:
a. Is the states interest sufficiently compelling to remove child?
b. What does the state have to do before it can bring TPR

c. TPR proceedings must consider whether agency efforts were
4. Reasonableness determination of whether state made reasonable
efforts can depend on several factors
a. Parents actions
b. Efforts at reunification
c. Family preservation
d. Rehabilitation
e. Counseling
f. Education, etc.
5. In the Interest of NMW a child was removed from a home that was
filthy and had cat feces in it constantly, did the state do enough before
removing child?
a. You could argue that mom was given a choice and could have
cleaned the house, but chose not to. However, does it matter if the
state paid for her to have a housekeeper? Wouldnt this be cheaper
than foster care? What if mom was depressed?
b. Fundamental right to family integrity demands that the state
interest be sufficiently compelling
c. When you terminate parental rights you must consider what
other alternatives might be available
*On appeal, there is a presumption that the agency acted correctly, but this is rebuttable

M. Termination of Parental Rights Due Process Protections for Parents

1. Termination of Parental Rights is a permanent, irrevocable severing of

parent/child relationship; normally a prelude to adoption
a. Consensual parent can agree to TPR
b. Non-consensual state brings abuse/neglect proceedings, moves
for TPR order, only enforceable if court orders
3. Lassiter v. DSS (sct1981) Court held, 5-4, that due process does not
require appointment of counsel for indigent parents in all termination
proceedings, trial court can determine on a case by case (by preponderance
of the evidence) basis using the Matthews v. Eldridge Test:
a. The private interests that are at stake parents important
b. The governments interest, and
c. The risk that procedures used will lead to erroneous decisions
2. Santosky v. Kramer (S Ct 1982) Supreme Court said that to terminate
parental rights, you must show CLEAR and CONVINCING EVIDENCE
(intermediate level), even though normally civil is preponderance of the
a. MO required this standard by statute even before S Ct said so
b. Indian Child Welfare Act requires beyond a reasonable doubt
3. MLB v. SLJ Right to Appeals. Can appeal be denied to parent who
cannot afford the proceedings?

a. NO, Equal Protection and Due Process require the state to
provide for appeal of TPR proceeding, even if parents cant pay
record prep fees. However, they may not have right to appointed
i. MO appoints all the time if parents want
b. State JO cant currently appeal denials of TPRs, but this may

N. Missouri TPR Statute and Grounds for Termination

1. MO 211.447 State must satisfy a best interests of the child standard

a. Abandonment 6 months or longer if child is over 1 year old,
under one year abandonment for 60 days, leaving child without
means for support
b. Abuse or Neglect as discussed before, one act may be
sufficient enough to terminate if serious, or a pattern of conduct
c. Statutory Time Limits out of home placement for 15 out of last
22 months can trigger start of TPR
Must move for TPR after this time UNLESS;
- Child is being cared for by a relative
- If state agency has documented in the case plan a
compelling reason why termination should not occur
(which can be that child is 14 or over and wishes for it not
to occur
- If the agency has not made reasonable efforts to reunify.
d. Transferred Intent - can apply to siblings
e. Presumptive grounds out of home placement for 15/22 months,
parent committed a sex crime against family member, child born of
rape, parent killed another family member
f. Mental illness or disability since the focus is on the condition
of the child, not parent, the ADA does not apply to termination
g. Failure to Support

2. All TPR Proceedings have Two Phases

a. Fact Finding Phase who did what to whom?
b. Dispositional phase whether to TPR or not, childs interests
3. Three Typical Challenges
a. Statutory asserts that state has failed to carry burden of proof
b. Procedural Due Process Void for vagueness, no sufficient
parenting standard that must be met is described
c. Substantive Due Process fundamental liberty right in raising
children can only be abridged if compelling interest and narrowly
tailored law
4. Best Interests of the Child - how to determine

a. Childs health and development have been or will be seriously
b. Parents are unable or unwilling to eliminate the harm
c. Court has considered alternative dispositions (temp placements)
c. Termination wont do more harm than good
5. Champagne v. Welfare Div TPR case. Emotional illness of parent if
severe enough and unremedied can be grounds alone for TPR. Failure of
parents to cooperate to reasonable reunification efforts are grounds
6. In re Jeffrey RL certain extreme acts of violence are enough for
immediate tpr
7. Adoption of BO before adoption occurs, there must be parental rights
of both natural parents terminated.
8. Social Race Class Ethnicity bias child poverty rate in America is 16-
20%, many of abusive families have poverty. Ethnicity is difficult, social
services may misperceive some cultural practices as abusive
9. Failure to Supervise the Child statutes intended to punish the parent
for the acts of child, or for allowing child to be abused, neglected,
delinquent, etc.
a. These cause due process and vicarious liability problems

NOTE: Challenges to Abuse/Neglect Laws:

a. Void for vagueness
1. person of normal intelligence wouldnt know what is proscribed
2. prospect of discriminatory police enforcement (too much discretion)
3. This is likely to be effective only when iffy disciplinary action is


A. Current Status of Foster Care

1. Foster care is a system by which child is placed in private homes until

they can be returned to their parents home or adopted
2. Homes/foster parents are licensed by the state, and foster parents
receive a small stipend
3. Foster care is replacing orphanages, it is less expensive, children
flourish in small family environments as opposed to institutional setting
4. A growing number of children are eligible for foster care, due to drug
epidemic and high rates of incarceration
5. There is a shortage of foster care families, the stipend is minimal,
children in DSS system often have special needs, and few families can
actually afford to be foster parents.
a. Also, many children remain in foster system for years after TPR
occurs, its harder to find adoptees for older or special needs

6. Voluntary Foster Care if parents put children in foster care voluntarily,
the tpr time tables still begin to run, and they must still satisfy the courts
that it is appropriate to remove child from foster care in order to return
them home
7. State Actors? Foster parents are NOT state actors for purpose of 1983
claims of deprivation of childs rights. They have qualified good faith
immunity from tort claims, also, immunized from negligence but not
intentional acts

B. Permanency Planning

1. AACWA said that states must try to reunite families with reasonable
efforts, except where not required because of childs safety. ASFA said
that there were time limits to reunification attempts
2. MO 210.710-720 the court must review status in 6 months of childs
placement in foster care. Must review every 6 months thereafter to
prevent extended stays.
a. Child has entered foster care on earlier of date of first judicial
finding of abuse, or 60 days after child was removed from home
b. DSS must file reports with the Court regarding the childs status
3. The Role of Court and Permanency Planning is to try to achieve
permanent homes for foster children, to prevent foster care and safely
reunite or get new permanent home as soon as possible if reunification
fails. Court is working together with agencies to achieve this goal

C. Rights of the Foster Parents, Childs Right to a Family

1. Smith v. OFFER (Sct1977) Does the foster family have rights when the
agency decides to take action regarding the foster child?
a. Held: The hearing that foster family received, after the child was
removed, did not violate a due process right. Court said foster
family had standing, but that it was limited.
b. Any liberty interest of foster family was created by state statute,
so state needs only provide very minimal due process procedures
c. Foster children cannot request a removal hearing, foster parents
d. Post OFFER attempts to create liberty interest in foster parents
and children under due process have generally failed
2. Precopio Family was found to not have substantive due process right
for custody of their foster daughter because they were only foster parents.
They wanted to adopt and DSS agency told them it was easier if they
became foster parents first then adopted, but child was still given back
3. In the interest of Ashley K child did not get first periodic review for 5
years while in foster care

4. Foster families do not have a liberty interest in maintaining the family
but are not viewed as merely a group of individuals. It has never been
clear what parameters are, but probably procedures similar to Smith
5. Adoption foster parent does not have absolute right to adopt their
foster child when child is placed for adoption, but about 50% of adoptions
are by the foster parent
a. Many states create statutory preference for foster parents
5. Tort Liability of Foster Parents many civil statutes impose liability on
parents to a certain dollar amount. Foster families are state licensees, not
parents, legal custody remains with state or natural parents so NO TORT
LIABILITY for foster child

D. Rights of Children to Services and Protection from Harm

1. Suter v. Artist M Agency failed to assign and replace caseworkers in a

prompt manner, leading to inappropriate and deficient services. Plaintiffs
challenged in a class action based on failure to meet reasonable efforts
a. Court refused to create a private right of action under the 1980
Child Welfare Act
b. Normally private rights are not implied in statutes, Court
examines congressional intent
2. In 1994 Congress amended federal law to limit Suter decision to
reasonable efforts provision, leading to Marisol v. Guiliani a class
action against NY for mishandling of cases and violation of constitutional
rights for failure to provide reasonable efforts to reunify families
a. Held: If state puts you in involuntary care, state has greater duty
to provide for you than if you are at home (foster care). Ct found
violation under AACWA and CAPTA
b. Courts are reluctant to draw analogies between foster children
and those in prisons
3. Lashawn v. Kelly DC foster care system placed into receivership due
to inability to fulfill minimum obligations. There are often suits brought
in regards to inadequate foster care, asking for injunctions or receivership

E. Liability for Harm

1. Kara B. v. Dane County Issue was whether state is liable for private
violence against a child in foster care? Is there a constitutional right to
protection by the agency while a child is in care?
a. Held: Court found a clearly established constitutional right
of children to be protected by the state from harm while in
care, so Ds qualified immunity claim failed
b. Duty of Care is Professional Judgment standard liability is
found if a reasonable professional would/should have known there
was danger to kid. This is a higher standard than the deliberate
indifference standard normally used in prisons

a. A few courts still apply lower deliberate indifference,

*What do you get from Due Process? If you are in foster care, due process does not
guarantee the best possible care, it guarantees a modest level of care and protection that is
consistent for the purposes for which you are being confined.

F. Types of Placements

1. In recent times, states have gone from primarily private aid to public
state aid, switching from almshouses and orphanages to foster care and
other options:
1. Foster Parents - Non-relative foster families
2. Kinship care child placed with relative
a. Can be good or bad, child might have more access to parent,
visitation might not be so strictly supervised
- Racial or Ethnic Matching most agencies try to match, but statutes
usually say race should not be a factor except for Indian Child Welfare Act
- Religious matching parents preferences are considered where
practicable, but often this is not practicable due to shortage of foster care
3. Institutional care for children whom foster care is not the best remedy,
those with several physical, mental, behavioral problems
4. Guardianships in the foster care system, foster parents have physical
custody while agency has legal custody. Guardianship is an option to
provide home for child in foster care who cannot be reunited with parents
and for whom adoption is inappropriate
a. Can be relative or foster parent or other suitable adult, who will
then have legal authority to make virtually all decisions on behalf
of child
b. This does not require TPR
c. However, this might not get any financial assistance for
guardian, though some states do provide subsidies


A. Abuse, Neglect, and Child Endangerment note that if a non-parent or non-

guardian abuses, this is always prosecuted, will never be a civil proceeding

1. There are two types of Criminal Statutes regarding abuse Child

Protection Criminal statutes:
a. General criminal statutes
b. Statutes specifically reaching only victims who are children.
2. Cmmwlth v. Ogin Is a child welfare statute that criminalizes conduct
that knowingly endangers welfare of child by violating duty of care,
protection or support too broad to be enforced?

a. Court says statute is given meaning by common sense of the
community, broad protective purpose for which the endangerment
statute was enacted, and affirms judgments
3. What Factors should be looked at when determining Civil v. Criminal?
a. Seriousness of alleged conduct serious injury to child?
b. State of mind of perpetrator
c. Amenability to treatment
d. Strength of proof burden of proof is higher in criminal than
e. Community outrage
f. Remedys likely effect on the child and family
g. Risk of future abuse or neglect
4. Note that criminal procedure could make parents less amenable to
treatment, more defensive, as it is more stigmatizing. Criminal
convictions can cause parent to lose employment opportunities, worsening
situation. However, remedies for civil proceeding can be even more
punitive when parents rights are terminated
5. Inter-Agency Cooperation civil and criminal dont always cooperate
together, possibly because juvenile confidentiality statutes say info should
be closed, workers get confused as to who can have access
6. State v. Crawford challenged endangerment statute because it is too
broad, void for vagueness
a. Statutes must not be so broad that they permit discriminatory
prosecution, must give fair warning
7. Parental privilege to reasonably discipline children is often defense used
7. Parental Liability Statutes place an affirmative duty on parents to
supervise and protect child, criminal statutes (rather than tort liability
discussed earlier). Gets rid of problems of vicarious liability for childs
action by making punishable a failure to supervise
- Is this a good policy?
a. Pros promotes responsibility, parents may supervise child
better, most kids are less likely to commit crime if they know
parents will be liable
b. Cons sends a bad message to child, child should be
accountable, can control delinquency better if child is punished
first occasion, rather than just given light probation, and for many
parents failure to supervise is due to inability to supervise
8. Cultural Defense arises more and more often as population becomes
more diverse. American law DOES NOT RECOGNIZE a cultural

B. Sexual Abuse

1. The Nature of the Problem sexual abuse definition is broad, but the
number of children who are abused is somewhere between 100-500,000

children every year. Sex abuse cases are also extremely unreported, so
these numbers are likely wrong.
-There are serious effects on children, PTSD, intergenerational abuse, this
has a tremendous psychological and/or physical effect on children. And,
for children that do come forward, they may have to testify and be
subjected to reliving the event, this is traumatic.
2. When are cases prosecuted, when are they pursued criminally, when are
they left alone?
a. The number of cases that are criminally prosecuted is less than
those dealt with civilly. Much sexual abuse does not leave physical
evidence, the child may not make a good witness, the parents may
not want the child to testify, etc. There are tactical decisions
regarding whether or not to prosecute, the burden of proof is much
3. Ferris v. Santa Clara County 20 year old guy had sex with 15 year old
girl. There is no constitutional right to have consensual sex, consent is
not a defense
4. Mistake of Age in most states, statutory rape and other sex crimes are
strict liability, mistake of age is not a defense, mens rea does not matter
a. About one-third of states permit mistake of age defense in some
5. Marriage Defense does not apply in forcible rape situations in most
states, including MO, but can be defense in underage sex (emancipated
children marrying)

C. Proving a sexual abuse case

1. Proving the Case can be very difficult, child is likely the only witness,
obtaining their testimony could be difficult, they often make poor
witnesses in court and are traumatized by reliving event
2. Competency of Child Witnesses - Many states, including MO, say those
younger children in sex abuse cases are presumptively competent,
regardless of age
a. Children must still be given an OATH of some kind to testify
3. Hearsay Rule (Idaho v. Wright) if a child is too traumatized to go to
court or is unable to testify, many states including MO have statutes
making statement regarding sex abuse admissible as a hearsay exception.
Must show child is unavailable
a. There must be some other indicia of reliability, like a videotape,
childs age, consistency of story, length of questioning (longer
less reliable, children are impressionable), EXPERT WITNESS
i. Majority of court says that reliability can be determined
solely on the questions asked and on the answers given
b. Interests at stake

i. Ds right to confront accuser
ii. Childs interests in not being traumatized
iii. Parents interests in protecting child from harm
iv. States interest in prosecuting and convicting sex
c. MO statute 491.075 says that statement made by child under 12
relating to sexual offense is admissible in evidence as hearsay
exception if:
i. Court finds in outside jury hearing that there are
sufficient indicia of reliability
ii. Child testifies at proceedings
iii. Child is unavailable as witness or
iv. Child is available but court finds that trauma would
d. Civil cases? While the hearsay rules apply to criminal cases,
many states including MO apply them in civil cases as well
(upheld by Mo S Ct)
4. Maryland v. Craig (S Ct 1990) Issue Does 6th amendment right to
confrontation prohibit a child from testifying by closed circuit tv?
a. Held: Statute must require there be a finding by the trial court
that if the child testified in front of D, serious significant trauma
would occur to child
b. Trauma must arise from presence of D, not just testifying
c. Practical matter prosecutor will have to get expert testimony
that child will be traumatized, but court will likely want to protect
d. Most courts say preponderance of evidence standard applies to
whether child will be traumatized
5. Ex parte videotape and closed circuit TV some state courts generally
allow by statute a child to be videotaped testifying regardless of showing
of trauma (KS). Federal legislation allows child to testify by two-way
closed circuit television if basis for this is proved by expert testimony
6. Closing the Courtroom trial court must determine on a case by case
basis whether closure of court is necessary to protect victim
7. If you were defending somebody accused of sexual abuse against child,
what would you ask?
a. Who was present, when interview was done, where was it done,
whether child would have been traumatized to testify in court,
proof of that
8. If you were prosecutor, might be a good idea to videotape the interview
with child to impress upon jury that child made statements of own free
*Note Expert witnesses are all over sexual abuse. They can testify to bolster hearsay
statement by child to determine if abuse occurred despite lack of physical evidence, they
can testify as to sexual abuse symptomology, Expert Testimony is necessary to show
trauma to child also

D. Prospective Restraints on the Offender
1. Sexual offenders have an extremely high rate of recidivism (esp
2. Civil Commitment attempt by the state to commit those who are
mentally ill after they have served their criminal sentence
3. Kansas v. Hendricks (Sct97) Supreme Court determined that a properly
drawn civil commitment statute is constitutional against substantive due
process, ex post facto and double jeopardy challenges
a. Is a Civil statute, allowing state to civilly commit persons who
due to a mental abnormality or a personality disorder are likely
to engage in future predatory acts of sexual violence
b. Must have finding of predisposition to violence/dangerousness
combined with mental illness
c. Avenues are available for review after confinement
d. Freedom from physical restraint is not an absolute right, the
states police powers of protecting health and safety justify
4. MO Civil Commitment Law
a. Requires an early diagnosis and treatment while incarcerated
b. AG assembles a team to determine if is a sexually violent
c. Prosecutorial team reviews this finding, if they agree they can
file with the court to have hearing to determine if civil
commitment should occur
d. Prisoner can ask for a trial after this hearing to appeal
e. Annual review is required, but prisoner can move for appeal at
any time
5. Community Notification Laws
a. Megans Law passed in NJ which required certain sexual
offenders to register addresses with local law enforcement, and
provided for dissemination to community of information about
registrants 1994 Federal law mandates registration requirements
for all persons released after act
b. Most states enacted similar legislation in the following years
c. 1994 Congress Jacob Wetterling Crimes against Children and
Sexually Violent Predator Act offered states federal money to
create a sex offender registration program (but didnt mandate
community notification)
d. 1996 Congressional Megans Law requires states also to enact
community notification provisions in order to receive federal
i. Now every state has registration, almost all have

e. MO our laws apply even to those found not guilty by reason of
insanity, and people are subject if they are convicted even in
another state
f. CT Dept of Public Safety v. Doe The Supreme Court recently
upheld state sexual offender registrations against constitutional

D. Child Pornography
1. Child Pornography is a form of Sexual Abuse is material depicting
sexual conduct by children of a certain age, often it is material that is
pornographic but would not be obscene if adults were pictured
2. New York v. Ferber (SCt1982) - State law prohibited persons from
knowingly promoting sexual performance of children by distributing
materials depicting acts. Statute operated even where sexual performance
was not found legally obscene (as obscenity is clearly not protected by the
a. Held: Child pornography is also outside realm of First amend
b. Concurrences say there are times when there are exceptions
(redeeming social value, such as medical textbook information)
c. Ferber mainly focused on the effect this would have on children,
but did discuss the dangers of distributing material because it
whets pedophiles appetite and endangers children
3. Child Pornography Prevention Act of 1996) Congress based this
mainly on effects on viewers, not children
4. Free Speech Coalition v. Reno (Sct2001) Ct held that the state does not
have compelling interest to prohibit non-obscene images not involving
actual children
a. Ferber is still good law, actual children are different

V. Regulation of Childrens Conduct

A. Protective Legislation states parens patria authority is grounded in the idea
that children must sometimes be protected from their own providence or
immaturity, or parents conduct

B. Child Labor Laws are an early example of this

1. Age classifications are only subject to rational basis review, so laws are
usually upheld against Equal Protection challenges
2. Punishment with one or two exceptions, the child cannot be punished
for working in violation of child labor laws, however, the employer and
possibly parent may be charged
3. Increased child poverty has not helped increased child labor rate.
Immigrant children are especially impacted

4. Professional Licensing statutes are a type of child labor regulation
law, states will generally regulate professional licensing and the age of the
5. Federal Enforcement Congress has federal power to legislate under
Fair Labor Standards Act.
a. Exempts children in agriculture, however, as do most state
statutes even though this is very dangerous for children
6. Rule if state and federal legislation differ, person is always subject to
the STRICTER standard in either federal or state
7. Work Permits most state child labor acts require children to secure
work permits or certificates, generally from school officials. This is added
protection for employers of children misrepresenting age to work
a. Some states criminalize employing minor without one, but it is
always a good idea to ask for one even if not statutorily required
8. Henderson v. Bear Child was electrocuted while working at a car
wash, parents wanted to bring this action to recover more than the
workers comp (which was only $4000). Court found that there was no
implied private cause of action under FLSA
a. Ct imposed lawyers fees on parents for bringing frivolous suit
9. Private suits under state tort law are generally barred by the exclusivity
of state Workers Compensation laws, which employers use to hide behind
because they usually have a set amount much lower than jury verdicts
a. Parents might recover on a negligence or products liability
10. Volunteering should really apply under legislation because it is not
work in such a sense, this impacts scouting, sports activities, etc.
a. Should children be able to do these activities just because they
arent getting paid, however?
11. International law many countries exploit children for labor, and
America employs quite a few of them
12. Enforcement is generally lax, agencies might respond to complaints
but dont go out looking so much. There doesnt seem to be any real
desire of society to remedy child labor abuses

C. Juvenile Curfews

1. Many states have legislation aimed at concern for minors health and
well-being, like access to firearms, pool halls, prohibitions against boxing,
tattoos, etc
2. Hutchins v. Dist of Columbia (1999) DC court upheld curfew statute
against childs due process fundamental right to movement challenge, and
against parents right to raise children challenge
a. Plurality of court determined children do not have such a
fundamental right to come and go at will
b. Ct also held that parents right to direct upbringing does not
extend to allowing children to run on streets at night unsupervised,

applying intermediate level scrutiny due to childrens unique need
for protection
c. Juveniles violating curfew could be made to do community
d. Parents violating the curfew (knowingly permitting or
insufficiently controlling) can be fined
e. Businesses violating curfew can be fined
3. The Supreme Court has not yet ruled on juvenile curfews, but has held
adult curfews constitutional only in emergencies like natural disasters, etc
4. Lower Courts are split on the constitutionality of juvenile curfews. In
especially high-crime or drug areas, public safety is a strong factor,
juvenile crime also
5. Adjudicated Juveniles appellate courts usually uphold curfews on
juveniles adjudicated as delinquents or sentenced as adults
a. Most crimes are committed right after school between 3 and 8,
6. Hypo attempt to draft a constitutional curfew law for your city:
a. Based on Hutchins, the statute must include statistical data
allowing a determination to be made that the curfew is
substantially related to an important governmental interest
b. Must establish interests in this particular city, not juveniles in
c. Its also a good idea to not make it too cumbersome to enforce
by police, or limit all exceptions for minors being out
(accompanied, with permission to work or volunteer, etc)
*Does MO have a curfew law? I couldnt find one, but then found a law that said curfew
violation would not be reported

D. Status Offenses

1. A status offense is conduct that is sanctionable only where the person

committing it is a juvenile, would not be offense if committed by adult
a. Three major ones are truancy, ungovernability, and runaway
b. Usually parent files a petition claiming child is PINS, MINS,
2. Juvenile Justice and Delinquency Prevention Act , as amended in 1980
provides funding for states for Delinquency prevention programs if the
state meets certain requirements, such as:
a. De-Institutionalization mandate children who are not criminal
wrongdoers may not be held in a detention center in which they
cannot leave. Originally, status offenses were covered by the
Delinquency definition
b. By decoupling status offense from delinquency, courts had more
discretion to act against these offenses than if they were held to
same due process standards as delinquency

i. However, this sometimes meant that courts could not deal
effectively with some of the children, like runaways
3. Ungovernability or Incorrigibility if child habitually refuses to
respond to reasonable commands by parent, is beyond control
4. In the Matter of Leif Z. Judge examined issues raised by parents and
determined sua sponte that the child was neglected, not incorrigible.
a. Some state courts are criticized for blaming parents in
ungovernability actions
b. Should ungovernability jurisdiction be abolished?
i. Some say yes, courts shouldnt be surrogate parents.
Some say these proceedings dont protect children because
courts are more apt to support parents and burden of proof
is reasonable vs. clear and convincing or beyond a
reasonable doubt
ii. Some say no, that this is a desperate measure by parents
to keep child from committing a serious crime
5. Truancy a significant number of truants graduate into delinquents,
supporting notion that this offense is beneficial to deter future conduct
a. Truancy may be result of things beyond control of child
b. Could be fear of school, depression, anxiety, learning disabilities
c. Is also often a sign of difficulty at home or with peers
d. Court must work hand in hand with school to determine cause

6. Runaways is a huge problem, more than a million children every year

run away to live on the streets
a. Might also be throwaway children also, could mask abuse and
b. Status offenders can no longer be detained in secure facilities
due to Deinstitutionalization mandate of the Juvenile Delinquency
c. Court may order a status offender not to run away, and then hold
them in contempt and detain them for this to prevent future
d. Problem putting status offenders in detention with serious
criminals, some of whom are violent
e. Since Deshaney, runaway and throwaway children do not have
any right to government provided care, govt does not have any
affirmative duty, but Congress still passed Runaway and Homeless
Youth Act to grant funding to states who have shelters
7. In the Matter of Jennifer G 12 year old runaway was asked by the
court to go home ten times, court finally held her in contempt
a. Ct never asked if something was wrong at home, however
b. Why didnt authorities investigate, or bring abuse/neglect act?
c. Courts dont lose federal funding for detaining those in contempt
8. Exception to Deinstitutionalization Mandate US Office of Juvenile
Justice and Delinquency Prevention says that it is okay to secure

placement of accused status offenders for a max of 24 hours, excluding
weekends or holidays, to permit ID, investigation, release to parents, or
transfer to non-secure facility. Once order is entered, however, child
cannot be detained
9. Questions to think about:
a. When authorities are not looking to the home for problems,
should you be able to lock up a child for short period of time?
b. Does deinstitutionalization allow authorities to punish alleged
criminals with lower burden of proof vis a vis status offense
c. Should status offenses be considered as a strike in three strike
laws when they are not actually crimes?
10. FUTURE: There are a couple states that have repealed the
delinquency status offense jurisdiction, but put delinquency back in status
offense definition
11. Should courts have jurisdiction over children who have done things
that wouldnt be criminal if done by adults?
a. Pros - People in favor of status offense behavior say that kids
need to be protected even when parents cant do it, via parens
b. Cons - Argument against this jurisdiction is that it vests
considerable discretion in Juvenile Courts, and this could be
misapplied against minority children, also labeling the kid status
offender as young might turn into self-fulfilling prophecy and
become criminal offenders later on
c. Trend in MO for about 15-20 years is to have courts work
closely with social service workers, as an important step to prevent
future delinquency

E. Alcohol Regulation

1. Historically, the drinking age was equated with age of majority, which
was 21. When states began to lower their age of majority, drinking ages
fell also (60s)
2. Many people use to equate voting with drinking if you could go to
war you should be able to vote and drink, so in the late 60s ages began to
be lowered
a. Caused blood borders kids crossing borders for states that
had lower ages, and crashing and dying on the way home
b. Statistics also showed that drinking and driving was causing
more accidents among under 21 crowd
3. In 1984, Congress enacted a highway bill withholding percentages of
otherwise allocable federal highway funds to states that didnt raise age to
4. In every state currently, the minimum age is 21- but juvenile alcoholism
is a growing problem, is underenforced and undiagnosed

5. Do Criminal and Civil Enforcement Work? Although minors cant
drink, they can possess alcohol at younger ages, so in some states
enforcing laws is difficult.
a. Why police dont enforce underage drinking laws: understaffed,
no real sanctions for minors, lack of detention facilities, it is
difficult to identify source of alcohol to make adults liable
b. Zero Tolerance Laws Congress encourages states to have laws
that can revoke the drivers license of juvenile who register more
than .02 BAC, are considered to be driving while under the
6. Dram Shop Laws, Social Host Liability in most states, dram shop
laws may provide a basis for a lawsuit, there is always the possibility of
losing liquor license or becoming the target of a sting operation this
would cause economic problems to business
a. These laws are meant to shift liability; speak to situation where a
person gets drunk and drives, or injures another
b. These statutes apply to juveniles mainly, may displace common
law general rule that social hosts and dram shop are usually not
c. A few states disallow these rules altogether, some disallow
unless provider knew or should have known person was underage
and intoxicated

F. Tobacco Regulation 90% of adults who smoke started as minors, if a child

has not smoked by 18, chances are that they never will

1. Congress passed a funding statute requiring all states to have 18 be the

least minimum age for purchasing tobacco.
a. MO used to have no statute, until 1989, for selling tobacco to
b. This applies to smokeless tobacco, also
c. Tobacco regulation is not as strict as alcohol, tobacco sellers
dont have to be licensed, cigarettes can be sold in vending

G. Driving Privileges

1. Motor vehicle accidents are leading cause of death for those 16-20
2. Graduated licensing due to risks, some states have graduated licensing
procedures, children can only get operators license after proceeding
through stages to help them drive safely
3. Parental Permission and Liability some states only allow minors to get
licenses only where a parent signs application as a sponsor, and assumes
joint and several liability with the minor
a. Parents can then request for minors license to be revoked, if

4. Abuse and lose some states have laws that aim to influence teens
behavior not related to driving in order for them to retain the privilege.
a. 15 states minors license subject to compulsory school
attendance, targeting truants or those expelled from school or who
have quit school without good cause
b. Other states target things such as drug or alcohol possession
(while driving or not), graffiti, tobacco purchase, firearms

F. Child Highway Safety federal highway funds may be withheld from states
for not having certain legislation

1. All states require that young children be restrained in child-restraint

system, usually children under 4
2. Many states have seatbelt laws, but most dont apply to back seat
passengers (who are generally children), some have truck exemptions
i. New Hampshire has no seat belt law whatsoever
3. Enforcement most states permit only secondary enforcement, i.e. you
cant pull somebody over for not having a seatbelt or not having child in
car seat, only if some other violation is going on
4. Cargo Areas MO now has statute saying children under 16 cant ride
in uncovered truck cargo areas. However, we have no bicycle helmet law

G. Gambling teenage gambling appears to be a growing problem, 6-12% of 13-

17 year olds have problems with it (less than adults)

1. Many states prohibit gambling by or with minors, including lottery

2. Some states even regulate raffles, or other games of chance

H. Firearms

1. Violent Crime Control and Law Enforcement Act of 1994 prohibits

persons under 18 from knowingly possessing handguns or ammunition for
use w/ handguns
a. Prohibits people from selling or transferring these weapons to
b. Certain exception apply relating to farming, hunting, other
specified acts
2. Other legislation prohibits firearm sale to juveniles in general, and those
from selling or transferring any firearm to juveniles, unless exceptions
a. States can prohibit adjudicated delinquents from all firearm
possession for a period of time, about of states do so

I. Other Harmful Conduct

1. Fireworks some states outlaw private possession entirely, some
prohibit sales to children below a certain age, some allow if accompanied
by parent
2. Explosives many states prohibit selling or providing of explosives to
3. Tattoos, piercings, pool halls Courts may restrict adults entry into
child areas

Theme #1 is that the initial conception of delinquency jurisdiction has undergone
changes. Theme #2 is how minorities are overrepresented at every stage. Arrest,
detention, transfer, etc.

A. Introduction

1. Originally, juvenile court was for rehabilitation and treatment (The

traditional rehabilitative model), acting as a quasi-welfare agency. The
focus of original juvenile court focused on how to save children from
turning into criminals, however the court felt that could be done
a. Lawyers were not involved very much, either as judges or
advocates until later years
2. Juvenile crime rate was highest in 1994, has declined ever since
a. Most who come in contact with juvenile justice system only do
so once
b. A small number of chronic offenders are committing the large
percentage of the crime (many youth gang members)
c. The majority are male, but female juvenile crime is increasing
d. Minorities are overrepresented at all stages in juvenile justice
3. Informal Procedures originally, procedure that applied to criminal
courts did not apply to juvenile court because the function of juv ct was to
rehabilitate, not punish The juvenile courts have become more like adult
a. Lately, there is a pressure to have individual accountability for
children and delinquency should be more punitive, even though
juvenile crime rate is actually on the decline but overblown in
media headlines and statistics

B. Scope of Delinquency Jurisdiction

1. Today, every state has a juvenile court to handle status offenses,

delinquency, adoption, abuse and neglect
2. Juvenile courts have exclusive original jurisdiction over claims that a
child has committed delinquent act (one that would be a crime if
committed by an adult)
3. Why have juvenile courts? Why take kids out of the adult system?

Delinquency jurisdiction is distinguished from Criminal justice in the
following ways
b. Individualized rehabilitation and treatment - the sentence can be
longer or shorter than what an adult would get for the same
offense, but whatever it takes to rehabilitate child (In re Gualt,
sometimes this could be severe)
c. Informal procedure gives more court discretion
d. Confidentiality expungement, when juvenile turns 18, record is
expunged, juvenile courts are closed to the public
e. Separate incapacitation we dont want to put young children
in jail with criminal adults
f. This Traditional Rehabilitative Model now has tensions with
accountability, safety, and punitive nature of the proceedings
4. Federal Delinquency Jurisdiction subject to Juvenile Delinquency Act,
limits federal delinquency jurisdiction to specific enumerated crimes
C. The Contours of Delinquency

1. The Infancy Defense States disagree as to whether this should be

applied or not, some recognize that juvenile proceedings are inherently
punitive and allow
a. Gammons v. Berlat issue was whether 13 year old could have
mens rea for sexual abuse, court would not apply infancy defense
b. Common law test:
- Children under 7 not responsible for criminal conduct
(unable to have requisite mens rea)
- Children 7-14 are presumptively not responsible,
c. States that use it look at factors to determine whether juvenile
knew of wrongfulness of acts (nature of crime, age, maturity, prior
conduct, etc)
2. Insanity Defense not available in all states in juvenile court, but
available in some courts
a. Some courts inherent in due process, must have this defense
b. Some courts no insanity defense because of rehabilitative

D. Transfer

1. Minimum and Maximum ages All states have laws defining

maximum age, about 15 have laws defining minimum age (usually ten).
a. MO juveniles are tried in adult court starting at age 17, most
states 18
i. Can NOT transfer under 12 except for most serious

2. Transfer statutes create guidelines for when juveniles can be tried in
adult court, all states have these laws. Questions arise as to who is best
person to make such a decision, judge, prosecutor, someone else?
a. Problem sometimes juries wont convict juveniles if they have
idea of what consequences so it would be better not to transfer to
make sure child is held accountable
3. Automatic transfer some states must transfer for certain crimes
a. Murder, manslaughter, kidnapping, rape, aggravated assault,
arson, firearm crimes are among those that might get automatic
b. This differs from statutory exclusion, where proceedings cant
even be started in juvenile court, has to be in adult
c. NOTE even in an auto transfer situation, there still must be
hearing and PROBABLE CAUSE found that juvenile committed
the offense
4. Discretionary transfer
a. MO and some states judges decides
b. Some other states prosecutor decides
c. Factors seriousness of charge, past record of juvenile
d. TRANSFER HEARING must occur, due process applies but not
rules of evidence, party wanting transfer must prove w/ clear &
convincing evidence
*So there are basically three types of transfer: automatic, judicial, and prosecutorial
5. State v. Mitchell 15 year old charged with robbery and murder,
juvenile ct cant keep him for more than 3 years until he reached age 18,
but adult court sentenced him to life imprisonment and could not consider
age as a mitigating factor
6. Blended Sentencing some states have extended juvenile jurisdictions,
can have combined juvenile and adult sentences
a. Adult sentence is conditional and only takes effect if juvenile
doesnt satisfactorily get rehabilitated during juvenile sentence

E. Delinquency Procedure
1. Three Phases once a child is reported to juvenile court
a. Intake preliminary screening, intake officer can divert case or
dispose of it completely or send case to court
b. Adjudication court hearing where delinquency is determine
c. Disposition court hearing where judge decides what to do after
delinquency is found


2. Arrest and Custody Procedures
a. Fingerprinting and photographing some state must have ct
b. MO dont need a court order to do so for serious crimes

3. Search and Seizure
a. NJ v. TLO (SCt85) Court held that principals search of students
purse was not 4th amend violation. Although the 4th amend does
apply to school officials, this was seen as reasonable and school
officials dont need a warrant to search
i. Legality does not depend on probable cause, but only
whether search was reasonable under the circumstances
c. Reasonableness
i. Was search justified at inception?
ii. Was it conducted in a manner reasonably related in scope
to circumstances which justified search?
i. Locker searches usually upheld, school property
ii. Metal detectors are ok, small intrusion
iii. Drug dog sniffs of items, not person, are ok
iv. Strip searches almost never ok
e. Exclusionary rule does not apply in school proceedings as they
are civil or administrative. Unsure about this in regards to other
juvenile proceedings
f. Vernonia School Dist v. Acton (SCt95) Individualized suspicion
not always necessary for search, need to balance school and
students interest (as long as search is otherwise reasonable)
4. Confession and Interrogation does Miranda apply to juveniles?
a. Fare v. Michael C (Sct66) Miranda does apply to juveniles
i. Must strictly adhere if child asks for lawyer
ii. Look at totality of circumstances to see if child invoked
right to remain silent
iii. Waiver must be voluntary, knowing and intelligent 7
states dont allow minors to waive rights
b. MO 299.059 cops must give Miranda warnings
d. Miranda does NOT apply in status offense cases, or to Terry stop

5. Intake and Diversion when child taken into detention, must go
through intake. The intake officer decides whether to divert case out of
system or send to judge
Most cases are diverted out, only 15% of cases have
adjudicatory hearings
b. Intake is discretionary, looking at age, record, remorse, family
c. More women are diverted than men
6. Preventive Detention when juvenile is held pre-adjudicatory hearing
a. Schall v. Martin (SCt84) Court held that pretrial detention didnt
violate 14th amendment due process, because it was not punishment
and the procedures prior to detention prevented erroneous
deprivations of liberty

b. Can only hold child if judge finds serious risk that juvenile
would commit another delinquent act before adjudicatory hearing
i. Or if fugitive, likely to flee, no parent or supervision
c. Juvenile must be brought before judge within 24 hours, and
there must be probable cause hearing within 3 days
d. There is generally no right to bail

7. The Adjudicatory Hearing
a. In re Gault (SCt67) Court said juvenile delinquency proceedings
had to give juveniles certain due process rights
* Important! Not only did this constitutionalize juvenile delinquency proceedings,
but it was fountainhead for the childrens rights movement
Notice of charges
Right to counsel
Ct keeps written record
Right to confrontation, cross-examination
Privilege against self-incrimination
c. NOTE Ct says these rights are available through due process
fundamental fairness, these are not criminal proceedings so 5th
and 6th amendments do not apply
d. Winship BEYOND REASONABLE DOUBT burden of proof
applies in juvenile delinquency proceedings
8. Confidentiality proceedings are closed to public because of
rehabilitative arm of juvenile court, records are sealed and often expunged
at a certain age.
a. There is no rule that media keep juveniles names silent, but they
often do unless its public knowledge anyway
b. Criticisms people cant see how well juvenile court works and
it has a bad reputation

9. Competency to participate in proceedings

a. Juveniles must be competent, but standard is very low, less is
required than in adult proceedings because of rehabilitative nature
of the hybrid civil/criminal proceedings
i. Can be incompetent due to mental immaturity, mental
illness, mental deficiency
b. NO right to jury trial in juvenile proceedings
c. S Court hasnt decided and lower courts are split on whether
juveniles get right to SPEEDY TRIAL
d. DOUBLE JEOPARDY DOES apply once court begins hearing

10. Disposition what happens to child, ct has broad discretion to
a. Right to treatment DUE PROCESS concerns guarantees
delinquents the right to reasonably safe conditions of confinement,
freedom from unreasonable bodily restraint, and minimally
adequate training to protect those interests
b. TEST whether state is providing nominally adequate or
reasonable services and training necessary to ensure protected
interest of delinquents
11. Appeal no constitutional right to appeal exists in juvenile
proceedings, but some statutes give right to appeal from a final judgment,
statistically appeals are quite rare in delinquency cases
a. High rates of waiver of counsel no doubt contribute to low level
of appeals

F. Juvenile Courts Future

1. The Juvenile Courts are here to stay, they have been here for 100 years,
and they will not be abolished although there are debates about this and
how fair the proceedings actually are to children
2. Many juvenile court judges say that they could be more effective if they
had the budget, however, the success stories outnumber the failures
3. MO is some sort of super-leader in juvenile justice, according to