Proposed Theoretical Framework



(I) Casting the Family
o
(A) Legal parentage

(1) Maternity

(2) Paternity

(3) Adoption

(4) Assisted Reproductive Technologies
o
(B) Legal partnerships
o
(C) Defining childhood

(1) Age-Based Liberty Limitations

(2) Status Offenses

(3) Emancipation and Marriage

(4) Juvenile Delinquency
(II) When Families Flip the Script
o
(A) Intended parentage
o
(B) De facto Parenthood
o
(C) Cultural and Racial Patterns in Family Structure
o
(D) Immigration
o
(E) Unwed parents
o
(F) Immigration
(III) Whose Line is it Anyway? (State, Parents, Children?)
o
(A) Preservation of Life
o
(B) Protection against harm
o
(C) Education

(1) Right to be Educated

(2) Right to Control Educational Content
o
(D) Expression

(1) Outside School Setting

(2) Inside School Setting
o
(E) Access

(1) Minor’s access to contraception and abortion
o
(F) Medical Decision Making

(1) Consent to treatment

(2) Treatment of Disabled Newborns

(3) Experimentation on Children

(4) Adolescent Healthcare
Casting the Family  Legal Parentage
 Who are the parents? How does the law determine who are the parents? How do you know when you are part of the family and
what are your responsibilities?
 What assemblage of people and nature of relationships among them constitute a “family”?
Legal Parentage: Biology-Based

Legal Framework for a Child’s Economic Relationship Within the Family
o
Common Law Background  Blackstone -
“The duty of parents to provide for the maintenance of their children, is a principle of natural law…”
“… there is an obligation on every man to provide for those descended from his loins…”

Duties of parents to children  have a natural duty to:

Duty to Support --- provide for the maintenance of their children (economical principal;
modern: child support)
o
Parental support obligation; state’s role to enforce the obligation.

Duty to Protect (modern: dependency system)

Duty to Educate --- giving their children an education suitable to their station in life.

Duties of child to parent  child takes care of parents when parents get older

Biological parents are the parents according to Blackstone.
PROBLEM
Marilyn and Robert were in a casual relationship for approximately 2 years, during which time they occasionally resided together.
During a period of separation, Marilyn became sexually involved with another man. Marilyn became pregnant. Because of the
timeframe of her relationships with each, Marilyn determined that either man could be the father. With Marilyn’s consent,
Robert files a paternity acknowledgment at the hospital and has his name entered on the child’s birth certificate. Marilyn and
Robert continued living together and co-parenting for about another year after which the relationship deteriorated, Robert
moved out, and Marilyn disallowed ongoing contact between Robert and the child.
1) Does Robert have a claim to custody? To visitation?

Has R performed the role in a way that the law is prepared to recognize? Duties? Obligations? Spent time with the
child? Formed a relationship with the child?
1
2) What is the effect on his claims of a paternity test excluding him as the child’s father?

Paternity acknowledgment would get you presumed putative father and most likely the ability to get into the court.
3) Is the time he spent residing with and parenting the child of any consequence?




The law generally respects and defaults to one mother and one father and a child or children.
In the case here, we do not have a legal father. We have an alleged genetic parent and an acknowledged parent.
NOTE: best interest comes in when we have a legal father.
Genetic father would have to become legitimate.
PROBLEM V. 2
Marilyn was in a committed relationship with Valerie for 2 years. Together, they decided to start a family and Marilyn was
impregnated with donor sperm. Marilyn, Valerie, and their daughter continued to live together until the child was 2, at which
time the relationship deteriorated, Valerie moved out, and Marilyn disallowed ongoing contact between Valerie and the child.
Valerie seeks a parentage declaration and a shared custody arrangement. What result?
Legal Parentage: Maternity

Begin with biological principles… The woman who gives birth to a child is the child’s first legal mother, with a presumptive
right to custody.

ALWAYS START WITH COMMON LAW PRINCIPLES – who would be the mother? Biological mother

Johnson v. Calvert (1993) 
o
Johnson agreed to be a gestational surrogate by giving birth to a child with whom she had no genetic
relationship and agreed to relinquish all parental rights to the Calverts’ upon birth of the child.
o
Woman did not give birth to the child but had a genetic relationship with the child because it was her ovum and
her husband’s sperm implanted in a surrogate mother
o
Gestational surrogate challenged husband and wife for parental rights.
o
“Passage of the [UPA] clearly was not motivated by the need to resolve surrogacy disputes, which were virtually
unknown in 1975. Yet it facially applies to any parentage determination, including the rare case in which a
child’s maternity is in issue.”
o
ISSUE: Whether a wife whose ovum was fertilized in vitro by her husband’s sperm and implanted in a surrogate
mother was the mother of the child so produced, rather than the surrogate.

The wife had not given birth to a child but has a genetic relationship because she supplied the ovum
used to impregnate the birth mother.
o
The court focused on intended parentage – in a gestational surrogacy contract, the natural mother of the child
is the woman whose intent was to raise the child as her own (here, Ms. Calvert).

Focused on the intent to procreate and to raise the child in order to identify the natural mother.
o
Court declined to recognize that 3 parents were possible – couldn’t vest rights in 3 parents.
o
Court recognized as parents the commissioning couple who provided the genetic material and intended to rear
the child, rather than the gestational surrogate who decided not to relinquish the child at birth.
NOTE: Is the surrogate married? Her marital status may raise parentage issues regarding who is the child’s legal father. That is, it
may be necessary to discuss and apply the presumption of legitimacy: The husband of a married woman is presumed to be the
father of her child. To rebut this presumption (in favor of the commissioning father), discuss the theory of “intent-based
parenthood” (Johnson v. Calvert).

Elisa B. v. Superior Court 
o
Determining maternity when there are two mothers involved.
o
2 women entered into a lesbian relationship; dissolution of the parental relationship – here, a same-sex
relationship
o
California Supreme Court held that under California’s state’s version of the Uniform Parentage Act, a child may
have 2 parents, both of whom are women.
o
A former partner in a lesbian relationship was obliged to pay child support where she had agreed to raise the
children, supported the birth mother’s artificial insemination using an anonymous donor, and received the
resulting twin children into her home and held them out as her own.
o
“As we shall explain, the Attorney General is correct that our statement in Johnson that a child can have ‘only
one natural mother’ does not mean that both Elisa and Emily cannot both be parents of the twins…”
o
“By recognizing the value of determining paternity, the Legislature implicitly recognized the value of having two
parents, rather than one, as a source of both emotional and financial support, especially when the
obligation to support the child would otherwise fall the to the public.”
o
Economic framework case and maternity case

Determining maternity when there are two mothers involved and whether Elisa is considered a legal
parent and has to pay child support once the partners separated.

You performed this role; now do you have an economic duty to continue supporting the child even
with the new given situations to Elisa?
o
Presumption that is created when you hold a child out as your own – this is a rebuttable presumption.
o
Court concludes basically from an equity justice fairness perspective that this case is not one to rebut the
presumed parentage.
2
De Facto Parenthood

Confer parental status based on people performing the role (step away from the idea of just biology)
Declining Motherhood

Safe Haven Laws  immunizing from maltreatment charges parents who anonymously drop off their newborn at a
designated facility, such as a hospital or firehouse.

In GA, the child can be 30 days old.
Legal Parentage: Paternity




“Becoming” a legal father at the hospital:
o
Martial Presumption 

Husband of biological mother (whether present at birth or not) is listed on the birth certificate.

Marital Presumption Georgia Case: Patton v. Vanterpool (302 GA. 253 (2017)

Ga. Code Ann. § 19-7-21 (West)
o
Putative Father

Unmarried, presumed father) is present at the birth AND signs a voluntary acknowledgment of
paternity.

Man believed to be the biological father of a child but has not yet been medically or legally declared to
be the father.

NOTE: In GA, an acknowledgment of paternity does NOT provide custody/visitation rights.
“Becoming” a legal father at the courthouse:
o
Legitimation proceeding:

Putative father files petition for paternity order

Based on genetic testing

Based on having acted as the child’s father for a significant period of time.

Mother or state files for child support from putative father, which begins legitimation proceedings.

Unmarried parents marry.
Various ways in which legal fatherhood can arise without genetic testing  (1) based on a man’s being married to the
mother at some point, (2) based on a man and the mother signing an acknowledgment, (3) based on a man’s living with
the child and holding the child out as his own, (4) based on a man’s admitting to paternity in court.
Michael H. v. Gerald D.  [rebuttable presumption of paternity based on marriage]
o
“…California law, like nature itself, makes not provision for dual fatherhood.”
o
“The logic of Justice Brennan’s [dissenting] position leads to the conclusion that if Michael had begotten
Victoria by rape, that fact would in no way affect his possession of a liberty interest in his relationship with her.
FN 4.
o
Woman gave birth to a child while she was married to M1 (Gerald) (who was listed as the father on the birth
certificate and held child out as his own).
o
After the child was born, woman informed M2(Michael) that he was the real father of the baby (who she had an
affair with). Mom and baby lived with Michael and he held the baby as his own and then they parted.
o
M2(Michael) filed a filiation action to establish paternity and sough visitation with the baby.
o
Mom and M1(Gerald) reconvened, and he intervened in the action, claiming, on the basis of the statutory
conclusive presumption, that he was the father.
o
Michael argued that his substantive due process rights were violated because he had established a parental
relationship that constituted a constitutionally protected liberty interest.

SC rejected his argument and concluded that the marital family is the unit to be protected for claims
of third parties (such as Michael), and the Cali legislature was free to select that entity as the one to
protect.
o
Both men held the child out as their own when each man was “with” the mother.
o
Case reveals there is a longstanding presumption of legitimacy (also called the marital presumption) that
treats a child born to a married woman as the offspring of the woman and her husband.

Comes from the idea of property law  illegitimate child (Bastards) cannot inherit and had a lack of
social status.
o
Traditionally, the presumption of legitimacy was conclusive if the spouses were cohabiting at the time of
conception and the husband was neither sterile nor impotent.

A majority of states now treat the presumption as rebuttable.
o
SCOTUS held that it is constitutional for a state to favor a husband (the presumed father) over a biological
father and deny standing to the biological father.

Upheld the rights of the marital father versus the genetic father.
The Parental Support Obligation: Who has the Legal Duty to Support?

Wallis v. Smith
o
“Therefore, this case boils down to whether sound public policy would permit our courts to require [mother] to
indemnify [putative father] for child support under the circumstances of this case [i.e., allegations of
contraceptive fraud].
o
Intimate, sexual relationship, agreed that their sexual intimacy would last only as long as Smith continued to
take her birth control pills because Wallis made clear he did not want to father a child.
o
Smith changed her mind and chose to stop taking the BC pills; she became pregnant and gave birth to a baby.
o
Explored the issue of a father’s obligation to pay child support when the mother has committed contraceptive
fraud.
3
Suit for damages based on a pregnancy resulting from the mother’s allegedly fraudulent inducement of the
pregnancy.
o
Public policy does not permit a court to require a mother to indemnify the father for child support.
o
Illustrates the general rule that the mother’s contraceptive fraud does not serve as a defense to a father’s support
obligation.
Harmon v. Department of Social Services 
o
Dissolution of the parental relationship – here a martial relationship
o

Legal Parentage: UPA (2017)
UPA Article 2  Parent-Child Relationship
Sec. 201  Establishment of Parent-Child Relationship.
A parent-child relationship is established between an individual and a child if:
(1) the individual gives birth to the child [, except as otherwise provided in [Article] 8];
Duties – financial, maintenance and support, education, safety and protection.
(2) there is a presumption under Section 204 of the individual’s parentage of the child, unless the presumption is overcome in a
judicial proceeding or a valid denial or parentage is made under [Article] 3;
(3) the individual is adjudicated a parent of the child under [Article] 6;
Legal proceeding – you can be adjudicated a parent of a child
Factors court considers: who is performing the roles, biology, holding out the child as their own.
(4) the individual adopts the child;
Adoption – legal construct about how we form family where biology is not necessarily a consideration.
(5) the individual acknowledges parentage of the child under [Article] 3, unless the acknowledgement is rescinded under Section
308 or successfully challenged under [Article] 3 or 6; [or]
Voluntary acknowledgment.
(6) the individual’s parentage of the child is established under [Article] 7 [; or
Assisted Reproductive Technologies – Article 7
NOTE: theory of intended parentage – analytical framework for determining who are the parents in ART or
Surrogacy fact patterns.
(7) the individual’s parentage of the child is established under [Article] 8].
Surrogacy – Article 8.
PROBLEM
(Legal Parentage: Paternity)
Suppose a woman who is legally married is intimate with a man other than her husband and becomes pregnant.





If the baby is born and mother and non-husband sign an acknowledgment of paternity, is it valid and effective?
o
Not effective because of marital presumption?
o
Acknowledgment valid unless court adjudicates and makes someone else the father.
o
According to UPA would stand, but it be overcome by an adjudication preceding or rescinded by the
adjudicatrices themselves
o
Considering: who is holding out the child as his own (performance of duty), they would look at paternity (cheek
swab – finding out who the actual father is by biology), child’s best interest
Does it (validity of paternity acknowledgment) matter whether the woman was still living with her husband at the time of
conception?
o
In regard to whether the acknowledgment of paternity would be valid and effective as to the non-husband
o
Whether or not he knew about the chance that he was not the biological father was he performing the duties?
Does it matter if the woman was separated from her husband at the time of the conception?
Does it matter whether the woman and her husband are still married at the time of the birth?
o
Marital presumption vs. acknowledgment of paternity
If the acknowledgment of paternity is valid, could the husband challenge it and get a court order for genetic testing?
o
He can bring a challenge – refer to UPA section 602.
Section 702. Parental Status of Donor
A donor is not a parent of a child conceived by assisted reproduction.




Does a sperm donor have any potential legal rights?
Anonymous donor vs. known donor?
Donor – allowing a couple/person to become a parent; the donor is not intending to be a parent
Every state law is going to disqualify a donor of having parental rights  by way of contract is a good way to do it.
4
Fatherhood by Surrogacy

Think  What are the surrogates’ intentions? NOT to parent the child

Various ways in which legal fatherhood can arise without genetic testing:
o
Based on a man’s being married to the mother at some point,
o
Based on a man and the mother signing an acknowledgment,
o
Based on a man’s living with the child and holding the child out as his own, or
o
Based on a man’s admitting to paternity in court.
Disestablishing Paternity

Methods:
o
Rescinding acknowledgment of paternity (common after genetic testing)
o
Alleging and proving fraud, duress, or material mistake of fact.
Equitable Estoppel

R.W.E. v. A.B.K. and M.K. 
o
Mother and Robert were an on and off couple. During a separation period, Mother became sexually involved
with another man (Father).
o
Robert filed an action to seek visitation; Father intervenes to set aside acknowledgment of paternity that Robert
signed at the hospital.
o
Paternity by estoppel  allowed  suggests that someone seeking to disestablish paternity can be estopped on
equitable grounds from challenging the presumed paternity.
o
Court does not allow mother’s boyfriend to use paternity by estoppel (holding out) doctrine offensively to assert
his paternity rights and deprive biological father of paternity rights

Biological father had been defrauded by omission

Weidman v. Weidman 
o
A (former) husband may be estopped from denying paternity of a child born during a marriage if either he or his
wife holds the child out to be the child of the marriage.
o
He is estopped from denying paternity of the child – husband is estopped from rebutting marital presumption
because he held child out as his own.
o
Based upon the evidence, we conclude that Robert did act as a parent to the child and did bond with the child.
Therefore, he is estopped from denying paternity of the child.

Parker v. Parker[limits on rebutting presumption]
o
A child was born out of a marriage. Ex-husband defrauded into thinking he was the father
o
Former wife represented to the former husband that he was the biological father, and the former husband had
no reason to suspect otherwise.
o
When child was 3.5 the parties entered into a marital settlement agreement – included specific $ the former
husband was to pay in child support.
o
“The presumption of legitimacy is a constitutional right afforded to every child born into a marriage granting the
child the right to remain legitimate, both legally and factually, if doing so is in the child’s best interest.”
o
The issue of paternity misrepresentation in marital dissolution proceedings is a matter of intrinsic fraud. It is
not extrinsic fraud, or a fraud upon the court, that can form the basis for relief from judgment more than a year
later.
o
1-year time limit applied despite the fraud: could have and should have requested paternity order at the time of
the divorce
BEFORE: focused on legal parentage (at birth primarily) operating on common law and biology…now onto adoption
Legal Parentage: Adoption
Legal Parentage: Adoption

Adoption  a legal construct; deconstructing one family and reconstructing another; sever all parent-child relationship
and duties and then recreate it with a new family; original birth certificate is then cancelled and sealed in terms of
adoption.

Deconstructing one family and reconstructing another; the creation of a new parent-child relationship and termination of
the legal rights and responsibilities of the biological parents

Adoption: The Prerequisite of Consent or Involuntary Termination of Parental Rights: There are two primary methods for
freeing a minor for adoption during the lives of the parents: (1) parental consent or (2) involuntary termination of parental
rights.

2 primary methods: eliminating the duties and responsibilities (maintenance, support, protection, education, financial)
o
Voluntary

Consent, meaning without fraud, duress or undue influence

Generally speaking, consent is required from:

Biological mother,

Biological father

The child (age varies)

In GA, if child is 14 and don’t want to be adopted, they cannot be adopted over their own objection
o
Involuntary

Termination of parental rights (abuse, neglect, dependency proceedings based on abuse or neglect)
Uniform Adoption Act (1994)
5
Consent for Stepparent Adoption

In re J.M.D. 
o
Stepfather petitioned to adopt the children without the consent of their biological father.
o
Whether a father’s consent is necessary in a stepparent adoption

Starting point is to look at the applicable statutes.
o
“The court may consider best interests of the child and the fitness of the nonconsenting parent in determining
whether a stepparent adoption should be granted.”

UAA Section 4-103(b)
o
An adoption by a stepparent does not affect:

the relationship between the adoptee and the adoptee's parent who is the adoptive stepparent's
spouse or deceased spouse;

an existing court order for visitation or communication with a minor adoptee by an individual related
to the adoptee through the parent who is the adoptive stepparent's spouse or deceased spouse;

the right of the adoptee or a descendant of the adoptee to inheritance or intestate succession through
or from the adoptee's former parent; or

A court order or agreement for visitation or communication with a minor adoptee which is approved
by the court...
Notes and Questions
(1) Death or divorce of custodial parent. What recourse, if any, might a stepparent have to protect a continued relationship with
the child under such circumstances?

The stepparent is not the legal parent (maybe a de facto parent), but if legal parent, then takes over the child.

What are the rights of legal parents? Support, protect and educate child = parental rights.

Could include access, visitation, custody
o
Visitation is a lower level, court ordered access to the kids on whatever basis granted
o
Custody – comes with all the decision-making rights of being a parent; as a de facto custodian can only make
a custody action to the court if you have custody already

Custody is a bigger consideration than visitation for the court.
(2) Grandparents rights. Suppose that after the stepparent adoption in J.M.D., the stepfather refuses to allow visitation with the
children by their paternal grandparents. What rights, if any, do the grandparents have?
Generally, in state laws, grandparents can bring action for visitation.
Generally, in state laws, grandparents can bring an action for visitation
(3) Support and inheritance rights. What are your thoughts about an automatic rule of inclusion for stepchildren in intestacy
schemes? What about preservation of some rights as between child and biological parent whose rights have been surrendered or
terminated?
(4) Open adoption.
Transparency and open communication, recognition that people know each other, less confidential as to the parties involved.
Objecting Unwed Fathers

Adoption and the Unwed Father
o
Stanley v. Illinois 

“…The State’s interest in caring for Stanley’s children is de minimus if Stanley is shown to be a fit
father. It insists on presuming rather than to prove Stanley’s unfitness solely because it is more
convenient to presume than to prove. Under the Due Process Clause that advantage is insufficient to
justify refusing a father a hearing when the issue at stake is the dismemberment of his family.”

Proclaimed as a vindication of the rights of unwed fathers.

An unwed father’s custodial right to his nonmarital child began to be recognized in a constitutional
sense in this case.

SCOTUS held that an unmarried father was entitled to a hearing on his fitness before his children
could be placed in state custody; he could not be deprived of his opportunity to demonstrate his
fitness to have custody of his nonmarital children without a due process hearing.

Court also held that the due process clause was violated by the automatic destruction of the custodial
relationship without giving the father any opportunity to present evidence regarding his fitness as a
parent.

Post-Stanley developments involving unmarried father consent:
o
Quilloin v. Walcott 

Involved a Georgia statute providing that only the mother of nonmarital child need consent to the
adoption of that child unless the father had legitimated the child by marriage and acknowledgment, or
by court order.

The biological father had never lived with the mother and the child, and he never legitimated the
child.

The child’s biological father was given notice of the adoption petition and participated in a hearing at
which he petitioned to be declared the child’s legitimate father and to be granted visitation.

SCOTUS granted the adoption on the ground that it was in the child’s best interests.
6
SCOTUS held that a putative father who, for eleven years, had not attempted to establish any
relationship with his nonmarital child, could not thereafter exercise any veto power over the child’s
subsequent adoption by the mother’s husband.

Court used the child’s best interest test, rather than the parental fitness test.

Implied that the extent of an unwed father’s rights depended on the nature of his relationship with his
child(ren).

Court addressed an unwed father’s right in the adoption context, ruling on the constitutionality of a
GA statute that authorized adoption of a child born out of wedlock over the objection of the natural
father.

When there is no significant commitment on the part of the biological father to a child born out of
wedlock, the state is not required to find anything more than the adoption, and denial of
legitimization, are in the best interest of the child.
o
Caban v. Mohammed 

“No showing has been made that the different treatment afforded unmarried fathers and unmarried
mother [..] bears a substantial relationship to the proclaimed interest of the state in promoting the
adoption of illegitimate children.”

NY statute challenged here provided that a nonmarital child could be adopted with the consent of the
mother alone, without the necessity for the biological father’s consent.

Court held NY statute invalid on equal protection grounds because it precluded an unwed
father from adopting his own nonmarital children, or from vetoing the adoption of his
nonmartial children by a third party.

SCOTUS held that the statutory distinction between the rights of mothers and fathers of nonmartial
children violated the Equal Protection Clause.

Court focused on the nature of the parent-child relationship and required certain indicia of
parenthood to extend constitutional protection to the unwed father.

Affirmed that there must be an ongoing relationship between the unwed father and the
nonmarital child in order for the father to exercise his adoption or veto rights.
o
Lehr v. Robertson 

“’The biological connection’ is itself a relationship that creates a protected interest. Thus the ‘nature’
of the interest is the parent-child relationship; how well-developed that relationship has become goes
to its ‘weight’, not its ‘nature.’”

When an unwed father demonstrates a full commitment to the responsibilities of parenthood by
“coming forward to participate in the rearing of his child,” Caban, his interest in personal contact
with the child acquires substantial protection under the due process clause. At that point it may be
said that he “acts as a father toward his children.”

‘But the mere existence of a biological link does not merit equivalent constitutional protection…”

Case appears to mean that the biological relationship only gives the father an opportunity to
obtain a constitutionally protected right, but does not address what the biological father
must do to exercise that opportunity.

Whether NY has sufficiently protected an unmarried father’s inchoate relationship with a child whom
he has never supported and rarely seen in the two years since birth violates DP or EP?

No Due Process or Equal Protection violation

The father did not fulfill duty, so it is ok for the state to withhold from the father.

Court held that there is a finite time during which the putative father must establish an “opportunity
interest” in his nonmarital child.

If he fails to establish this interest before a third party begins to legalize a new father-child
relationship, then the putative father may lose any legal rights he may have in his
nonmarital child.
Putative Farther Registry
o
A very common method states use to try to protect the rights of an unmarried father is to establish a putativefather-registry.
o
A putative father is thee alleged or reputed father of a child; the man believed to be the biological father of a
child but who has not yet been medically or legally declared to be the father.

Also called the alleged father or reputed father.
o
He will be given notice of the proposed adoption of his child (which would include the proposed termination of
his parental rights) if he registers with the putative father registry within a specific time frame.
o
By registering, he announces his intent to assert his rights and responsibilities as a parent.
o
The failure to register may preclude his right to notice of the adoption proceeding.
“Opportunity Interest”

Unknown whereabouts of the mother

False information that baby died

Misrepresentation of biological father

Ignorance of pregnancy

Father’s whereabouts unknown

Newborn surrender



NOTE: All 4 cases are important 

The unwed father is entitled to constitutional protection of his parental rights so long as he is willing to accept the
responsibilities of parenthood. The extent of this constitutional protection varies according to the degree to which the
unwed father manifests a willingness to assume a custodial, personal, or financial relationship with his child. Although
7

an unwed father has the right to establish a constitutionally protected relationship with his child, he may lose tis right
by his failure to act promptly.
The father’s biological relationship with the child provides him with a constitutionally protected opportunity interest
in establishing a parent-child relationship. Biological fathers who establish parent-child relationships and accept
some measure or responsibility are entitled to notice of adoption proceedings and the right to give or withhold their
consent.
Adoption: Objecting Mother

Johnson v. Hauck 
o
Ga. Code Ann. § 19-8-10 (b)

Surrender of rights of a parent pursuant to subsection (a) of Code Section 19-8-6 or 19-8-7 shall not
be required as a prerequisite to the filing of a petition for adoption of a child of that parent pursuant
to Code Section 19-8-13, if that parent, for a period of one year or longer immediately prior to filing of
the petition for adoption, without justifiable cause, has significantly failed:

(1) to communicate or to make a bona fide attempt to communicate with that child in a
meaningful, supportive, parental manner; or

(2) to provide for the care and support of that child as required by law or judicial decree,
and the court is of the opinion that the adoption is for the best interests of that child.






Additional Considerations
o
NOTE: Georgia Statute of Repose §19-8-18

Works kind of like a SOL, SOR is a limitation on when a cause of action can arise (can’t challenge it
after 6 months – like fraud, duress, etc.)
Remedy of “wrongful adoption”  recourse when the adoption does not go as planned
o
In re Lisa Diane G. 

The adoptive parents petitioned to have the adoption of their adoptive daughter set aside on the basis
of misrepresentation.
o
Mohr v. Commonwealth 

"To avoid liability for “wrongful adoption” based on negligence, an agency need only use due care to
ensure that it fully and adequately discloses information about a child's background so as not to
mislead potential adoptive parents."

"Furthermore, “the common law notion of foreseeability as found in the concepts of duty and
proximate cause” prevents the tort of negligent “wrongful adoption” from making adoption agencies
guarantors of children's future health."
o
Ross v. Louise Wise Servs., Inc. 

“In this case, the Agency has conceded that it intentionally misrepresented facts about Anthony's
background. We are troubled by such concealment, and sympathetic to the suffering plaintiffs have
endured. They have presented sufficient triable facts to proceed on their fraud claim for compensatory
damages."

"Because we cannot conclude from the record that the initial concealment was motivated by malice so
as to warrant punitive damages, or that these damages would deter future reprehensible conduct, we
limit plaintiffs' potential recovery to compensatory damages."
Adopted Children’s Right to Learn Their Origin
Relevance of Sexual Orientation to Adoption
o
What relevance, if any, should be given to the role of sexual orientation in adoption decision making?
o
Florida Department of Children and Families v. Adoption of X.X.G. 

Appeal of a final judgment of adoption, under which F.G. became the adoptive father of two boys

Whether the adoption should be denied because F.G. is a homosexual?
Child Welfare Provider Inclusion Acts
Relevance of Race to Adoption
o
Adoption of Vito 

“At a pragmatic level, unnecessary involvement of the courts in long-term, wide-ranging monitoring
and enforcement of the numerous postadoption contract arrangements could result from too ready an
application of the court’s equitable power to issues contact orders.”
o
Palmore v. Sidoti 

Considering race as sole basis for denial of custody is violative of Equal Protection.

This case focuses on child custody and it is still not sure the affect in regards to adoption

Supreme Court held that consideration of race as the sole basis for the denial of custody to a
Caucasian mother married to an African-American man violates equal protection.

Race may not be the determinative factor in awarding custody of children but may be a factor in the
decision.

Married Caucasian couple, then they divorced. Caucasian mother cohabited and married an African
American man. Father petitioned to modify custody based on changed circumstances (who the
mother was now living with).

Court concluded that the effects of racial prejudice would not justify a racial classification removing a
child from a natural mother found to be an appropriate custodian.

This case addresses race in custody decision making, but has implications for the consideration of
race in adoption.
8
Legal Parentage: Assisted Reproductive Technologies (ART)
NOTE: Traditionally, the law identified a child’s parents based on biology, marriage to the child’s mother, and adoption.
However, advances in reproductive techniques now enable children to come into families in a variety of innovative ways, such as
surrogacy and anonymous donation of genetic material.
ART: Embryo Disputes

Reproductive Disputes over “Potential” Parentage (Embryo Disputes)
o
Reber v. Reiss 

Post-dissolution disputes over “ownership” of embryos

In determining who should receive these pre-embryos, court looks at other jurisdiction approaches:

(1) Contract approach;

(2) Contemporaneous mutual consent approach;

(3) Balancing approach – interests and equities that pertain to each party

Marital property concept – equitable distribution

Wife gets the embryos.

Court held that when there was no specific agreement regarding the disposition of frozen pre-embryos
created by the husband and wife upon divorce, the husband’s interest in avoiding procreation was
outweighed by the wife’s interest in using the embryos.

Court’s decision turned upon the fact that the wife was unable to have children by other means and
was willing to fully support the children financially, while still allowing the husband to have parental
rights and visitation.

Before this case: Most of the time the courts would conclude that the non-objecting parent could have
the embryo – aka against forced parenthood (safeguard for husband and the duties that attach to
parenthood)

Status of Embryo: Property or Person?
PROBLEM
If you were a legislator…
What specific provisions would you propose regarding the status of embryos and the disposition of embryos upon divorce?
How would you accommodate the conflicting interests at stake?
What factors should be relevant in the resolution of the conflict?
ART: Embryo Adoption
Art: “Second Parents”

Who is a Parent? Lesbian Mother Disputes  Recognizing the Legal Rights of the “Second Parent”
o
Frazier v. Goudschaal

Applying statutory parentage presumption to nonbiological co-parent of child conceived by artificial
insemination during nonmarital relationship.

“. . . But what Goudshaal overlooks is the fact that she exercised her due process right to decide upon
the care, custody, and control of her children and asserted her preference as a parent when she
entered into the co-parenting agreement with Frazier.”

“Where two fit parents knowingly, intelligently, and voluntarily waive their parental preference by
entering into a custody agreement with a third party that is in the best interests of the child, the court
will enforce the agreement rather than second guess the parents’ decision.”

Co-parenting plan – set the terms over who is going to take care of what, who is going to pay for what,
how we are going to go about raising the child, etc.

Suing to enforce the co-parenting agreement against the biological mother.

Biological mother had exercised her due process rights by entering into this agreement, and now she
cannot say this is a violation.

Who is a Parent? Lesbian Mother Disputes  Identifying the “Biological” Mother
o
T.M.H. v. D.M.T. 

Identifying the “biological” mother

“Parental rights, which include the love and affection an individual has for his or her child, transcend
the relationship between two consenting adults…”

Issue to be resolved is whether two women involved in a lesbian relationship for several years share
parental rights and responsibilities to a child born out of that relationship.

Involved two women in a same-sex partnership who conceived a child by one partner donating her
egg and the other partner receiving that egg through IVF treatments so as to be the gestational
mother.

Relationship deteriorated, gestational mother fled the country with the child and the biological
mother filed a petition seeking return of the child and a declaration of maternity.

Methods of Establishing Parentage (Of Children Conceived VIA ART)
Traditional Methods of Establishing Parentage
o
Marriage
o
Adoption
9

New Methods of Establishing Parentage
o
Statute (E.g. UPA)
o
Contract
o
Common law theories
o
Genetics
o
Intent based parentage
o
Best interest approach
Now adding in more people to consideration of parents versus just 2 people

Who Is a Parent? Surrogate Parenting Disputes
o
In re. Baby M.

“The contract’s basic premise, that the natural parents can decide in advance of birth which one is to
have custody of the child, bears no relationship to the settled law that the child’s best interests shall
determine custody.”

Surrogate motherhood – one surrogate mother refused to relinquish the infant to the commissioning
couple.

Stern entered into a formal surrogacy contract with Mary Beth and Mary Beth’s husband, in which
Mary Beth agreed to be artificially inseminated with Stern’s semen.

Mary Beth agreed not to form a parent-child relationship with the child, to surrender custody to Stern
immediately upon the child’s birth, and to terminate her own parental rights.

After the baby was born, Mary Beth did not want to terminate her own parental rights so Stern
brought suit to enforce the surrogacy contract and to compel Mary Beth to surrender the baby to
Stern.

Was the contract enforceable?

Court said contract was not enforceable (conflicted with some state statutes (baby selling), conflicted
with public policy, and the couple didn’t have any protection with constitutional right of procreation.

Court didn’t enforce the termination and relinquishment of rights, but did award visitation to mother,
and custody to commissioning couple.

Got the point through the best interest of the child standard --- normal statutory standard used to
determine custody, used in child welfare cases, divorce, etc.
o
In re Paternity of F.T.R. 

“When the parties do not agree, however, the courts are forced to confront issues of the most difficult
nature.”

“In this case there is no question that the [Parentage Agreement] contains the essential elements of a
contract.”

After birth the child went home with the commission/intended couple, but birth mother wouldn’t
relinquish her rights.

Court looked to statutory law (custody issues are highly statutory) – it doesn’t fit into any Wisconsin
statute scheme, so court turns to contract law and public policy.

Is there a K? Court says yes. (offer, acceptance, consideration)

Any defenses to enforceability? Court says no.

Discusses public policy – court says that the interests supporting enforcement of the PA are more
compelling than the interests against enforcement  creates a more stable result and permanence in
the family relationships because it allows the intended parents to plan for the arrival of their child,
reinforces the expectations of all parties to the agreement, and reduces contentious litigation that
could drag on for several years of the child’s life (honor the agreements).

Found no public policy statement contrary to the enforcement of the PA agreement.

Says it is mostly enforceable – parental rights are one of the most constitutionally protected
fundamental rights – can only be voluntarily relinquished rights and if there is some reason to suggest
the parent is unfit or there is harm to the child.  None of the statutory grounds are presented, we
can’t force her to terminate, so they pull out the piece and let the rest of the contract remain for
determining where the child should go for purposes of custody and visitation.

Concurring opinion --
"I do not join the majority opinion because I disagree with the majority opinion's
authorization of people to contract out of the State's traditional, statutory oversight role in
the protection of children."

"The majority opinion departs from the legislative mandate [to consider all domestic issues
relative to the best interest of the child standard]. Yet the majority opinion does not explain
why a child born of alternative reproductive methods should have different rights and be
treated differently under the custody and placement statutes than any other child."
o
Breach of contract scenarios

By the Surrogate

In re. Baby M.
o
Holds that surrogacy contracts are unenforceable

As violative of the laws and public policy of the state.
o
Court determined that the K conflicts with prohibitions against baby selling and
with public policy.
o
Surrogate mother refused to relinquish the infant to the commissioning couple.

J.F. v. D.B.

By the Commissioning parent(s)
10

Stiver v. Parker 
Different Theories to Decide Surrogacy Disputes



Intent-based parentage  the parties’ intentions at the time of formation of the surrogacy contract should
presumptively determine legal parenthood.
Uniform Parentage Ace
Common law approaches: de facto parenthood
Obstacles to Parentage Determinations


Presumption of legitimacy
Adoption consent statutes
ART: How Many parents? Sperm Donor’s Rights

A.A.B. v. B.O.C., Jr. 
o
“Following the breakup, A.A.B. [biological mother] and S.C. [biological mother’s ex-boyfriend] shared rotating
custody of the child; however, the relationship deteriorated and A.A.B. refused to allow S.C. to have any further
contract with the child.”
o
Whether the statute applies to deny parental rights to a sperm donor whose identity is known to the biological
mother and where insemination occurs outside of a laboratory setting, but not in the “old-fashioned way.”
o
Statute precluded known-donor from asserting parentage rights.
o
Is B.O.C. (biological father) just a donor does he have parental rights?
o
No other case that answers this question: DIY (do it yourself) insemination constitute donor insemination?
o
The DIY does not apply to him  he is a sperm donor and therefore has no parental rights
ART: Other Considerations: A Child’s Inheritance Rights

Astrue v. Capato 
o
“No showing has been made the posthumously conceived children share the characteristics that prompted our
skepticism of classifications disadvantaging children of unwed parents.”
o
Husband was diagnosed with cancer, couple decided to have his sperm preserved to have children later.
o
Explores the extent of posthumously conceived child’s inheritance rights in the context of government benefits.
o
SCOTUS held that a child conceived after the genetic father’s death, through sperm collected prior to his death,
was not eligible to receive Social Security Survivor Benefits.
o
Court looks to purpose of Social Security Act – not about the inheritance of insurance benefits after parent’s
death; purpose of these provisions is to give the family of an insured person the kind of support they would have
and did have when the person was alive.
o
The child was not alive when the parent was alive so not getting the benefits; conceived after the father died.
o
A child conceived after the genetic father’s death, through sperm collected prior to his death, was not eligible to
receive Social Security Survivor benefits.
Casting the Family  Legal Partnership
Marriage

Legal Partnership: Constitutional Challenges to Marriage Limitation
o
Through substantial case law, the Supreme Court has described marriage as a “fundamental constitutional right
subject to strict judicial scrutiny, and the state would have the burden of demonstrating a compelling state
interest in order to prohibit such marriages…”







Reynolds v. United States (1879)
“Upholding Congress’s power to prohibit polygamy, noting that “[m]arriage, while from its very nature a sacred
obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.”
o
Can’t do anything about people believing it, but you can regulate the practice.
Concerned about social control here
Loving v. Virginia (1967)
“[T]he freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by
the State.”
The court found unconstitutional Virginia’s miscegenation statute prohibiting interracial marriages, concluding that
“restricting the freedom to marry solely because of racial classification violates the central meaning of the Equal
Protection Clause”
The right to marry is a constitutionally protected fundamental right.
Whose right is marriage? And what are the boundaries around it?
o
Individually held right that should be universally available.
Zablocki v. Redhail (1978)
Holding a private statute restricting marriage for individuals who were delinquent on child support unconstitutional
and noting that “[s]ince the support obligation is the same whether the child is born in or out of wedlock, the net result
11

of preventing the marriage is simply more illegitimate children.”
“It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to
procreation, childbirth, childrearing, and family relationships. ...it would make little sense to recognize a right of
privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is
the foundation of the family in our society. The woman whom appellee desired to marry had a fundamental right to
seek an abortion of their expected child, or to bring the child into life to suffer the myriad social, if not economic,
disabilities that the status of illegitimacy brings, Surely, a decision to marry and raise the child in a traditional family
setting must receive equivalent protection. And, if appellee's right to procreate means anything at all, it must imply
some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.”
Loving and Zablocki  SCOTUS reiterated that the right to marry is a fundamental constitutional right subject to strict
judicial scrutiny, and the state would have the burden of demonstrating a compelling state interest in order to prohibit such
marriages.








Turner v. Safley (1987)
Right to marry for incarcerated persons
Declaring that incarcerated individuals still have a constitutionally protected right to enter into marriage.
Losing the right to procreate as you are incarcerated
Why did this matter in Obergefell?
o
Right to marry and right to procreate (one being a necessary requisite to the other) starts to fall apart when
we start to introduce medical technologies (biology may be irrelevant)
A state regulation barring all inmate marriages was not reasonably related to the state’s interests.
The state regulation barred marriages of inmates except when there were compelling reasons such as pregnancy or a
nonmarital child to be born, and then only with the warden’s permission, which permission was usually given only in
the prospect of illegitimacy.
Declaring that incarcerated individuals still have a constitutionally protected right to enter into marriage.
Legal Partnership: Pre-Obergefell
o
1972: SCOTUS dismisses Baker v. Nelson, a Minnesota case filed by a gay couple seeking to marry, “for want
of a substantial federal question.”
o
States regulate the “marriage environment”
o
1986: Bowers v. Hardwick – SCOTUS upholds the constitutionality of a GA sodomy law. The divided Court
found that there was no constitutional protection for acts of sodomy, and that states could outlaw those
practices.

The court held that the right of privacy did not invalidate state criminal statutes prohibiting sodomy
o
May 1996: Romer v. Evans – SCOTUS holds that Amendment 2 of the Colorado State Constitution violated
the equal protection clause because it singled out homosexual and bisexual persons, imposing on them a broad
disability by denying them the right to seek and receive specific legal protection from discrimination.
o
September 1996: President Clinton signs the Defense of Marriage Act (DOMA) banning deferral recognition of
same sex marriage and defining marriage as “a legal union between one man and one woman as husband and
wife.”
o
2003: Lawrence v. Texas – overturned Bowers v. Hardwick – SCOTUS strikes down state laws
criminalizing private homosexual activity, finding that such laws violate the Due Process Clause of the 5th
Amendment [RIGHT TO PRIVACY]  protecting the individual’s liberty to engage in intimate personal
relationships.
o
2004: Proposed constitutional amendment to ban same-sex marriage fail in United States Congress.
o
2009: president Obama signs a memorandum granting some benefits to same-sex partners of federal
employees.
o
June 26, 2013:

United States v. Windsor – SCOTUS rules that section 3 of DOMA (defining marriage as a “legal
union between one man and one woman”) imposes a “disadvantage, a separate status, and so a
stigma” on same sex couples in violation of the 5th Amendment’s guarantee of equal protection.
o
Also on June 26, 2013:

In Hollingsworth v. Perry SCOTUS ruled that the petitioners lacked standing to appeal the
district court’s order striking down Proposition 8, California’s voter-approved same-sex marriage ban.
o
Obergefell v. Hodges (2015) 

"Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect
and need for its privileges and responsibilities. And their immutable nature dictates that same-sex
marriage is their only real path to this profound commitment."

The Fourth Amendment requires both marriage licensing and recognition for same-sex couples.

Argued on the basis of policy – asking court to extend public policy

Protections of marriage in terms of privacy and intimacy of procreation, children need you to validate
marriage, right to marriage

What has history told us about this being a state law issue?

Expanding or altering definition of marriage altogether?

Groups of same sex couples sued state officials in some states to challenge the states bans and refusal
to recognize same sex marriages that occurred in other jurisdictions.

The 14th Amendment requires both marriage licensing and recognition for same-sex couples.

The denial amounted to a constitutional violation of due process and equal protection under the 14 th
Amendment.
12
Casting the Family  Defining Childhood
State Enforced Limitations on the Liberty of Minors
 Age-Based Liberty Limitations

What is a “Child”?
PROBLEM
Puerto Rico maintains its minimum legal drinking age of 18 despite the federal government’s law that will reduce the amount of
federal funding for surface transportation unless the U.S. territory raises its drinking age to 21. You are the staff director of a
federal c om mission charged with preparing a report that addresses the question of whether the laws should be revised. The
commission’s charge is to make recommendations on the following issues: (1) Should age-based limitations relating to drinking
be continued? (2) If so, should the legal drinking age be raised from 18 to 21? (3) What are the most appropriate means of
enforcing age-based limitations on drinking? (4) What exceptions, if any, should be in the new law? (5) What role should
parents have?
Your first task it to prepare a research agenda for the commission. Those w ho are in favor of raising the drinking age rely
basically on 4 arguments: (1) Drinking by minors can lead to increases in juvenile crime and other antisocial behavior; (2)
Raising the drinking age to 21 prevents children younger than 18 from experimenting with alcohol and may reduce the incidence
of adult alcoholism; (3) Raising the drinking age will reduce the problems of teenage DUI; and (4) Drinking is an immoral or
socially undesirable activity for adults, and raising the drinking age will emphasize the undesirability of this activity for young
people. You should suggest, as part of the commission’s agenda, what empirical research might bear on these arguments. You
should also spell out what arguments (other than financial) might be made in favor of changing the law and suggest how those
arguments might best be evaluated.
Defining Childhood: Status Offenses



Sets of behavior and circumstances in which children can only be accused of violating the law.
Truancy, children in need of supervision, balance of interests between children’s rights, parents’ rights and state’s interest.
An act prohibited by law which would not be an offense if committed by an adult.
Rationales recognized by the Supreme Court of the United States for treating the rights of minors differently from those of
adults: (Bellotti v. Baird) --
The peculiar vulnerability of youth;

Their inability to make critical decisions in an informed mature manner; and

The importance of the parental role in childrearing (parents’ rights are also a pressure when applied to children’s
rights).
Juvenile Curfews

Commonwealth v. Weston W. 
o
“WHEREAS the City of Lowell has an obligation to provide for the protection of minors from each other and
from other persons, for the enforcement of parental control over and responsibility for children, for the
protection of the general public, and for the reduction of the incidence of juvenile criminal activities…”
o
Curfew ordinance – operates to limit the amount of time in public in the specified time, restriction on right to
move around freely.

Constitutional matter – right to travel; restricting people’s freedoms.
o
In this case, this curfew ordinance was constitutional. Court applied “strict scrutiny” standard – court looked at
goal of ordinance, the ordinance was narrowly tied to its stated goals.
CASE STUDY: PROBLEM
Four months ago, Mia was charged with truancy after missing 24 days of school. The Judge was lenient and gave her probation
because it was her first offense. When Mia met with her probation officer, she revealed that she was not attending school because
she had to help her mother with her three siblings. Mia also revealed that she was not actually related to a man she had
previously claimed was her uncle, but that ‘she worked for him.’ Mia would not answer any follow up questions about the man.
Concerned about her safety, the probation officer called a local organization working with young run away girls who may have
been trafficked. Mia was assigned a caseworker and a mentor. She began attending group and individual therapy once per week.
Mia went to the first few therapy sessions, but they were at an inopportune time (3:00 PM and 4:00 PM; her mother did not get
home until 6:00 PM). Mia tried to change her appointment time to 6:30 PM and asked for the therapist to make in home visits.
Unfortunately, the organization was unable to provide in-home services due to funding constraints. For three weeks Mia brought
her three siblings to her therapy sessions, but eventually stopped altogether due to the difficulty. The mentor continued to meet
with Mia for several more weeks but stopped after Mia failed to return three phone calls. At this point, Mia had missed another
34 days of school and is at risk of repeating the ninth grade.
Five days ago Mia ran away from home. Her mother called the police three days ago. When the police found her, Mia was with the
man reported to be her uncle. She will appear before a judge tomorrow on charges of truancy and running away. Her public
defender attempted to meet with her, but Mia refuses to answer his questions. She says that her “uncle” will take care of things
for her.
13
Status Offense Jurisdiction of the Juvenile Court

In re Walker 
o
Being disobedient of parents
o
At initial hearing, she did not have an attorney
o
On appeal, her claim was that she had a constitutional right to counsel at the hearing on the initial petition
alleging her to be an undisciplined child. (SC precedent to In re Gault, in a delinquency context, being
adjudicated a delinquent you are at risk of institutionalization.

Does the Constitution afford her such a right?

Held that counsel is not constitutionally required at the hearing on an undisciplined child
petition.
o
NOTE: Status offense does not equal delinquent offense; delinquent offense does not equal a criminal offense.

District of Columbia v. B.J.R. 
Should Children Be Able to Divorce Their Parents? Emancipation

Emancipation by marriage (in compliance with state marriage requirements)

Emancipation by military enlistment

Emancipation by court order

Essentially when does a child become an adult, other than by age?

In re Snyder 
o
Parents challenged the decision of the Juvenile Court’s decision which found their daughter to be an incorrigible
child.
o
A child is deemed incorrigible when she is beyond the power and control of her parents by reason of her own
conduct.
o
Evidence that a minor was adamant about refusing to return home, had established a pattern of refusing to obey
her parents, and on two occasions had fled her home was sufficient to support a finding of a loss of parental
power and control, and subjecting the minor to state CHINS jurisdiction.
Juvenile Delinquency

Purposes of Punishment and Juvenile Justice
o
Rehabilitation
o
Deterrence – special & general
o
Incapacitation
o
Retribution

When children commit crimes, how should the state handle it?

In GA, age of majority =18, but for criminal responsibility the age is 17.
o
In GA, if you commit a crime at the age of 17, regardless of the severity, you are subject to punishment as an
adult.
Jurisdiction and Disposition in the Juvenile Court  Who is Subject to the Delinquency Jurisdiction of the Juvenile Court?
Age Jurisdiction
In re Michael B. 

9-year-old Michael B. appeals the order of the juvenile court declaring him a ward of the court.

“All persons are capable of committing crimes except […] children under the age of 14, in the absence of clear proof that at
the time of committing the act charged against them, they knew its wrongfulness…”
Additional Consideration: Mens rea/infancy defense

"[B]ecause parens patriae theory depends on the notion that the child is being helped and thus is not being tried for a
crime and punished as a criminal, there was no need to determine whether the child had the capacity to act in a culpable
fashion." -Andrew Walkover, 31 UCLA L. Rev. 503.
Waiver/Transfer

Juveniles may be transferred from the juvenile court to the adult criminal court.
o
Judicial Waiver

Georgia Judicial Waiver – Ga. Code Ann. § 15-11-561

Allow juvenile court judges to waive jurisdiction to enable juveniles to be adjudicated in criminal
courts.
o
Legislative Waiver/Automatic Waiver

GA’s School Safety and Juvenile Justice Reform Act of 1994 (SB440)

Georgia Legislative Waiver – GA. Code Ann. §15-11-560
o
Superior Court – court of general jurisdiction

Exempt designated offenses from juvenile court jurisdiction, thereby enabling juveniles to be
adjudicated automatically in criminal courts
o
Prosecutorial Discretion

Enable prosecutors to exercise their discretion to charge juveniles as adults
o
Ga. Code Ann. § 15-11-562 – criteria that the juvenile court shall consider in determining whether to transfer an
alleged child… to superior court and the criteria the superior court shall considering in determining whether to
transfer any case involving a child 13-17 years of age… to juvenile court….
o
Georgia Reverse Waiver – Ga. Code Ann. § 15-11-560
14
Disposition and Treatment

Sentencing available to kids; least restrictive alternative

Juvenile court delinquency proceedings have two aspects: (1) the adjudicatory or jurisdictional phase – in which the court
must decide whether the young person’s conduct warrants juvenile court jurisdiction; and (2) the dispositional phase – in
which the judge is phased with the task of deciding what to do with a youth over whom jurisdiction has been established.

Dispositions:
o
Community based sanctions such as community service and restitution.
o
Court supervision through formal probation (terms set by court order)
o
“Commitment”/placement of youth in custody of local department of juvenile for supervision, treatment, and
rehabilitation.
o
Secure detention in state facility.
PROBLEM
Thirteen-year old Tony is a member of the Jets, a loose gang of boys who are mostly 15-17 years old. As his initiation into the Jets,
Tony was told that he must mug an old lady. Two days later, Tony knocked down a 73-year-old woman as she was leaving a
grocery store and snatched her purse. The woman was hospitalized for a broken hip. A bystander recognized Tony, and reported
the incident to the police.
Should Tony be held responsible for his act?
How so?
Should he be adjudicated delinquent?
Should he be sent to training school/detention center?
Put in foster care?
Put on probation?
What information should be relevant to these decisions?
Capital Punishment for Persons who Commit Crimes as Juveniles

Roper v. Simmons 
o
“It is difficult for even expert psychologists to differentiate between the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable
corruption."
o
SCOTUS held that execution of persons who were under 18 years of age at the time of their crimes constitutes
cruel and unusual punishment because the cognitive differences between adults and children affect children’s
reasoning.

The court highlighted certain differences that justify differential treatment of children, including their
immaturity and susceptibility to negative influences, their vulnerability, and the fact that they are still
forming their identities.
o
Simmons committed murder at the age of 17.
o
State sought the death penalty
o
Age as a mitigating or aggravating factor?
o
Concluded that 3 general differences between juveniles under 18 and adults demonstrate that juveniles cannot
reliably be classified among the most culpable offenders

Diminished culpability

A lack of maturity and an underdeveloped sense of responsibility

Juveniles are more vulnerable or susceptible to negative influences and outside pressures

Character of juvenile I not as well formed as that of an adult.
o
No death penalty for crimes committed as children (aka under the age of 18)
o
Held that the age of 18 is the line for which eligibility for the death penalty rests.
o
Court held that the death penalty was unconstitutional for minors under age 18 based in part on developmental
differences between juveniles and adults that prevented juveniles from being classified as the most culpable
criminals.
o
Debate centers around the application of the Eighth Amendment’s prohibition on cruel and unusual
punishment.
o
Categorical ban of death sentence for crimes committed by juveniles
Life Without Parole for Persons Who Commit Crimes as Juveniles: Twice Diminished Culpability for Juvenile Nonhomicide
Offenses?

Graham v. Florida 
o
“A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name
only.”
o
Whether the Constitution permits a juvenile offender to be sentenced to life in prison without parole for a
nonhomicide crime?
o
Is Life Without Parole in violation of the 8th Amendment when there’s a nonhomicide crime involved?
15
Court said this is a violation

Need to look at evolving standards of moral decency – they look at state legislature
(majority of states have a legislation allowing it) (national consensus) so they look at actual
sentencing (majority are serving in Florida).

Look at state interest around the goals of punishment:
o
Retribution – doesn’t support the sentence here.
o
Deterrence – doesn’t support the sentence here.
o
Incapacitation – does not justify the life without parole sentence here
o
Rehabilitation – does not justify sentence here
For a juvenile offender who did not commit homicide, the 8th Amendment forbids the sentence of life without
parole. . . . HOWEVER, a state is not required to guarantee eventual freedom to a juvenile offender convicted of
a nonhomicide crime.

What the state must do, however, is give defendants like [Graham] some meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation.
Categorical ban  juvenile offenders are not eligible under any circumstances for LWP.

o
o
Life Without Parole: Proportionate for Juvenile Homicide?

Miller v. Alabama 
o
“Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark
features -- among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents
taking into account the family and home environment that surrounds him -- and from which he cannot usually
extricate himself -- no matter how brutal or dysfunctional…”
o
8th Amendment allows for JLWP for homicide offenses.
o
No categorical ban on mandatory JLWP sentence, however, the courts cannot impose JLWP sentences on
juvenile murderers without an individualized finding that considers the D’s characteristics and the details of
the offense.


In Graham v. Florida, [issue: whether the Constitution permits a juvenile offender to be sentenced to life in prison
without parole for a nonhomicide crime] the Court reiterated Roper’s categorical distinction between adolescents and
adults in holding unconstitutional mandatory life imprisonment sentences for offenders committing non-homicide crimes
when under 18 years of age.
Shortly after Graham, the Court in Miller v. Alabama again extended 8th Amendment protection in finding it to be cruel
and usual punishment to impose mandatory life sentences without parole for those committing murder when under age 18
at the time of their crimes.
Juvenile Life Without Parole

Questions on appeal in Montgomery v. Louisiana
o
(1) Did Miller adopt a new substantive rule that applies retroactively on collateral review to people condemned
as juveniles to die in prison?
o
(2) Did SCOTUS have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give
retroactive effect to Miller?
o
"Substantive rules [...] set forth categorical constitutional guarantees that place certain criminal laws and
punishments altogether beyond the State's power to impose. It follows that when a State enforces a proscription
or penalty barred by the Constitution, the resulting conviction or sentence is, by definition, unlawful.
o
Procedural rules, in contrast, are designed to enhance the accuracy of a conviction or sentence by regulating
“the manner of determining the defendant's culpability.” Those rules “merely raise the possibility that someone
convicted with use of the invalidated procedure might have been acquitted otherwise.” [...] For this reason, a
trial conducted under a procedure found to be unconstitutional in a later case does not, as a general matter,
have the automatic consequence of invalidating a defendant's conviction or sentence."
o
"Miller, then, did more than require a sentence to consider a juvenile offender's youth before imposing life
without parole; it established that the penological justifications for life without parole collapse in light of “the
distinctive attributes of youth.”
o
Even if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still
violates the Eighth Amendment for a child whose crime reflects “ ‘unfortunate yet transient immaturity.’ ”
Procedural Differences Between the Delinquency Process and the Adult Criminal Process: Procedural Due Process
Application of Gault --"...[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone."
“Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor
substitute for principle and procedure....The absence of substantive standards has not necessarily meant that children receive
careful, compassionate, individualized treatment. The absence of procedural rules based upon constitutional principle has not
always produced fair, efficient, and effective procedures ....”
"Under our Constitution, the condition of being a boy does not justify a kangaroo court.”
16







Should a young person have independent counsel for:
o
Noncriminal misconduct/status offenses?
o
Child neglect cases?
o
Divorce proceedings?
o
Commitment to mental health facility?
o
When there is no possibility for incarceration?
In re Gault 
o
What are the procedural due process rights from this case?

Adequate Notice, Right to Counsel, Right to confront and cross examine the accuser; right against
self-incrimination
o
Holdings of this case were limited to the adjudicatory stage of juvenile court delinquency proceedings where a
young person risked incarceration
o
Requires that the juvenile and his parents receive notice of the alleged charges.
o
Required counsel for juveniles only at the adjudicatory stage.
o
Right to counsel, a right to confront witnesses, a high standard of proof, etc.
RECAP --- What is Family Law?
Explored “what is family law?” --- thinking in the state’s interest in assigning/determining parentage and regulating
childhood.
o
State’s interest in determining who a child’s legal parents are? (traditional family construct being the right
place to start
Determination of legal parentage
o
Why? Duty of support, protection, education

Duties arise when children are born --- children need parents, and the state has an interest that the
legal parental status is delineated for those duties (protection, education, maintenance and
support  common law and now codified in statutes)
o
How do we assign legal parents to children?

Biology-based parentage (biology is where we start)

Classic example: child born to a mother, mother is legal biological mother of child.

Determination of paternity reflect state interest in economically secure and emotionally stable
family

Marital presumption: parent through marriage
o
Child born into a marriage is presumed to be the child of those legal parents.

Legal presumptions: unmarried parents and fathers

Parent by estoppel (“holding out”)

Court adjudication (legitimation) (court process)  parents rights and legal status can
be assigned (presumption of parentage) (paternity on basis of biology) (petition of court
process to get parentage assigned – adjudication)
o
Court determines the person who would be the child’s parents (i.e., a father
who has not signed birth certificates)

Voluntary acknowledgment of paternity
o
Parental acknowledgment (UPA) of paternity in order to secure child support
roles

Adoption – biological parent signs away their legal rights of the child; a legal fiction in the
construction of families, biological families by consent surrenders parental rights, or court
terminates rights, and adoption as a legal construct works to say that child is basically born to the
adoptive parents and is of those parents, and they are the child’s legal parents for all and every
purpose.

ART

Contract of intended parentage – artificial reproductive technologies – dispose of
donor’s rights and assignment of rights in the context of intended parentage

Equitable Principles: estoppel  holding children out as your own, giving you some right
pertaining to paternity presumption and then strapping you into the legal fatherhood role.
States interest in regulating childhood – making sure the child is not dependent on the state (economic context) and
regulating illegal/inappropriate behavior of children
State goals also deal with safety of society with the interest of children.
Regulating Childhood
o
Status offenses, delinquency, adult prosecution and sentencing of children
When Families Flip the Script  Intended Parentage
De facto Parenthood

“Substitute parent” “alternative parents”

What might be a de facto parent?
o
Care taking, living with the child, someone who has functioned as a parent (providing care, long term
commitment to childrearing), shouldn’t’ there be something about that, that the law respects?
17

In re Parentage of L.B. 
o
"...[I]nevitably, in the field of familial relations, factual scenarios arise, which even after a strict statutory
analysis remain unresolved, leaving deserving parties without any appropriate remedy, often where
demonstrated public policy is in favor of redress."
o
“...[to conclude that no remedy is available] would be antagonistic to the clear legislative intent that permeates
this field of law –to effectuate the best interests of the child in the face of differing notions of family and to
provide certain and needed economical and psychological support and nurturing to the children of our state.”
o
Seeking declaration of parentage
o
Woman brought action against biological mother or minor, seeking to establish her coparentage of minor, who
was conceived by artificial insemination during the woman’s 12-year intimate domestic relationship with
mother.
o
Finding a path through an equity analysis
o
Psychological parents; in loco parentis; de facto parenthood

In loco parentis doctrine  act in place of the parent, but not that you are the parent; i.e., when the
state takes custody of the child

Psychological parent  tends to reflect more on the emotional relationship between the person and
the child (fostering parents); the emotional relationship between them (no legal status or rights
attached)

De facto  most elevated version of these doctrines; in loco parentis and psychological may get you
some designation (like a third party), de facto is based on meeting certain criteria and gets you a
standing if you seek to petition for visitation

De facto is not a privileged parenthood --- and can get you elevated towards the legal rights and
support and protection (duties).
o
Statutory arguments/considerations:

Uniform Parentage Act of 2000 as adopted by State of Washington

"A child born to parents who are not married to each other or in a domestic partnership
with each other has the same rights under the law as a child born to parents who are
married to each other or who are in a domestic partnership with each other." Wash. Rev.
Code Ann. §26.26.106

"The provisions in this chapter apply to persons in a domestic partnership to the same
extent they apply to persons in a marriage and apply to persons of the same sex who have
children together to the same extent they apply to persons of the opposite sex who have
children together." Wash. Rev. Code Ann. §26.26.051q

Various provisions regarding intent of the par ties in cases of artificial insemination. Wash.
Rev. Code. Ann.§26.26.700-740.

But also, UPA definition of a “parent”:” An individual who has established a parent-child
relationship ... A mother-child relationship is established in 5 situations: (1) when a woman
gives birth to a child, (2) through an adjudication of maternity, (3) through adoption, (4) by
a surrogate parentage contract, or (5) by an affidavit and physician’s certificate stating a
person’s intent to be bound as a parent of a child born through [ART].
o
Additional case law argument/consideration:

In re Marriage of Allen 

Recognizing that in custody disputes between parents and nonparents "[g]reat deference is
accorded to parental rights" yet those rights are "balanced by the State's interest as parens
patriae in the child's welfare. When these interests come into conflict, the parent's rights
may be outweighed." 28 Wash.App. 637, 641 (1981).

In re Custody of Stell 

Recognizing that a child and their "psychological parent [...] represent a family unit [that]
cannot be ignored." 56 Wash. App. 356, 369, (1989).

E.N.O. v. L.M.M. 

“[t]he child’s interest in maintaining his filial ties with the plaintiff counters the [biological
mother’s] custodial interest.”

The fact that “[t]he only family the child has ever known” could be described as a
nontraditional family, did not make its disruption any less significant to the child. As such,
E.N.O.’s holding principally rested on its conclusion that “recognition of de facto parents is
in accord with notions of the modern family.” and it is the actual family unit that should
ultimately be afforded respect and protected from unreasonable disruption. 429 Mass. 824,
828-30 (1999).

Troxel v. Granville 

"[W]e have recognized the fundamental right of parents to make decisions concerning the
care, custody, and control of their children."530 U.S. 57, 66 (2000).

Supreme court reaffirmed parents’ fundamental liberty interest in childrearing and held
that grandparent visitation constitutes a challenge to family autonomy when a fit custodial
parent opposes visitation.

Statute was unconstitutionally broad (what is the unconstitutional infringement? The
mother was a fit parent and the state stepping in infringed on her rights with no
justification; right to direct the care and upbringing of her child which includes who gets to
visit her kids)
18



Court, relying on Meyer and Pierce, Troxel invalidated a broad third-party visitation statute
as a violation of a mother’s due process rights to control the upbringing of her children.
Court held that the state’s visitation statute, as applied, infringed on the “fundamental
rights of parents to make decisions concerning the care, custody, and control of their
children.”
Violated mother’s due process rights because the trial court contravened the traditional
presumption that a fit parent will act in his/her child’s best interests and gave no special
weight to the fit mother’s determination of those best interests.
Cultural and Racial Patterns in Family Structure

Moore v. City of Easy Cleveland, Ohio 
o
“Extended Families”
o
Housing Code of the city of East Cleveland – limits occupancy of a dwelling unit to members of a single family.
o
Holding – liberty interest of family privacy and integrity are substantive due process rights and surgical
contouring of what did or did not constitute a family based on the ordinance violated P’s substantive due
process rights
o
Ordinance is unconstitutional and violated the P’s right to due process

The ordinance failed to serve the states governmental interests (i.e., prevention of overcrowding,
minimizing traffic and parking congestion, and avoiding an undue financial burden on the school
system).
o
“Even if conditions of modern society have brought about a decline in extended family households, they have
not erased the accumulated wisdom of civilization, gained over the centuries and honored throughout our
history, that supports a larger conception of the family. Out of choice, necessity, or a sense of family
responsibility, it has been common for close relatives to draw together and participate in the duties and the
satisfactions of a common home.”
o
Brennan’s Concurrence --
“I write only to underscore the cultural myopia of the arbitrary boundary drawn by the East Cleveland
ordinance in light of the tradition of the American home that has been a feature of our society since
our beginning as a Nation, the “tradition” ... ‘of uncles, aunts, cousins, and especially grandparents
sharing a household along with parents and children ....’”

”In today’s America, the “nuclear family” is the pattern so often found in much of white suburbia. The
Constitution cannot be interpreted, however, to tolerate the imposition by government upon the rest
of us of white suburbia’s preference in patterns of family living.”

Reasoning that the tradition of the extended family is rooted in history, the Court concludes that the
extended family is equally deserving of constitutional protection as the traditional family.
Immigration
o
o
Gonzalez v. Reno 

Whether children possess capacity to make particular immigration decisions when their parents are
against it

Asylum  seeking relief from conditions in your country; superior claim in the context of an unfit
parent

“Any alien who is physically present in the United States or who arrives in the United States
(whether or not at a designated port of arrival and including an alien who is brought to the United
States after having been interdicted in international or United States waters), irrespective of such
alien’s status, may apply for asylum…”
Polovchak v. Meese 

Soviet immigrant parents decided to return to their native country and their minor son wished to stay
in the United States. Against his parents’ wishes and without their knowledge, he sought and was
granted asylum.

"The ability of a young person to decide to which political system he professes
allegiance necessarily increases with age. We do not suggest that every twelve-year-old
entertains serious political views (although some may); we would, however, suggest that many
seventeen-year olds do. Similarly, as the child grows, his parents' influence over him weakens, and the
time his parents have in which to guide him grows shorter.

The district court may be correct that parents 'have the right to bring up their children as atheists or
Communists,' but it is surely relevant that Walter has decided that he does not want to be a
communist or an atheist and that his parents have only the few remaining days of his minority to try
to change his mind."
CASE EXAMPLE: Unaccompanied Child Seeking SIJS
Marco, who just turned 17, came from Honduras fleeing gang violence. He had been living on his own for several years, mostly on
the street. He has never known his father and his mother died three years ago. He was apprehended at the border, transferred to
a shelter operated by a grantee of the HHS Office of Refugee Resettlement, and placed in removal proceedings before the
Immigration Court. At the ORR-funded shelter, Marco shared the name of an uncle who he had not seen in many years. The
uncle agreed to be Marco’s sponsor and Marco was released to the uncle. As is standard with ORR sponsor arrangements,
Marco’s uncle did not have a formal legal order of custody or guardianship. Although he helped Marco enroll in school, soon after
Marco’s arrival it became clear the uncle did not have space for Marco or a desire to care for him. Marco began couch surfing with
different friends he met at school and sometimes sleeping outside or in an area youth shelter. One of the staff at the shelter
learned about Marco’s background and contacted CPS to report that he should be taken into care. The CPS hotline worker
19
suggested that perhaps he could be “sent back” to the ORR shelter. Because Marco was abandoned by his father and could not
reunify with his mother due to her death, Marco could be eligible for Special Immigrant Juvenile Status (SIJS). Because he is
about to turn 18, a predicate order from the state court for his SIJS application should be pursued quickly.
Case Example: Family Separation at the Border
Five-year-old Mariella traveled to the United States from Guatemala with her father Daniel in search of protection. They were
apprehended by CBP at the Southwest border and separated. Mariella, who only speaks a Mayan language, was left in a cell with
other children. Eventually, Mariella was sent to an ORR foster care program, and her father was sent to ICE detention. While in
ORR care, Mariella could not identify any other family members to whom she could be reunified. As a result, Mariella would have
to remain in ORR custody unless her father was released. Mariella’s father requested a credible fear interview because of death
threats he received in Guatemala. But the difficulty of detention and separation from his daughter were so great that he
ultimately changed his mind and gave up the family’s case. Daniel and Mariella were removed to Guatemala.
Case Example: Interior Enforcement
Maria Luis took her infant daughter to a hospital for care. Medical staff treated the girl and sent her home with follow-up
instructions. The child seemed to be improving, so Maria skipped the doctor’s appointment and the doctor notified child welfare.
When a police officer and child welfare worker came to her house, Maria panicked and said she was the babysitter. The police
officer took Maria into custody on a charge of obstruction. Police later dropped the charge, but Maria was transferred to ICE and
her daughter and 7-year-old son were placed in custody of child welfare agency. Maria was not assigned an attorney when she
appeared in court in the child welfare case. The interpreter spoke Spanish, which Maria -an indigenous language speaker struggled to understand. Ultimately, Maria accepted voluntary departure, thinking she would be reunified with her children. She
didn’t understand that there was a child welfare proceeding and that the state would decide whether she got her children back.
From Guatemala, Maria had to figure out how to get a psychological evaluation, take parenting classes, prove she was a fit parent,
and convince a judge that Guatemala was safe. With the help of pro bono attorneys, Maria’s case went to the Nebraska Supreme
Court, which ruled that the state acted improperly in terminating her parental rights. After five long years, Maria was finally
reunified with her children in Guatemala.
Whose Line/Role is it Anyway? (State, Parents, Children?)  Preservation of Life
Preservation of Life: Fetal Rights Before Roe v. Wade








“…unborn have never recognized by the law as persons in the whole sense.” – Justice Blackmun
1821: Connecticut passes the first law in the US to restrict abortion. It prohibits the use of a toxic substance to cause a
miscarriage after “quickening.” A number of other states follow.
1973: Comstock Law bans the selling or distributing of materials related to contraception and abortion.
1930s: The number of abortions increase significantly during the Great Depression.
1950s: Hospitals begin forming “therapeutic abortion boards” to decide whether doctors can perform an abortion on a
case-by-case basis. Therapeutic abortions are allowed by law if mother’s life is in danger.
1965: SCOTUS recognizes the right of marital privacy that protects a married couple’s right to use birth control,
invalidating Connecticut statute which made the use of certain devices criminal (Griswold v. Connecticut)[context
in marital couple and right of privacy between marital couple] [RIGHT TO PRIVACY]  SCOTUS held that marriage is
a “relationship lying within the zone of privacy created by several fundamental constitutional guarantees,” and
therefore a Connecticut state law forbidding the use of contraceptives to married couples was found to violate the
constitutional right to marital privacy.
1970s: 20 states pass abortion reform or repeal laws. Hawaii, Alaska, New York, and Washington state legalize
abortion.
1972: SCOTUS legalizes use of birth control pills for all women, regardless of marital status. Before the decision, only
married women were able to receive the pull with a doctor’s prescription. (Eisenstadt v. Baird) this right of privacy
is an individual right, right to be free from unwarranted government intervention) [RIGHT TO PRIVACY]  court
extended the right to use contraceptives to unmarried persons, striking down a Massachusetts statute which prohibited
the distribution of contraceptives except upon a physician’s prescription to a married person.
The Child, the Family, and the State
 The government has a special responsibility to protect children that is rooted in the doctrine of parens patriae.
 Right to privacy in protecting individual decisions and government’s involvement
Preservation of Life: Is a Fetus a Child?

Roe v. Wade  (constitutional parameters)
o
“Criminal statute excepting only lifesaving procedures on behalf of the mother without regard to pregnancy
state and without recognition of the other interests involved is violate of the Due Process Clause of the
Fourteenth Amendment.”
o
Addressed the issue of abortion – state had the authority to regulate and enforce the conditions under which
abortions could be performed.
o
Roe’s claims are around the constitutionality of Texas Statute – claiming that (1) it was unconstitutionally
vague, and (2) violation of personal privacy under amendments to the Constitution.
o
The right of personal privacy includes the abortion decision, but that this right is not unqualified and must be
considered against(aka balanced against) important state interests in regulating/safeguarding the mother’s
20
o
health, in maintaining medical standards, and in protecting potential life. (right to make a decision to terminate
your pregnancy falls within the scope of the individual right to privacy).

Where certain “fundamental rights” are involved, the Court has held that regulation limiting these
rights may be justified only by a “compelling state interest,” and that the legislative enactments must
be narrowly drawn to express only the legitimate state interests at stake.

A state criminal abortion statute of the current Texas type, that excepts from criminality only
a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without
recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth
Amendment.
The statute unnecessarily infringed on the woman’s right to privacy in violation of the DPC of the 14th
Amendment, which already included a woman’s fundamental right to bear a child, a fundamental right of
privacy in deciding whether to terminate her pregnancy.
Roe Trimester Framework
(a) First Trimester: For the stage prior to approximately the end of the first trimester, the abortion decision and its
effectuation must be left to the medical judgment of the pregnant woman's attending physician (medical decision between the
woman and her physician, in private, and protected from state interference).
(b) Second Trimester: For the stage subsequent to approximately the end of the first trimester, the State, in promoting its
interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to
maternal health (state’s interest in the mother’s health becomes compelling and the state has the limited authority to regulate
abortions to the extent reasonably related to the preservation and protection of the woman’s health).
(c) Third Trimester: For the stage subsequent to viability, the State in promoting its interest in the potentiality of human
life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for
the preservation of the life or health of the mother (specifically, the state may prohibit abortions during the final trimester unless
the mother’s life or health is at stake).
Post Roe

Planned Parenthood of Central Missouri v. Danforth 
o
Question of spousal consent
o
Challenged statute requiring husband’s prior written consent of a woman seeking an abortion during the first
trimester of pregnancy, unless the abortion was necessary to save the mother’s life.
o
As between the interest of the father and the privacy right of the mother, the Court ruled in favor of the
mother: “it is the woman who physically bears the child and who is the more directly and immediately affected
by the pregnancy, as between the two, the balance weighs in her favor.”
o
In striking down the statute, the Court concluded: “we cannot hold that the State has the constitutional
authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy, when
the State itself lacks that right.”
o
Invalidated a statutory provision requiring the prior written consent of a husband to his wife’s abortion, and
holds that the state may not delegate to a husband that power which the state is prohibited from exercising
during the first trimester by Roe v. Wade. The latter ruling has been reaffirmed by the US Supreme Court in
Casey, invalidating a spousal notification requirement.

Planned Parenthood of Southeastern Pennsylvania v. Casey  question of spousal notification
o
“The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for
whom the law is irrelevant…”
o
“It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a
far greater impact on the mother’s liberty than on the father’s.”
o
Constitutional challenge to an abortion notification statute.
o
A state statute permitted doctors to perform an abortion for married woman ONLY if she provided a sign
statement that she had notified her husband that she planned to have an abortion.
o
Requiring a married woman to notify her husband that she plans to have an abortion violates the U.S.
Constitution by placing an undue burden on her right to privacy.
o
Required to get the consent of her spouse before getting an abortion?
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Argument for No – there cannot be a spousal notification requirement because it is too much of a
burden on the woman
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Does the regulation pose an undue burden is now the test!!!!
o
Women who were subject to violence
o
Womens’ interests and how are they compelling? Substantial obstacle to exercise

Roe standard – compelling interest (strict scrutiny) and narrowly tailored to legitimate
state goals
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Argument for Yes –
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Gonzales v. Carhart 
o
Partial Birth Abortion Ban Act of 2003 challenged
o
“…legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized
notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy
equal citizenship stature.” – Justice Ginsburg, dissenting.
o
Congressional Act that bans a particular form of abortion
21
o
o
o
o
Considering the validity of the Partial-Birth Abortion Ban Act of 2003, a federal statute regulating abortion
procedures – the Act proscribes a particular manner of ending fetal life.
Congress enacted the Partial-Birth Abortion Ban Act of 2003 to regulate a particular abortion procedure
involving the partial birth of the fetus prior to aborting it.
“Before viability, a State may not prohibit any woman from making the ultimate decision to terminate her
pregnancy. It also may not impose upon this right an undue burden, which exists if a regulation's purpose or
effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus
attains viability. On the other hand, regulations which do no more than create a structural mechanism by which
the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are
permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose.”
SCOTUS upholds the federal ban on partial-birth abortions

Stenberg v. Carhart 
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SCOTUS held that a Nebraska ban on partial-birth abortions was unconstitutional because
it lacked any exception for preservation of the other’s health.
Legal Paternalism: Forcing Medical Treatment on Pregnant Women

Burton v. State 
o
Case involves a challenge to a court-ordered intervention that overrides a pregnant woman’s refusal of medical
treatment that was deemed necessary to protect her fetus.
o
Appeal of a circuit court order compelling a pregnant woman to submit to any medical treatment deemed
necessary by the attending obstetrician, including detention in the hospital for enforcement of bed rest,
administration of intravenous medications, and anticipated surgical delivery of the fetus.
o
“A patient’s fundamental constitutional right to refuse medical intervention “can only be overcome if the state
has a compelling state interest great enough to override this constitutional right.”

Threshold issue: Whether the state established a compelling state interest sufficient to trigger the
court’s consideration and balance of that interest against the appellant’s right to refuse to submit to
the medical intervention the obstetrician prescribed.

The State's interest in the potentiality of life of an unborn fetus becomes compelling at the
point in time when the fetus becomes viable, defined as the time at which the fetus becomes
capable of meaningful life outside the womb, albeit with artificial aid. The legislature
has defined "viability" as that stage of fetal development when the life of the unborn child
may with a reasonable degree of medical probability be continued indefinitely outside the
womb. § 390.0111(4), Fla. Stat. No presumption of viability is provided in the statute.

Because there is no statutory or precedential presumption of viability, in terms of the stage
of pregnancy or otherwise, there must be some evidence of viability via testimony or
otherwise. Only after the threshold determination of viability has been made may the court
weigh the State's compelling interest to preserve the life of the fetus against the patient's
fundamental constitutional right to refuse medical treatment. [No such evidence of viability
was introduced in this case.]
o
The test to overcome a woman's right to refuse medical intervention in her pregnancy is whether the State's
compelling state interest is sufficient to override the pregnant woman's constitutional right to the control of her
person, including her right to refuse medical treatment. In addition, where the State does establish a compelling
state interest and the court has found the State's interest sufficient to override a pregnant patient's right to
determine her course of medical treatment, the State must then show that the method for pursuing that
compelling state interest is narrowly tailored in the least intrusive manner possible to safeguard the rights of the
individual.

This test was not applied in this case.
PROBLEM
Simmone Ikerd pleads guilty to welfare fraud. Simmone is a drug addict who is 11 weeks pregnant and is undergoing treatment
at a methadone clinic. She is sentenced to 5 years’ probation, conditioned upon completion of drug treatment. One month later,
she appears in court for a probation violation; i.e., failure to appear for a drug test (she claims she had to leave the test site to take
an older child to the doctor). Believing that the only place where Simmone’s addiction and the health of her fetus could be
addressed is a correctional facility, the judge sentences her to prison for the duration of her pregnancy. The judge explains that if
Simmone loses the baby, he will reconsider the sentence. She appeals. What result? \
See State v. Ikerd, 850 A.2d 516 (N.J. Super. Ct. App. Div. 2004).
Fetal Rights: Viability

“When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any
consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the
answer.” --- Justice Blackman, Roe v. Wade

Historically:
o
28 weeks  Roe v. Wade (1973)
o
22-24 weeks  Planned Parenthood v. Casey (1992)
o
Current push for 20-22 weeks
o
Fetal Pain and Heartbeat Laws – ways in which the 20-22 weeks being a point of viability should be accepted.
PROBLEM
22
Marie Odette Henderson, when six and on-half months pregnant, is put on life support due to brain tumor. Her parents ask her
physicians to remove her from the equipment that is keeping her and her fetus alive. The father of the unborn child, who is Ms.
Henderson's fiancé, seeks a court order naming him as the fetus's guardian and directing the hospital not to remove the
equipment until the infant can be delivered by Cesarean section and physicians can disconnect the life support system.
Should the court grant the order?
How should the court balance a pregnant woman's interests against the father's interests if the woman is severely disabled or
brain dead?
Mother’s interests  she’s in a physically incapacitated state, not coming out. So, should her interests prevail over the potential
life here when her life has effectively come to an end?
Whose Line/Role is it Anyway?  Protection from Harm
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When can the state invoke its authority to protect the child?
What are the legal standards for intervention in the family?
Limits of parental privilege to discipline children?
When should the state remove the child from the home/parental legal custody?
Do existing legal remedies provide adequate protection and procedural safeguards?
Natural and legal duty that comes in the version of supporting the child, also comes in the version of protecting the child from
harm, also flows from this natural bonding and attachment of offspring.
Parental Prerogative – common law natural duty that parent as to provide support and protection for their child.
Parens patriae authority – state has inherent authority to act and aid in protection of tis vulnerable citizens
Parental Prerogative on the one hand, parens patriae authority on the other hand.
Meyer v. State of Nebraska (1923)
“Evidently the [Nebraska] Legislature has attempted materially to interfere with the calling of modern language teachers, with
the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own.”
State interest of police power  Nebraska Supreme Court thought it was valid.
Upheld conviction of teacher teaching a language other than English (violating Simon Act)
US Supreme Court – is this kind of regulation appropriate in light of the various interests or does it infringe on the liberty
interests of the teacher? Yes, it was a violation of liberty interest of teacher.
Court struck down a Nebraska statute that prohibited instruction in certain foreign languages in private schools on the basis
that the restriction materially interfered with the power of the parents to control the education of their children, as well as with
the opportunity of children to acquire knowledge.
Court identifies a substantive due process right of parents of care and upbringing of children
o
Education is important, parents have a natural duty to provide education
The right to establish a home and bringing up children.
The “liberty” interest protected by the DPC includes the right of parents to “establish a home and bring up children” and “to
control the education of their own.”
Right to Family Integrity

Substantive Due Process: the doctrine that certain rights are so fundamental to a system of ordered liberty that they
are included within the meaning of “life, liberty and property.”

Right to family privacy/integrity is among the most established and respected constitutional rights.
o
Meyer v. Nebraska: the right to “establish[ing] a home and bring[ing] up children”
o
Pierce v. Society of Sisters: the right to “direct the upbringing and education of children under [parental]
control”

Court spoke in broad terms of “the liberty of parents and guardians to direct the upbringing and
education of children under their control.”
o
Stanley v. Illinois: the right to parent-child relationship (unmarried father); hearing on their fitness
o
Troxel v. Granville: grandparent visitation statute out of Washington was broad (granted third party
visitation on the best interest of child even over the mother’s objection, if you have a fit parent they can choose
who can visit children)
Prince v. Massachusetts:

Recognized a “private realm of family life which the state cannot enter;” however, . . .
o
the right to family privacy is not inviolate:

“It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can neither supply nor
hinder.

Acting to guard the general interest in youth’s well-being, the state, as parens patriae,” has a wide
range of power for limiting parental freedom and authority in things affecting the child’s welfare (i.e.,
Compulsory school attendance, child labor prohibitions).
Protecting the Child From Abuse and Neglect: Discipline

Extent to which the state can intervene in the family in the interest of child protection.
23
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Despite the principle of parental autonomy, child abuse and/or neglect provide a compelling reason for state intervention
in the family.
The Parental Privilege to Discipline Children: Limitations on Parent’s Use of Force

Willis v. State 
o
Examining the balance that must be struck in determining when a parent’s use of physical force as a form of
discipline crosses the line into criminal conduct.
o
Willis (single mother) struck her 11-year-old son 5-7 times with either a belt or an extension cord following his
history of disciplinary problems.
o
Willis was arrested and charged with battery as a Class D felony
o
“A parent has a fundamental liberty interest in maintaining a familial relationship with his or her child. This
fundamental interest includes the right of parents ‘to direct the upbringing and education of children.’ However,
the potential for child abuse cannot be taken lightly. Consequently, the State has a powerful interest in
preventing and deterring the mistreatment of children…”
o
Court said Model Penal Code is not helpful
o
Court adopts the view of the Restatement (Second) of Torts § 147

“A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon
his [or her] child as he [or she] reasonably believes to be necessary for its proper control, training, or
education.”

Restatement provides guidance on the factors that may be considered in determining the
reasonableness of punishment (not exhaustive list, other factors may be used depends on the facts of
the case; factors should be balanced against each other, giving appropriate weight as the
circumstances dictate, in determining whether the force is reasonable).

“In determining whether force or confinement is reasonable for the control, training, or education of a
child, the following factors are to be considered: (a) whether the actor is a parent; (b) the age, sex, and
physical and mental condition of the child; (c) the nature of his offense and his apparent motive; (d)
the influence of his example upon other children of the same family or group; (e) whether the force or
confinement is reasonably necessary and appropriate to compel obedience to a proper command; and
(f) whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or
permanent harm.”
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MPC  NOTE: until this is codified, no effect with the law  it is just more of an assistance program
PROBLEM
T.A. is a 12-year-old child with Tourette syndrome and ADHD. On the day that T.A.'s family moves to a new home, T.A. is
disobedient and defiant, and refuses to be helpful. When his mother asks him to retrieve a trash can, he empties the contents on
the floor. T.A. later denies the act and begins crying and screaming. His stepfather spanks him 8-10 times with a belt, leaving
bruises that remain for several days. The incident is reported to authorities. The state statute provides:
To use or attempt or offer to use force upon or toward the person of another is not unlawful if committed by a parent...in the
exercise of a lawful authority to restrain or correct his child or ward and if restraint or correction has been rendered necessary by
the misconduct of such child or ward, or by his refusal to obey the lawful command of such parent...and the force used is
reasonable in manner and moderate in degree.
Should T.A. be adjudicated an abused or neglected child or did the stepfather's spanking constitute "reasonable force"?
Parents here argue that the spanking administered by Stepfather was reasonable corporal punishment necessitated by a course of
bad behavior by T.A. over the past few months.
Inquiry: (1) whether the restraint or correction was “rendered necessary” by T.A.’s action and (2) whether the force used by
Stepfather was “reasonable in the manner and moderate in the degree.”
CONSIDER: has there been other alternative disciplinary attempts prior to the spanking?
The bruises remained for several days – so maybe it wasn’t moderate in degree?
Look at factors in Restatement (Second) of Torts §147 and §150.
Whose Role? Protection: Penalties for Failure to Report
Child Abuse: Discovery of Abuse: Reporting Laws
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DeShaney v. Winnebago Cty Dept. of Soc. Svcs. (1989)
“Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to
secure life, liberty, or property interest of which the govt. itself may not deprive the individual.”
Failure to protect by state child agency?
Child protective authorities actively working on behalf of state and seeing injuries and not doing anything and witnessing
results of abuse (malfeasance and nonfeasance on behalf of the child worker)
Court said it was not a violation of his due process rights because state had no affirmative duty to protect and no duty to
protect from private violence (aka him living with his dad).
Court held that no special relationship exists between a child protective service agency and an abused child even though
the agency was investigating the family and was aware of the continuing abuse.
o
Absent a special relationship, the state has no constitutional duty to protect its citizens against deprivation of
life, liberty, or property committed by private individuals.
24
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No state liability when a child was not taken into custody, even though state social worker had feared for the child’s life if
he remained with his father at home.
Boy was in the physical care of his father so the state had no obligation to protect him from abuse.
DeShaney Exception: The State may owe an affirmative duty to protect children from harm when they are taken in state
custody, or when the state acts affirmatively to create the danger to which the individuals become subject.
Becker v. Mayo Foundation
o
Baby was abused, state took custody of baby and placed her in foster care with the Beckers; state terminated the
parental rights of both biological parents and the Beckers adopted the baby
o
Review of 3 issues:
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(1) Whether the state Child Abuse Reporting Act (CARA) creates a cause of action for failure to report
suspected child abuse,
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(2) Whether a hospital that accepts responsibility for treating a child owes that child a special duty to
protect her from future harm, and
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No special relationship because the hospital did not have custody of the child, she was just
there to be treated
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(3) Whether there is a common law cause of action for failure to report suspected child abuse in
Minnesota.
o
Cause of action was under mandatory reporting laws  not able to impose civil liability
Protection From Harm: Counsel for the Maltreated Child
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Client-directed child attorney
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Best-interests/guardian ad litem attorney
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Dual-appointment attorney
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Non-attorney guardian ad litem
PROBLEM
When Angela seeks prenatal care, Dr. Smith orders blood tests that confirms his suspicion that she is using cocaine. He reports
the findings to CPS, which files a motion to take custody of 36 week-old fetus. Juvenile Court issues order for shelter care
directing sheriff to detain unborn child and transport to hospital for inpatient treatment and protection. Before order is
executed, Angela appears voluntarily at an inpatient drug treatment facility.
State files CHINS petition. Angela seeks writ to prohibit court from continuing to exercise its jurisdiction in CHINS proceeding.
What result?
The Problem of Sexual Abuse
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In re I.J. 
o
Sexually abuse of older daughter, there are other siblings who were not direct victims of abused and the sons say they
are happy living with the dad.
o
Law extends protective reach for children who are at risk of being harm – goes beyond actual harm to include
imminent risk or substantial risk of harm
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State being allowed to intrude into the family privacy even when there hasn’t been actual harm so long as
there has been imminent risk or substantial risk of harm

This case illustrates  legal response to familial sexual abuse encompass civil as well as criminal
proceedings.
Whose Role: Protection From Harm
Protecting the Child from Abuse and Neglect: Standard for Intervention and Dispositional Alternatives: When Should the State
Remove?
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When the state should assume primary responsibility for the care and custody of children by intervention in the parentchild relationship.
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Balancing: (1) the fundamental right of family integrity as part of the liberty concept of the 14 th
Amendment with (2) the state – the state does have a legitimate interest in protecting children
from harm as quickly as possible.
Roe v. Conn
Standard for intervention and the state to interfere – strict scrutiny
What does the state need to show for temporary removal of child from custody? A show of neglect
Quality of evidentiary standard – now a days, PC to suspect that neglect or abuse has occurred
In case (1) emergency circumstances (summary removal, then hearing happens quickly after because of infringement on
rights) in which you can suspend procedural due process or (2) PC (reliable evidence) that the child is in need of protective
care  what the removal process is based on  answering when the state can exercise its authority to remove a child.
If we are going to infringe on constitutionally protected interest, this is a substantive due process, so then it requires
procedural due process (aka need hearings)
Procedural due process protection afforded to child – afforded a right to counsel
The state does have a legitimate interest in protecting children from harm as quickly as possible
25
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A state statute authorizes the summary seizure of a child “if it appears that… the child is in such condition that its welfare
requires.”
P = wife mother, challenging the constitutionality of the statute.
Mother’s child was summarily seized and the mother’s rights subsequently terminated because she was living with an
African-American man in an African-American neighborhood.
Court held that the statute is unconstitutionally vague and violates due process.
Without immediate or threatened harm to the child, the state’s interest in child protection is not sufficient to justify the
removal of a child prior to notice and a hearing because of the constitutionally protected interest in family integrity.
Conclusions of Law:
The Fundamental Right to Family Integrity protected by the 14th Amendment.
o
The state’s severance of Plaintiff Wambles’ parent-child relationship and of Plaintiff Roe’s child-parent
relationship will receive strict judicial scrutiny.
Alabama Code violates procedural due process under the 14th Amendment
o
Must balance the administrative needs of the state against the interests of the affect citizens.
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Family members will suffer a grievous loss if the State severs the parent-child relationship (an interest
that is part of the liberty concept of the 14 Amendment).
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State of Alabama does have a legitimate interest in protecting children from harm as quickly as
possible.
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The facts of this case do not show the State was faced with an emergency situation.
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Without danger of immediate harm or threatened harm to the child, the State’s interest in protecting
the child is not sufficient to justify a removal of the child prior to notice and a hearing.
Challenged statutory provisions are unconstitutionally vague
o
Definition of neglect is circular
Nicholson v. Scoppetta 
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Looks at presumption of children beyond exposed to domestic violence.
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Question of definition of neglect and whether neglect encompasses witnessing domestic violence
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Clarifying the line – actual or imminent harm (physically, emotionally, mentally) and have to connect risk or actual harm
to the parent, and that the parent’s act or omission fell below a minimum degree of care.

Children were removed from the homes of mothers who were physically abused, based on a presumptive finding of
neglect, because the mothers passively permitted their children to be exposed to domestic violence.
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Whether being a victim of domestic violence constituted parental neglect?
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ACS had a policy of removing children from their mothers if their mothers were victims of domestic violence, even where
the mothers had committed no violence and the children had never been, nor were in danger of becoming, victims of the
violence.
Neglect Elements as Examined by Nicholson v. Scoppetta:
(1) Actual (or imminent) physical, emotional or mental impairment; and
(2) Causal link between factual allegations and impairment/risk of impairment; and
(3) Parent’s (act or omission) failure to exercise a minimum degree of care.
(a) Objective standard – reasonable person in like circumstances
-Social and economic background, domestic violence
(b) Taking into account special vulnerabilities of child(ren).
Juvenile Court Jurisdiction for Abuse and Neglect
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Every state has a jurisdictional statute that authorizes courts to assume jurisdiction over children who are endangered
because of parental abuse or neglect.
o
Juvenile court’s jurisdiction over child abuse and neglect is called “dependency jurisdiction” because the
child victims become “dependents” of the state.
Stages of Intervention
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2 forms: (1) summary seizure  occurs when a court determines that an emergency exists and orders (in an ex parte
hearing) that the child be immediately removed from the home & (2) assertion of temporary custody
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Yearning for Zion Problem
Was the Texas CPS Department acting within its statutory authority in removing these children from their homes?
Were the actions of CPS officials following the raid in compliance with their statutory duties?
What is the likelihood that a Texas juvenile court will be able to assert jurisdiction over these children?
Suppose that CPS does determine that protective action on behalf of these children is warranted. What actions should
CPS take?
Does each child have the right to an attorney?
What legal response should CPS anticipate from the parents' attorneys if the court asserts jurisdiction and how should
CPS respond?
What should be the appropriate disposition of this case?
Constitutional Right to Family Integrity

The right to family integrity is protected by substantive due process.
26
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SC cases of Meyer v. Nebraska and Pierce v. Society of Sisters, established broad liberal principles of family autonomy
in the face of government intervention. These foundational cases affirm that parents have a constitutional right to the
care, custody, and control of their children. However, this parental right is not absolute. In Prince v. Massachusetts, the
Supreme Court established that a state has the right to intervene to remove children from the home in cases of child
endangerment. The source of that right is the state’s parens patriae power.
Standards to Guide the Operation of a Foster Care System After Removal

Two ways a minor can leave foster care are (1) to be returned to his natural parents; or (2) to be adopted, which requires
either the consent of the natural parents or termination of parental rights.
Guiding Questions
-How long does the oversight of a family/parent-child relationship/jurisdiction continue or endure?
-Court intervention as in state intervention.
-When should juvenile jurisdiction end in the case of abuse and neglect?
The Child’s Right to a “Family”
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Constitutional protections for parents to care for their children without unreasonable state interference

However, a child’s right to family integrity is not clearly established.

For foster children and foster parents, an additional hurdle is the need to demonstrate that their relationship is sufficiently
similar to a parent-child relationship to be worthy of constitutional or statutory protection.
Smith v. Organization of Foster Families for Equality and Reform (OFFER) 
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“It is one thing to say that individuals may acquire a liberty interest against arbitrary governmental interference in the
family-like associations into which they have freely entered, even in the absence of biological connection or state-law
recognition of the relationship. It is quite another to say that one may acquire such an interest in the face of another’s
constitutionally recognized liberty interest that derives from blood relationship, state law sanction, and
basic human right – an interest the foster parent has recognized by contract from the outset.”
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Justice Stewart, concurring --o
“[A]ny case where the foster parents had assumed the emotional role of the child’s natural parents would
represent not a triumph of the system, to be constitutionally safeguarded from state intrusion, but a failure.”

Foster parents challenge the procedure because they say it is not significant enough to recognize their liberty interest –
child has been with them for a year (psychological tie is created between the child and the foster parents) and they have
fulfilled the duties required and they’ve grown fond of the child, and after this amount of time, the procedures were
deficient to protect what they were arguing was a liberty interest that emerged from the relationship and that deserves
recognition by the law.
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Do foster parents have a constitutionally protected liberty interest in the child that the state placed with them?

The court talked about the idea of a liberty interest but did not confirm or deny if there is one, but these procedures are
sufficient to protect this unspecified interest.
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The procedure did not violate due process.
Sibling Relationships: Liberty Interest?
Exit from Foster Care: The Aging Out of Older Foster Children
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Ocean v. Kearney 
o
P brings claims alleging that his substantive due process and procedural due process rights were violated when
Ds, in their official capacities as executives in a state agency, the Florida Department of Children and Family
Services, ended P’s foster care benefits when P reached the age of 18 without previously affording P notice and
an opportunity to be heard.
o
Court doesn’t find a substantive due process right but finds a state procedural due process right that he is owed
a benefit (property right in that benefit).
Termination of Parental Rights (TPR): Procedural Safeguards
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Reasonable Efforts Requirements
o
In re Ty M. 
o
State must establish, among other things, that for more than a year after the child entered state custody, the
agency made diligent efforts to encourage and strengthen the parental relationship.

AACWA 42 U.S.C. §671
o
…[R]easonable efforts shall be made to preserve and reunify families –
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(i) prior to the placement of a child in foster care, to prevent or eliminate the need for removing the
child from the child’s home; and
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(ii) to make it possible for a child to safely return to the child’s home…
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O.C.G.A. 15-11-310(a) – Statutory Grounds for Termination
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O.C.G.A. § 15-11-310(b) – Best Interests of Child
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Standard of Proof – Santosky v Kramer
o
Held: NY family Court’s act “fair preponderance of the evidence” standard for determining permanent neglect
denied due process to parents where TPR is at stake.” (Before a State may sever completely and irrevocably the
27
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rights of parents in their natural child, due process requires that the State support its allegations by at least clear
and convincing evidence).
Right to counsel for parents – Lassiter v. DDS
o
Held: DPC does not give biological parents a right to counsel in every parental termination proceeding. The
decision to appoint counsel should be made by the trial court on a case by case basis, balancing the parents’
interests, the state interest, and the risk of error.
When the state’s reasonable efforts to keep a family together fail, the state may move to terminate parental rights.
Two state interests are at stake in parental rights termination proceedings: (1) a parens patriae interest in preserving and
promoting the welfare of the child and (2) a fiscal and administrative interest in reducing the cost and burden of such a
proceeding.
o
As parens patriae, the State’s goal is to provide the child with a permanent home; yet while there is still reason
to believe that positive, nurturing parent-child relationship exist, the parens patriae interest favors preservation,
not severance, of natural familial bonds.
Whose Line/Role Is It Anyway?  Education

Right to be Educated
o
Individual/specific rights
o
Through roles and responsibilities of parent, child, and the state
o
Duty of Education (one of the hallmark/common law duties of parents)
o
All states have compulsory education laws for children of designated ages, usually between 5 and 17.
o
The education does not have to take place in a public school if an alternative private school or home-school
meets minimum education standards.
o
Respecting right of parent to direct the upbringing and education of the child under their control.
o
o
State’s interest  State acts in best interest by providing some ability/opportunity for reasonable attainment
for educational achievement at some level (compulsory education laws), reinforces, and regulates parents’ duty
of education of the child.
Does the state have a constitutional duty to provide for a free public education? Is that also part of the states’
responsibility?
San Antonio Indep. Sch. Dist. V. Rodriguez 




Education is not a fundamental right for purposes of strict scrutiny analysis.
“Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in
complete agreement with the conclusion of the three-judge panel below that "the grave significance of education both
to the individual and to our society" cannot be doubted. But the importance of a service performed by the State does
not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection
Clause.”
Supreme Court held that education is NOT a “fundamental right” ; i.e., the right to education is not guaranteed for
purposes of requiring strict judicial scrutiny under the Equal Protection Clause.
BUT, this court left open, however, the possibility that a state would violate equal protection if it adopted a system that
absolutely denied all educational opportunities to any of its children.  this issue was faced in Plyler v. Doe.
[AKA --- if it is a fundamental right strict scrutiny is applied].
[HOWEVER, there is no fundamental/constitutional right to education, but education is something everyone is concerned with at
once; it is one of those generally relevant and of interest topics at all times  debate still continues as to state’s responsibility as to
whom and why].
Plyler v. Doe 
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“Public education is not a "right" granted to individuals by the Constitution. San Antonio Independent School Dist.
v. Rodriguez, 411 U.S. 1, 35 (1973). But neither is it merely some governmental "benefit" indistinguishable from other
forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the
lasting impact of its deprivation on the life of the child, mark the distinction.”
Mexican children who had entered US illegally and resided in Texas sought injunctive and declaratory relief against
exclusion from public schools pursuant to a Texas statute and school district policy  a state action which results in an
entire class of children’s’ failure to access education
Court invalidated a Texas statute that denied funds for a free education for undocumented school-age alien children.
Threshold Question Does the Constitution even apply to non-citizen individuals in the country? If you are here, you
are protected by the laws of this country and the Constitution of this country. Constitutional protection afforded by due
process and equal protection do apply if you are on U.S. soils.
Facts  TX wants to exclude illegal aliens from public education because they don’t have to pay taxes so they are not
entitled to education paid for by tax money; they are more likely to leave, so the benefit they receive from US education
won’t stay in the US; resources are spread too thin.
Question  Whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to
undocumented school-age children the free public education that it provides to children who are citizens of the United
States or legally admitted aliens.
Ruling  There is no Constitutional right to an education, BUT once the state provides ANYONE with an education, it
28
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must provide EVERYONE with an education
Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment protects the rights of
undocumented immigrants to equal access to public education.
Held it was unconstitutional to deprive immigrant children who lacked legal status of a public-school education.
SC rejected the claim that illegal aliens were a suspect class.
Once a state provides ANYONE with an education, it must provide EVERYONE with an education
Intermediate scrutiny would apply here; rational basis, the idea of education not being a fundamental right, but being
greater than some of the other benefits is going to warrant intermediate scrutiny. (what is the weight of the arguments
to overcome that kind of scrutiny) --- standard – intermediate scrutiny – can you justify weighing those interests to
come to your conclusion.

Blackmun, J., concurring --o
“Other benefits provided by the State, such as housing and public assistance, are of course important; to an
individual in immediate need, they may be more desirable than the right to be educated. But classifications
involving the complete denial of education are in a sense unique, for they strike at the heart of equal
protection values by involving the State in the creation of permanent class distinctions.”

Burger, C.J., dissenting --o
“Denying a free education to illegal alien children is not a choice I would make were I a legislator. Apart from
compassionate considerations, the long-range costs of excluding any children from the public schools may
well outweigh the costs of educating them. But that is not the issue; the fact that there are sound
policy arguments against the Texas Legislature's choice does not render that choice an unconstitutional one.”

History Repeats Itself…
o
“Even if the State found it expedient to control the conduct of adults by acting against their children,
legislation directing the onus of a parent's misconduct against his children does not comport with
fundamental conceptions of justice.”
PROBLEM
Rebecca, a junior high school student in one district, frequently ran away from home. Eventually she began living with her
boyfriend's parents, who reside in another school district. Rebecca's parents have given the boyfriend's parents power of attorney
and the state human resources agency, who has been involved with the family because of Rebecca's departures from home,
determined that it was in her best interest to live with her boyfriend's parents.
School officials in the district maintain a strong policy against enrolling students whose parents reside in other districts, in part to
prevent overcrowding due to "white flight" from inner-city schools. They refuse to admit Rebecca unless the boyfriend's parents
are declared the young woman's guardians. Her parents are unwilling to go that far and bring suit alleging that the admissions
policy violates the Equal Protection Clause.
What arguments might be made on both sides?
Where to start:
-Can start with School/State interest  financial? Overcrowding? Economic? Discipline matter/injury where
they need parental autonomy?
Parents interest 
-Biological/legal parents?
-Boyfriend’s parents with power of attorney  (Moore v. City intact family unit worth staying intact; no need to
have intrusion)
Considerations under the Equal Protection Clause  classes of children in foster who is one defined class (note Smith v
offer – foster parents are just extensions of the state, no compensation for their role directly and themselves, as individuals don’t
hold any rights in terms of the child)
-NOTE: Plyler – does it apply to colleges? Well the state has already fulfilled their duty, argument for it should apply to primary
education and high school; also college education isn’t for everyone.
-Also note ----- strict scrutiny is for protected class (undocumented immigrants are not protected)
PROBLEM
Under state law, undocumented immigrants are not classified as residents for purposes of in-state tuition at state colleges and
universities. They must therefore, pay tuition at the much higher out-of-state rate. An undocumented immigrant who has lived in
the state since she was six months old and who graduated with honors from a state high school has challenged this tuition rule,
alleging that it violates Plyer.
What arguments should her lawyer make on her behalf?
How should the attorney for the state respond?
Board of Education v. Rowley --- [first SCOTUS special education case]
Handicapped Children

Handicapped children DO have a right to a “free and appropriate public education.”
29
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“We therefore conclude that the ‘basic floor of opportunity’ provided by the [Education for All Handicapped Children]
Act consists of access to specialized instruction and related services which are individual designed to provide
educational benefit to the handicapper child.”
When it fulfills and provides that public education… what is the nature of the service provided?
ACCSS was the key, not equal opportunity.
Meaning of “appropriate” and how to determine if school has held up its obligation to provide handicapped children
with free and appropriate education.
“As this very case demonstrates, parents and guardians will not lack ardor in seeking to ensure that handicapped
children will receive all of the benefits to which they are entitled by the act.”
State is not required to provide “best option” for the child.
Free Public Education

PARC v. Commonwealth 
o
Class action suit on behalf of 14 children with developmental disabilities who had been denied access to
public education in Pennsylvania, under a state law that specifically allowed schools to exclude children who
had no reached a “mental age of 5 years” by the time they should be enrolling in first grade. Ultimately the
state of Pennsylvania was enjoined from denying any child up to age 21 admission to a public school program
“appropriate to his learning capacities”, or from having his educational status changed without first being
notified of and given the opportunity for a due process hearing.

Mills v. Board of Education of District of Columbia 
o
Class action suit on behalf of seven school-age children who had been denied placement in a public
educational program for substantial periods of time because of alleged mental, behavioral, physical or
emotional disabilities. The Court held that no child could be denied a public education because of “mental,
behavioral, physical or emotional handicaps or deficiencies.” Court further noted that D’s failure to provide
such an education could not be excused by the claim of insufficient funds.
Notes:
If state has a duty to provide education, does a child have a right to education?
Minimum – access to educate, but the rest is subject to what state you are in, quality, etc.
Source of parents authority of parents right to direct the care and upbringing of their children? How much weight does that interest
have?
Framing we give to that particular right? Fundamental substantive liberty interest – constitutional protection – immediate contest
created between states interest in cultivating self-sufficient people and a parent’s interest in directing that same very thing…. So
where is the child’s interest? Do they even have one?
Rights being autonomy claims. Education might not seem like a right, but an interest.
How are the children’s interest represented? By proxy through state and parent?
Mark H. v. Lemahieu 

Parents, both individually and as guardians ad litem for their autistic daughters, brought action against state Department
of Education and various school officials in their official capacities for damages for alleged violations of the Individuals
with Disabilities Education Act (IDEA) and the Rehabilitation Act (§ 504) regarding both acts’ requirements for “free
appropriate public education” (FAPE).

FAPE v. FAPE – if you hold a fundamental right to education, and are handicapped what are you expecting the state to
provide? Statutory provision of the state’s obligation to provide education and state’ duty and responsibility in this context
specifically.
REMEDIES 

IDEA  injunctive relief

504  injunctive relief, compensatory damages for past violations
PROBLEM
Alice Robinson, a profoundly deaf child, is a third-grader in the local public school. Her school has few services in place for deaf
children, and school officials sought to have her transferred to the state residential school for the deaf, located 120 miles from
Alice's home. The residential school has better programs and a larger, more expert staff than is or can be made available in the
local school and will provide Alice the best educational opportunities. Her parents, however, wish Alice to remain at the local
school.
What arguments might be made by Alice's parents?
What arguments might be made in response by the school?
REVIEW: think about the states’ interest in providing public education  more educated citizens, enable them to contribute to
their community/society, preparation for self-sufficiency, participation in productive ways --- economic, civic education,
participating in the political system in knowledgeable and informed way
o
Through states’ parens patriae authority, they have a duty… how does that conflict with parents’
interests/rights?
30
The Judicial Allocation of Power Between Parents and the State: Right to Control Educational Content
Meyer v. Nebraska 

“The American people have always regarded education and acquisition of knowledge as matters of supreme importance
which should be diligently promoted. . . . Corresponding to the right of control, it is the natural duty of the parents to
give his children education suitable to their station in life; and nearly all the States including Nebraska, enforce this
obligation by compulsory laws.”

State statute criminalizing the teaching of any language besides English to primary school children violated the Due
Process Clause of the Fourteenth Amendment of the U.S. Constitution.

State imposed language requirements for primary school children that Meyer challenged on grounds that they violated
the Fourteenth Amendment  whether the statute as construed and applied unreasonably infringes the liberty
guaranteed to the Plaintiff in error by the Fourteenth Amendment.

The statute is unconstitutional because it lacks a rational basis. The Court reasons that, although the object of the
legislation is legitimate, the means exceed the proper limitations on the power of the state and conflict with the
teacher’s Fourteenth Amendment right to due process (liberty to engage in his occupation) and the parents’ right to
control the education of their children.

What is the standard of scrutiny applied here? (NOT strict), but reasonable relationship = rational basis.
Pierce v. Society of Sisters 
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“The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled
with the high duty, to recognize and prepare him for additional obligations…”
Right to direct the upbringing and education of children under parental control.
Challenged Act: requires every parent, guardian or other person having control or charge or custody of a child between
8 and 16 years to send him “to a public school for the period of time a public school shall be held during the current
year” in the district where the child resides; and failure to do so is declared a misdemeanor.
The two organizations: Society of Sisters and Hill Military Academy
o
Argue that the statute interferes with their ability to engage in their chosen business and violates its
Fourteenth Amendment rights.
Court, relying on Meyer v. Nebraska, concludes that the Act unreasonably interferes with the liberty of parents and
guardians to direct the upbringing and education of children under their control.
State doesn’t have an absolute right around education, but state has to provide education, but parents can choose
public or private (state just has to make the education available); but state cannot direct the mode/institution in which
the parent places the child, the parents choose the avenue in which they follows the compulsory education laws.
Compulsory education is the extent of the state’s regulation, parent’s interest is then to inform what that looks like for
the child.
State statute requiring children to attend public schools violates the Due Process Clause of the Fourteenth
Amendment.
PROBLEM
A nationwide "parental rights" movement has been gaining momentum to persuade legislators to amend state constitutions or to
enact legislation to provide increased parental authority over children's education and discipline. The movement stems in part
from concerns about controlling the teaching of sex education, AIDS and homosexuality. You are a legislator in a state legislature
that is considering passage of the following state constitutional amendment:
Section 26 of Article 1 of the State Constitution shall provide that parents have a fundamental right to raise, educate, and care for
their children; require the legislature to protect parental rights by appropriate legislation; and exclude application of the new
section to minors emancipated by general law or laws protecting minors from neglect, abuse or criminal wrongdoing.
The amendment provides that parental rights supersede children's rights when in conflict.
What arguments would you make in favor of the proposed legislation?
Against?
Does such legislation merely reaffirm Meyer and Pierce or does it grant parents additional rights?
Prince v. Massachusetts 
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“The state’s authority over children’s activities is brooder than over like actions of adults. This is particularly true of
public activities and in matters of employment. A democratic society rests, for its continuance, upon the healthy, wellrounded growth of young people into full maturity as citizens, with all that implies.”
Announced a limiting principle  the state’s interest in protecting children from harm (pursuant to the parens patriae
doctrine) serves as a limitation on parental autonomy.
State has an independent interest of protecting children from harm, so now balancing interests between state and
parent with respect to child’s well-bring and welfare.
Such state regulation if it was applied to an adult standing on a street corner handing out religious pamphlets would
not be constitutional, but it is constitutional when it is directed to children.
State has an interest in protecting children, also parents do, the aunt here is standing in loco parentis (apply parental
31
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
prerogative to her), the states’ interest trumps her interest in making the decision for the child.
Competition between parent and state
Child labor is an inherent evil from perspective of the child representing harm to children globally, but state can
intervene, respective to child, when (threshold the state can intervene) when there is a threat of imminent harm, or
actual harm 
o
what is the harm confronting the girl in this case?
Wisconsin v. Yoder 
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“No one can question the State’s duty to protect children from ignorance but this argument does not square with the
facts disclosed in the record. The Amish community has been a highly successful social unit… [they] are productive and
very law-abiding members of society; they reject public welfare in any of its usual modern forms…”
Compulsory education past 8th grade starts to diminish the state’s interest, however, under 8th grade education the
states; interests are very strong.
Members of the Amish challenge the constitutionality of a state’s compulsory attendance law that requires them to
send their children to school until age 18.
Parents of the kids, ages 14 and 15, refuse to send their children to public school any longer.
“The state’s authority over children’s activities is broader than over like actions of adults. This is particularly true of
public activities and in matters of employment. A democratic society rests, for its continuance, upon the healthy, wellrounded growth of young people into full maturity as citizens, with all that implies.”
Such state regulation if it was applied to an adult standing on a street corner handing out religious pamphlets would
not be constitutional, but it is constitutional when it is directed to children.
State has an interest in protecting children, also parents do, the aunt here is standing in loco parentis (apply parental
prerogative to her), the states’ interest trumps her interest in making the decision for the child.
Competition between parent and state
o
Child labor is an inherent evil from perspective of the child representing harm to children globally, but state
can intervene, respective to child, when (threshold the state can intervene) when there is a threat of
imminent harm, or actual harm.
Homeschool
Jonathan L. v. Superior Court 

States’ interest elevated over parents because of harm

Court considered a case that arose out of a dependency proceeding in which California charged the parents with abuse,
neglect, and failure to prevent sexual abuse.

Children were being homeschooled by the parents who were alleged to be neglectful.

Court held that the state statute permitted homeschooling, but that permission could be overridden to protect the
safety of a child in a dependency proceeding.
o
The holding was limited to dependency (or abuse and neglect) proceedings, where the safety of the child was
at issue.

HELD: (1) California statutes permit home schooling as a species of private school education; and (1) the statutory
permission to home school may constitutionally be overridden in order to protect the safety of a child who has been
declared dependent.
PROBLEM
You represent a County School Board. The principal of a middle school in your district has approached you with a problem: The
parents of two eighth grade students belong to the Old Order Amish religion and wish to withdraw the children from school. Both
children are fourteen years old and have expressed to you their desire to continue attending school. One of these children is
Anderson. Anderson has been at the top of his class and has demonstrated unusually good abilities in mathematics and science.
His standardized test scores in those subjects place him in the top 1% of the country. Anderson says he wants to be a scientist
when he grows up.
Anderson's twin brother Ronald has average grades but is very popular. Ronald was elected class president and is active in choir
and other programs. Ronald wants to remain in school to be close to his friends.
How would you advise the principal as she advocates both boys to remain in school?
PROBLEM
Tina Smith, age 15, reported to her pastor that she had suffered physical and emotional abuse inflicted by her father. An
investigation by DFS revealed that Tina and her siblings were all home schooled by their mother rather than educated in a public
or private school. Mr. & Mrs. Smith gave various reasons for not sending the children to school, including their religious beliefs,
disagreement with public school philosophy, and exposure to "bad influences." DFS discovered that the family had a history of
charges of physical and sexual abuse and neglect.
DFS filed a dependency petition. The children's attorney asked the juvenile court to order that the children be enrolled in public
or private school, contending that the home schooling was "inferior" and that keeping children at home deprived them of social
interaction with people outside the family who could provide help if something was amiss and the ability to develop emotionally.
The juvenile court declined to issue the order based on the view that the parents have a constitutional right to home school their
children.
32
How does this ruling square with Meyer, Pierce, Prince, and Yoder?
How should the state accommodate the parents' right to home school their children verses the state's policy of child protection?
[NOTE: above is mode of education… now turning toward curriculum content Right to Control Educational Content]
Curriculum Content
Parker v. Hurley 

Parents of public elementary school children sued the school district, asserting violations of their and their children’s
rights under the Free Exercise Clause and their substantive due process rights pursuant to the Fourteenth Amendment.

Exposure to the materials in question did not threaten the parents’ ability to rear their children in the Judeo-Christian
tradition  students were exposed to books portraying different types of families (gay families)

Court recognized that while parents can choose between public and private schools, parents do not have a
constitutional right to direct how the public schools instructs their children.

Can’t stop public school from exposing children to certain views; public schools determine the curriculum

State has an interest in providing school and cannot without the whole, parent has a duty to educate, state interest in
enforcing that duty (being equipped for society, political, self-sufficient), here the parents are objecting to children’s
exposure through state’s selection of content, and the result is that the state gets to control and prevail over the parents

State controls content over the objections of the parents

Competing interests balancing


Court addressed parental decision-making regarding their children’s education in Meyer v. State of Nebraska  Court
struck down a Nebraska statute that prohibited instruction in certain foreign languages in private schools on the basis
that the restriction materially interfered with the power of the parents to control the education of their children, as well
as with the opportunity of children to acquire knowledge. It found a liberty interest protected by the Fourteenth
Amendment which encompasses the right “to marry, establish a home and bring up children.”
Two years later, in Pierce v. Society of Sisters, the Court held that a state could not require children to attend public,
rather than private, schools, finding no reasonable relationship between the statute and a legitimate state purpose. It
again spoke in broad terms of, “the liberty of parents and guardians to direct the upbringing and education of children
under their control.”
Parents’ Right to Control the Education of their Children 

Public Education as an Important Governmental Function  Although public education is not a “fundamental right”
under the United States Constitution, the states’ provision of compulsory public education is a well-recognized exercise
of its welfare power and considered one its most important governmental functions.

Parents’ Fundamental Liberty to Control Children’s Education  A long line of United States Supreme Court case law
guarantees parents’ Fourteenth Amendment liberty to control the education of their children, including opting out of
public schooling and providing adequate education in other ways such as foreign language schools (Meyer v.
Nebraska).
o
The same long line of cases prohibit unreasonable regulation (standard developed in Pierce) of the
curricula, texts, and teacher qualifications of these alternate educational options.

In Wisconsin v. Yoder, SCOTUS reaffirmed the reasonableness standard for regulating parents’ education choices.

Parents’ First Amendment Right to Control the Education of their Children  According to Wisconsin v. Yoder, the
state’s burden, in justifying compulsory public schooling, may be even higher when parents’ claim religious objections
grounded in both fundamental parental rights and their First Amendment Free Exercise right to raise their children in
their religious traditions.
o
Wisconsin v. Yoder is important because it holds that Free Exercise claims for alternative educational
options may be treated more deferentially than mere parental rights cases.
o
When state regulations impinge upon First Amendment Free Exercise rights --- at least sometimes where
rights are of great magnitude or at great risk, the state, to prevail, must make a particularized showing of
substantial reasons.
Children’s Right to Receive an Education 

The Nature of Children’s Educational Rights  Children have no constitutional right to an education under the United
States Constitution. But SCOTUS has recognized that the provision of compulsory public education is one of the state’s
most important functions.
o
“Public education is not a "right" granted to individuals by the Constitution. San Antonio Independent
School Dist. v. Rodriguez, 411 U.S. 1, 35 (1973). But neither is it merely some governmental "benefit"
indistinguishable from other forms of social welfare legislation. Both the importance of education in
maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the
distinction.”
Children’s Educational Rights and the Equal Protection Clause  While the Equal Protection Clause guarantees that all children
have access to their state’s public educational system, it does not guarantee equivalent or equal quality education to them all.
What Voice for the Child? Children’s Right to Express Their Views: Expression/Access
Wisconsin v. Yoder
33


Douglas Dissent --- thought we should hear what the children think/feel
o
“It is the future of the student, not the future of the parents, that is imperiled in today’s decision. If a parent
keeps his child out of school beyond grade school, then the child will be forever barred from entry into the new
and amazing world of diversity that we have today.”
o
Must ascertain the ability to hear the children’s views on their religion and what not.
o
“The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we
honor today.”
Troxel v. Granville
Stevens Dissent --o
“Cases like this do not present a bipolar struggle between the parents and the State over who has final authority
to determine what is in a child’s best interests. There is at minimum a third individual, whose interests are
implicated in every case to which the statute applies  the child…”
NOTES:

Juvenile Court Jurisdiction
o
Juvenile Court Proceedings

Child neglect or abuse: dependency jurisdiction  every state has a statutory provision allowing
the court to assume jurisdiction over children who are thought to be endangered because of
parental neglect or abuse  once jurisdiction is established, the court is empowered to remove the
child from parental custody or take other steps to protect the child.

Delinquency jurisdiction  take jurisdiction over a young person who is shown to have violated
criminal law  i.e., to have committed an act that, for an adult, would have been a crime.

Noncriminal misbehavior of minors: children in need of supervision  juvenile courts may hear
claims that a young person is “in need of supervision” or is engaged conduct regarded as quasicriminal  e.g., truancy or refusal to obey parental commands.
Children’s First Amendment Rights
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First Amendment and Schools
Child’s rights outside school setting vs. child’s rights inside school setting.
Ginsberg v. New York
Section 484-h of New York’s Penal Law (1968)
o
Harmful to minors means that quality of any description or representation, in whatever form, of nudity, sexual
conduct, sexual excitement, or sadomasochistic abuse, when it:

(i) predominantly appeals to the prurient, shameful or morbid interest of minors, and

(ii) is patently offensive to prevailing standards in the adult community as a whole with respect to
what is suitable material for minors, and

(iii) is utterly without redeeming social importance for minors.
Case recognizes that the state has a legitimate interest in the regulation of indecent speech in order to support the parental
role in childrearing. (State has an independent interest --- Prince theme)
Constitutionality on its face of a NY criminal obscenity statute which prohibits the sale to minors under 17 years of age of
material defined to be obscene on the basis of its appeal to them whether or not it would be obscene to adults.
Law that bans sale of sexual material deemed obscene due to appeal to teenagers is constitutional
o
Parents/teachers who have responsibility for rearing children are entitled to support of law designed to help
them with that
o
But, other content restrictions undergo strict scrutiny (if not sex-related) and almost never pass
Case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child.
Criminal statute prohibiting the sale of obscene material to minors whether or not obscene to adults upheld despite First
Amendment challenge
Justice Stewart, concurring --- proposes a grander theory:
o
“I think a state may permissibly determine that, at least in some precisely delineated areas, a childlike
someone in a captive audienceis not possessed of that full capacity for individual choice which is the
presupposition of First Amendment guarantees. It is only upon such a premise, I should suppose, that a State
may deprive children of their rightsthe right to marry, for example, of the right to votedeprivations that
would be constitutionally intolerable for adults.”
o
Undefined and unlimited approval of state censorship in this area denies to children free access to books and
works of art to which many parents may wish their children to have uninhibited access.
Brown v. Entertainment Merchants Assn. 
o
“No doubt that a state possesses legitimate power to protect children from harm, but that does not include a
free-floating power to restrict the ideas to which children may be exposed. Speech that is neither obscene as to
youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from
ideas of images that a legislative body thinks unsuitable for them.”
o
"[W]e note our doubts that punishing third parties for conveying protected speech to children just in case their
parents disapprove of that speech is a proper governmental means of aiding parental authority.
o
“Not all of the children who are forbidden to purchase violent video games on their own have parents who care
whether they purchase violent video games. While some of the legislation’s effect may indeed be in support of
34
o
o
NOTE:



what some parents of the restricted children actually want, its entire effect is only in support of what the State
thinks parents ought to want.”
Alito, J., concurring --
“We should make every effort to understand the new technology. We should take into account
the possibility that developing technology may have important societal implications
that will become apparent only with time. We should not jump to the conclusion that new
technology is fundamentally the same as some older thing with which we are familiar.”
Whether a California law imposing restriction on violent video games comports with the First Amendment.

Because the Act imposes a restriction on the content of protected speech, it is invalid UNLESS
California can demonstrate that it passes strict scrutiny  that is, unless it is justified by a compelling
government interest and is narrowly drawn to serve that interest.

The State must specifically identify an “actual problem” in need of solving, and the curtailment of free
speech must be actually necessary to the solution.
Role of the State  The State’s dual interests: effects on children.
o
According to Ginsberg, two interests justify limitation on availability of sexually explicit materials to minors:
(1) the importance of the parental role in the rearing of children and (2) the state’s “independent interest in
the well-being of its youth,” specifically youth’s “ethical and moral development.”
The Role of parents  The state versus parental role.
o
Ginsberg recognizes that the state has a legitimate interest in the regulation of indecent speech in order to
support the parental role in childrearing.
o
The California legislation at issue in Brown also recognized that the state has legitimate interest in regulating
violent video games to support the parental role in childrearing.
Protection of Children From Sexual Exploitation: Child Pornography and Internet Materials
o
New York v. Ferber

SCOTUS upheld a state statute prohibiting distribution of materials that depict a sexual
performance of a child under age 17.

The Court held that child pornography even if not technically obscene, falls outside First
Amendment protection because the state has a compelling interest in protecting children’s
physical and psychological welfare by preventing their use in pornography.

This case limited the application of child pornography statutes to depictions of live performances
and required that any ban on the material must have a scienter requirement.
PROBLEM
Congress enacted the Family Movie Act (FMA) as part of the Family Entertainment and Copyright Act (FECA), which protects
technology that filters sex, violence, and profanity on DVD movies by exempting such technology from federal copyright laws.
The legislation permits technology companies to sell DVD players for home use that produce "sanitized" versions of DVDs that
delete or mute sexually explicit and violent audio or video content that some persons find objectionable. Several major movie
studies, civil liberties associations, and parents' groups challenge the FMA as unconstitutional.
What result?
Does the FMA create a variable standard of obscenity that would be constitutional based on Ginsberg?



Setting of being in the school or out of the school really impacts how the decision is made.
In the school setting, courts treat first amendment rights a little differently from how they would treat them outside the
school setting.
TINKER is where you start…. For first amendment rights in school and also for 4th amendment search and seizure.
o
Students have rights in school, but the issue is figuring out what that right is and looks like and how to balance
that with the school’s interest.
Expression/Access  Inside School Setting

Tinker v. Des Moines Independent Community School District 
o
"It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate."
o
"In order for the State in the person of school officials to justify prohibition of a particular expression of opinion,
it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort
and unpleasantness that always accompany an unpopular viewpoint. Certainly, where there is no finding and no
showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the
requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained."
o
First Amendment claims of the students and free speech on one side, what does the school argue (what are their
interest they are trying to get enforced and protected?)

Disturbances of student learning

Threat of violence
o
Do schools have a legitimate interest in maintaining order in the schools? YES (purpose and importance of
school, maintain order and make sure learning environment is good and productive) but also the classroom is
the “market place of ideas” but schools should also promote conversation, dialogue, discussion and ideas
o
Free speech is a fundamental right of being a citizen of our country, and what better way to learn and engage in
that, in a safe and productive way, than in our public schools.
35
o
o
o
o
o
o
o
o
o
o
o
o
o
o
STANDARD: “materially and substantially interferes with the requirements of appropriate discipline in the
operation of the school” (Burnside v. Byars)
Lower courts used a “reasonableness” standard and found that their first amendment rights were not violated,
but supreme court adopts a higher standard in order to give a stronger protection to student’s rights.
The kind of speech in question here: “pure speech” expressive conduct so speech for the purposes of the First
Amendment, trying to convey a message.
Political speech is at the very heart of the First Amendment and is entitled to the highest protections.
Black, J., Dissenting --
Concern that we are handing over the school to control the students

Was there actually any disruption? Majority said none, no evidence at all that there was any
disruption to the environment.

Black claims that the arm bans did actually cause disruption in a classroom, delayed the learning in
order to talk about the arm bands.

"The original idea of schools, which I do not believe is yet abandoned as worthless or not of date, was
that children had not yet reached the point of experience and wisdom which enabled them to teach all
of their elders. It may be that the Nation has outworn the old-fashioned slogan that ‘children are to be
seen not heard,’ but one may, I hope, be permitted to harbor the thought that taxpayers send children
to school on the premise that at their age they need to learn, not teach."
“The classroom is peculiarly the ‘marketplace of ideas. ’The Nation's future depends upon leaders trained
through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues,
(rather)than through any kind of authoritative selection.”
Facts: Children decided to object to Vietnam war by wearing black armbands to school – school created a policy
that students were required to remove the armbands, and refusal would lead to suspension.
Unless the conduct substantially interferes with the operation of the school or with the rights of other students,
the school doesn’t have a right to restrict the speech.
Undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of
expression
Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to
avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.
“substantial disruption” analysis
Schools may not restrict student speech unless necessary to avoid a material and substantial interference with
the work of the school or school discipline.
Several junior and senior high school students claimed free speech rights to make political protests at school,
and decided to wear black armbands after deciding at a group meeting.
The Court found that the conduct of the children had no disruptive effect
THINK: What types of student speech constitute “political expression” that is constitutionally protected under Tinker?
REMEMBER: Schools stand in loco parentis while children are there is an established legal principal.
“Tinker Trilogy”



Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503(1969) 
o
Wearing armbands to school in silent protest entitled to First Amendment protection.
o
Pure political speech, not disruptive.
Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675(1986) 
o
School assembly speech containing an elaborate sexual metaphor NOT entitled to First Amendment protection.
o
A high school student was suspended from school for giving a speech at a school assembly deemed by school
authorities to be “obscene and profane” under a school disciplinary rule.
o
A high school senior gave a nominating speech at a school assembly (in favor of a classmate running for office)
that contained an elaborate sexual metaphor.
o
The student speaker was suspended for three days and his name was removed from the list of approved
graduation speakers for violating the school’s “disruptive-conduct rule.”
o
The SC held that the student’s conduct was not entitled to First Amendment protection and that the school acted
within its authority in imposing sanctions, reasoning that the inculcation of proper values and the protection of
minors are appropriate functions of public education.
o
This case permitted a school to regulate student speech that was not disruptive but merely offensive.
o
“Lewd, vulgar and offensive.”
Hazelwood v. Kuhlmeier, 484 U.S. 260 (1998)
o
Articles published in a student-authored school newspaper NOT entitled to First Amendment protection.
o
A high school principal deleted two articles in the school newspaper concerning teen pregnancy and divorce,
stemming from his concern about the privacy of pregnant students and that of a divorced parent.
o
The Supreme Court disagreed that student staff members’ First Amendment rights were violated by the school’s
censorship.
o
The Court reasoned that a school paper published by students in a journalism class does not qualify as a “public
forum,” and that school officials retain the right to impose reasonable restrictions on school-sponsored activities
provided that the officials’ actions are reasonably related to legitimate pedagogical concerns.
o
Tinker does not apply, according to the Court, because Tinker involved a school’s mere tolerance of student
speech, whereas Hazelwood involved a school’s active promotion of particular student speech.
36

Morse v. Frederick  majority opinion
o
“BONG HiTS 4 JESUS” sign at Olympic torch relay
o
In regard to the foundation question to always ask: IS THIS SCHOOL SPEECH?

Location: why does it matter? Is the speaker on school property? If it wasn’t on campus, the school
couldn’t have even acted. If this isn’t school speech, why does the Supreme Court address this? So
they know which standard to apply.

Decides it is school speech because it was an event authorized by school teachers, during school
hours, there were teachers present, responsible for the supervision and safety of the students, the sign
was facing the school so that other students could see it. Even though technically not on school
property, these reasons lead us to apply the standard from school speech cases.

Drugs – drug use among children is so bad and schools play an important role in discouraging
students to engage in drug use.
o
Court does not apply Tinker standard of material disruption, they say the school has a lot more authority when
preventing and discouraging drug use.
o
Essentially carve out an exception.
o
"The danger here is far more serious and palpable. The particular concern to prevent student drug abuse at issue
here, embodied in established school policy, extends well beyond an abstract desire to avoid controversy."
o
Majority says yes, the “Bong hits 4 Jesus” sign advocates drug use
o
Majority says it was reasonable for the principle to read the sign as advocating for drug use.
o
Thomas, J., concurring --
"Justice Black may not have been “a prophet or the son of a prophet,” but his dissent in Tinker has
proved prophetic. In the name of the First Amendment, Tinker has undermined the traditional
authority of teachers to maintain order in public schools [...] We need look no further than this case
for an example: Frederick asserts a constitutional right to utter at a school event what is either
“[g]ibberish,” or an open call to use illegal drugs. To elevate such impertinence to the status of
constitutional protection would be farcical and would indeed be to “surrender control
of the American public school system to public school students."
o
Alito, J., concurring --
"When public school authorities regulate student speech, they act as agents of the State;
they do not stand in the shoes of the students' parents. It is a dangerous fiction to pretend
that parents simply delegate their authority—including their authority to determine what their
children may say and hear—to public school authorities. It is even more dangerous to assume that
such a delegation of authority somehow strips public school authorities of their status as agents of the
State. [...] For these reasons, any argument for altering the usual free speech rules in the public
schools cannot rest on a theory of delegation but must instead be based on some special characteristic
of the school setting. The special characteristic that is relevant in this case is the threat to the physical
safety of students."
o
Whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when
that speech is reasonably viewed as promoting illegal drug use?

We hold that she may.
o
“The special characteristics of the school environment, and the governmental interest in stopping student drug
use  reflected in the policies of Congress and myriad school boards, including JDHS  allow schools to
restrict student expression that they reasonably regard as promoting illegal drug use.”
o
Whether school authorities can, consistent with the First Amendment, restrict student speech at a school even
when that speech can be reasonably viewed as promoting illegal drug use.
PROBLEMS
Start: Is this expressive speech? If not, then it is not protected by the First Amendment.
If it is expressive speech, then we have to decide whether the school’s action was constitutional? Then we might apply
Tinker, or some of the others we discussed (exceptions: drugs, lewd language, etc.)

What interests/concerns might the school argue.
For each of the following examples, consider whether:





The student conduct constitutes "expressive speech";
The school regulation is constitutional; and
The school regulation serves a legitimate pedagogical objective.
Problem A (Page 115)

A high school student is asked to turn inside-out his T-shirt portraying a three faced Jesus with the wording "See No Truth,
Hear No Truth, Speak No Truth" and "Marilyn Manson." The word "Believe," emphasizing the letters L-I-E is printed on the
back. The school dress code forbids "clothing with offensive illustrations, drug, alcohol or tobacco slogans."

Is this expressive speech? Yes

Is teacher asking him to turn his shirt inside out constitutional under Tinker or any of the subsequent cases?

Court ultimately decided that there was no violation in this case – this t-shirt was allowed to be flipped inside out. Looking
at the language/lyrics of Manson’s songs do promote drug use; not a violation because it promoted drug use.
Problems B-D (Page 115)
37





A student is asked to remove his T-shirt displaying a picture of former President George W. Bush with the phrase
"international terrorist".
First Q – it is not just pure speech, but it also political speech. What does that mean? MOST PROTECTED.
Would punishment or asking the student not to wear it, how would you argue constitutional or not?
Under Tinker or others what would you argue?
Court applies Tinker and sees no evidence of disruption and also finds no evidence of any reasonable fear of any disruption,
it is political speech, entitled to highest protections.

A student is asked to remove her pin of the Palestinian Flag.

A school bans the wearing of Muslim head scarves by female students.
Problems E-F (Page 115)




A school prohibits a transgender high school student from wearing clothes and accessories that are consistent with her
gender identity.
Not really an explicit message, but is it expressive conduct, and therefore speech under the First Amendment or not?
Girl argued that she was communication a message about her very identity, and that it is such an essential message and
should be entitled to protection like political speech.
School has no right to regulate this conduct.
THINK: Does Tinker require evidence of actual disruption or does it leave room for schools to act preemptively when they fear
there might be a disruption?

A school regulates hair length of male students.

A school prohibits the wearing of "sagging pants."
Problem G (Page 115)

A school disciplines two middle school students for wearing bracelets with the message "I ♥Boobies".

The school district contended that the phrase could be regulated as lewd or vulgar.

The students contended that the bracelets promoted breast-cancer awareness.

J.S. ex rel. Snyder v. Blue Mountain School 
o
"Courts must determine when an 'undifferentiated fear or apprehension of disturbance'
transforms into a reasonable forecast that a substantial disruption or material interference will
occur."
o
Brings us back to the idea of location, not school speech, school did not authority to punish students because it
did not happen on school premises/grounds (location).
o
14-year-old eight grader and a friend created a fake MySpace profile of her principal using her parents’ home
computer. The profile did not use the principal’s name but used a photograph of him taken from the school
district’s website.
o
The profile contained profanity-laced statements insinuating that the principal was a sex addict and pedophile.
o
The speech here occurred outside school supervision.
o
If the speech had occurred on campus, it would have been subject to discipline under Fraser.
NOTES:

When student speech occurs outside of school supervision, the speech should receive the same First Amendment
protection as a non-student’s speech.

Speech outside school supervision does not implicate the “essential characteristics” of the school environment that justify
special First Amendment treatment of student speech.

When student speech occurs under school supervision, great deference should be given to administrators’ disciplinary
decisions.

Under Supreme Court precedent, speech on campus can be regulated if it is lewd, advocates drug use, or creates a
“substantial disruption” on campus.
Whose Role?: Medical Decision Making
Minor’s access to contraception

Griswold v. Connecticut 
o
SCOTUS held that a right to privacy can be inferred from several amendments in the Bill of Rights, and this
right prevents states from making the use of contraception by married couples illegal (with respect to adults).
38

Carey v. Population Services Int’l 
o
SCOTUS held that:

“Regulations imposing burden on decision as fundamental as whether to bear or beget a child may be
justified only by compelling state interest and must be narrowly drawn to express only those
interests.”

“Prohibition of distribution of nonmedical contraceptives to persons over 16 except through licensed
pharmacist burdened right of individuals to use contraceptives if they so desired and served no
compelling state interest.”

Court struck down a statute that made it a crime to display or advertise contraceptives, for anyone but
a pharmacist to sell non-medical contraceptive devices to persons over 16 years of age, and banned
the sale of contraceptives to persons under 16.

Prohibition of any advertisement or display of contraceptives was unconstitutional.

AKA aged-based restrictions to contraception.

Right to privacy extends and covers access to contraception for children too

Interests are co-extensive with adults

Fundamental right (strict scrutiny applies) and presumes restrictions are unconstitutional

Government interests that might justify government regulation of minors’ access to contraceptives:
o
If the state has an interest, if they don’t regulate, that is some way promotes sexual activity which is some way is
unwise in societal interest.
o
Procreation – not ready to be a parent, aka shifting the burden to the state.

Tummino v. Hamburg 
o
"While the FDA properly recognizes that cognitive and behavioral differences undermine 'the ability of
adolescents to make reasoned decisions about engaging in sexual intercourse,' the standard for determining
whether contraceptives or any other drug should be available over-the-counter turns solely on the ability of the
consumer to understand how to use the particular drug 'safely and effectively.'
o
Minors have a fundamental right of access to contraceptives and there must be a compelling state interest to
justify any interference with minors’ reproductive choice.
o
Plan B One Step is now available to teens without a prescription.
o
Regulatory environment and administrative procedures trying to promote unrestricted/expanded access to Plan
B in this case.
Minors’ Access to Abortion

RECALL Roe v. Wade  privacy right extends to the personal decision to elect an abortion; trimester framework: the
state does have a legitimate interest during the WHOLE life process, but it is just a matter of when it becomes compelling
to justify intervention

Taking states’ justifications and applying it in the context of minors: (1) minor’s health

Any additional interests worth considering because it is a minor child involved, that would not even matter in the context
of the adult?

Planned Parenthood of Cent. Missouri v. Danforth 
o
"[T]he State may not impose a blanket provision [...] requiring the consent of a parent or person In loco parentis
as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy. Just as with the
requirement of consent from the spouse, so here, the State does not have the constitutional authority to give a
third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to
terminate the patient's pregnancy, regardless of the reason for withholding the consent. Constitutional rights
do not mature and come into being magically only when one attains the state-defined age of
majority."
o
SC extended the fundamental right to choose to have an abortion to minors, striking down a parental consent
statute, although it recognized that states have broader powers to protect minors than adults.

Statute Challenged in Bellotti v. Baird (1979) “Bellotti II”  (statute regarding parental consent)
o
If the mother is less than 18 years of age and has not married, the consent of both the mother and her
parents [to an abortion to be performed on the mother] is required. If one or both of the mother’s parents
refuse such consent, consent may be obtained by order of a judge of the superior court for good cause shown,
after such a hearing as he deems necessary. Such a hearing will not require the appointment of a guardian for
the mother…”
o
“The abortion decision differs in important ways rom other decisions that may be made during minority. The
need to preserve the constitutional right and the unique nature of the abortion decision, especially when made
by a minor, require a State to act with particular sensitivity when it legislates to foster parental involvement in
this matter.”
o
“There are few situations in which denying a minor the right to make an important decision will
have consequences so grave and indelible.”
o
A minor’s right to obtain an abortion could be restricted by requiring the consent of a parent only if the state
provided a procedure for bypassing the requirement.
Do you agree with SCOTUS’ explanation for why minors’ constitutional rights to abortion access are not coextensive with adults?

(1) the peculiar vulnerability of children;

(2) their inability to make critical decisions in an informed, mature manner; and

(3) the importance of the parental role in child rearing.

State in Interest of A.V.P. 
39
o
o
“While this court finds that A.V.P. presented herself as a responsible and mature young lady for her age, we are
not convinced that she is sufficiently mature and well-informed enough to make such a major decision on her
own…”
Pursuing the judicial bypass option in order to obtain an abortion.
PROBLEM
The governor of the State of Blackacre recently signed into a law a bill that would require minors who seek an abortion to adhere
to a detailed procedure [see text on page 124 of textbook].
Assess the constitutionality and policy implications of the new law.
Medical Decision Making: Consent to Treatment
Medical Treatment: Who Speaks for the Child?





As a general rule, informed parental consent is both a necessary and sufficient condition for medical treatment of minors.
Where parents heartlessly neglect their children by failing to provide medical care for no good reason, the state will
intervene to protect the health interests of the child. In some cases, however, parents, object, often on religious grounds, to
particular forms of treatment, thus requiring courts to balance legitimate assertions of parental authority against the
perceived medical needs of the child.
Battery and the Requirement of Informed Consent
o
At common law, only a parent could give consent to medical treatment for a child. The child lacked capacity to
consent. The general rule of parental consent is in accordance with broad notions of family privacy, parental
autonomy, and the importance of familial bonds.
o
Emancipated minors and mature minors may give consent to medical treatment on the same terms and
conditions as an adult.
Statutory Materials: When May a Minor Consent?
Who Pays for Medical Treatment?
o
Child support statutes in many jurisdictions have readily been construed to require the payment of necessary
medical expenses.
o
Government also plays an important role in paying for medical care when parents are too poor to provide
necessary medical treatment.
o
States must continue to provide Medicaid benefits to pregnant women and children.
Questions:
Should there be a bright-line rule that permits adolescents over a certain age to make their own decisions regarding routine
medical care?
Should courts determine whether an adolescent is “mature enough” to make decisions regarding their medical care on a case-bycase basis?
How capable are minors of various ages to understand a diagnosis, the nature and risks of treatment or nontreatment, and
alternatives to treatment and then to give their opinions?
Until what age should parents be financially responsible for their children’s healthcare?
Exceptions and Limitations to Parental Consent Requirements
PROBLEM PAGE 350
12-year-old JP fell off her bike after school at 3:15pm while playing with a friend. Because JP appeared to be in extreme pain, the
friend's mother took her to the hospital emergency room. The friend's mother attempted unsuccessfully to contact JP's mother,
who was out shopping and was not expected to return home until after 6:00pm. JP's father was away on a business trip. Whose
consent, if any, should be required before:
a. The hospital may take x-rays to determine if JP's arm is broken?
b. The doctor may set the fracture, assuming JP's arm is broken?
c. The doctor may administer pain-killers?
Would it make a difference if the adult accompanying JP was a relative? Suppose JP’s parents are divorce and she is injured
during visitation with her noncustodial father – may he give effective consent?






Parents are inaccessible.
Parental consent is unavailable, so then whose call is it?
Does it matter how severe the treatment is? X-rays are nonintrusive, but compare that to surgeries or operations
Routine vs emergency?
The mother of the friend is in loco parentis right now, does she have any say?
Argument for not appropriate to proceed without parental consent? It’s not an emergency, she is not dying, she is just
in pain, so maybe they can wait so they don’t violate the parents’ rights of not obtaining parental consent
40






(b) is more so treatment than diagnosis
If parent denies consent bring up neglect argument (presuming that a parent is going to act in the best interest of the
child)
i.e., you wouldn’t leave the arm broken unsettled or unfixed.
Pain killers – allergy? Addiction, past health hysterical
Pain killer vs. Tylenol
Relative having control over child right now might indicate a relationship of trust from the child’s mother and the care
is not a big leap as compared to a third party
PROBLEMS (Pages 350-351)
Karen is a 13-year-old suffering from irreversible kidney malfunction. She has a kidney transplant, but the transplant has failed.
She is tolerating dialysis (3x/week) poorly, and typically has severe headaches, chills, nausea, and weakness. She is also on
medication and has an extremely restricted diet. She is unable to attend school, is socially isolated, and always feels tired and
uncomfortable. Karen was recently hospitalized after having a high fever for 10 days. With her parents' consent, the doctors
operated and removed the transplanted kidney, the pathology of which indicated that any subsequent transplant would in all
probability fail. Two weeks later, the arteriovenous shunt that had been placed in Karen's arm for hemodialysis was found to be
infected. Part of her vein wall was removed, and the placement of the shunt was revised. Three days later, however the shunt
clotted and closed. For dialysis to continue would require minor (but uncomfortable) surgery. Without dialysis, Karen will die.
With dialysis, she can be kept alive, but her condition will never improve.
a. If Karen and her parents together refuse to permit shunt revision and any further dialysis, must the medical staff accept their
decision? Would it constitute battery if doctors proceed with treatment anyway?
b. Suppose Karen's parents insist on continuing the life-supporting treatment, but Karen objects?
c. Suppose Karen's parents refuse to consent to further treatment, but Karen insists on continuing the treatment?
PROBLEMS (Page 351)
Kevin is a 15-year-old who suffers from extensive neurofibromatosis which caused a large overgrowth of facial tissue. The disease
has not affected Kevin's sight or hearing and does not endanger his life.
Kevin's teachers and doctors all believe that Kevin should have surgery to correct this condition. The surgery will not cure the
disease but an operation will improve both the "function and appearance" of his face. The massive surgery is dangerous and
involves considerable risk. Delaying the operation until Kevin is older will decrease surgical risks but may increase psychological
risks to Kevin.
Kevin's mother is Jehovah's Witness. The mother is not opposed to the surgery being performed, but refuses to give consent for
the blood transfusion that is required for the surgery to be safely performed.
The health commissioner and doctors petitioned the juvenile court to declare Kevin a "neglected child" so that a guardian can
consent to the operation and transfusion.
Assume the relevant state statute permits the juvenile court to take jurisdiction when a parent "neglects or refuses when able to
do so to provide or allow medical, surgical, or other care necessary for a child's health." You are the judge. What would you
decide?
PROBLEM (Page 352)
Helena is 8 years old and has a malignant brain tumor. She is unlikely to survive more than another year. Her parents, who are
married and live together, disagree about her treatment. Her father wants her to have more chemotherapy. Her mother feels this
would put Helena through needless pain and suffering. Each parent now seeks a judicial declaration that will give that parent
unilateral authority to grant or refuse consent to the treatment.
Is it appropriate to grant either parent this authority?
If so, which parent should have the power?
If not, should the parents continue to share authority?
Should decision making be delegated to a third party?
What role should Helena play in the decision and how would your answer change is Helena was 12yo, 14yo, etc.?
State Imposed Health Requirements

State Vaccination Exemptions: Medical, Religious, Philosophical

Each state requires health screening of children.

Mandatory vaccinations = police power

Compulsory public interventions for children encompasses immunizations, school and newborn screening, fluoridation of
public water supplies.
41
Neglect Limitation

Parents who disagree with the state about what medical treatment their children should receive
o
CONSIDER: critically ill children, quality of life and end-of-life considerations, parents’ religious-based
opposition to medical care.

In re Philip B. 
o
“Several relevant factors must be taken into consideration before a state insists upon medical treatment rejected
by the parents. The state should examine:

(1) seriousness of the harm the child is suffering or the substantial likelihood that he will suffer
serious harm;

(2) the evaluation for the treatment by the medical profession;

(3) the risks involved in medically treating the child; and

(4) the expressed preferences of the child.
Of course, the underlying consideration is the child's welfare and whether his best interests will be served
by the medical treatment.”
Construing Neglect
State supervention of parental judgment is warranted only if the state could establish:
(a) that the medical profession is in agreement about what non-experimental medical treatment is right for the child;
(b) that the expected outcome of that treatment is what society agrees to be right for any child, a chance for normal healthy growth
toward adulthood or a life worth living; and
(c) that the expected outcome of denial of that treatment would be death for the child....
Emergencies

At common law a doctor may treat a child without parental consent in the event of an emergency, at least where the parent
is unavailable and where delay endangers the child’s life.
When Parents Disagree

Who Decides If the Parents Disagree and Based on What Standard?

In re K.I.
o
“In short, in exercising its role as parens patriae and guided by testimony of several medical, bioethics, and
ethics experts in this case where there was a prior adjudication of neglect, the trial court, carefully and
thoughtfully, determined by clear and convincing evidence that it was in K.I.’s best interests to avoid use of
aggressive resuscitation efforts which cause pain and discomfort.”
o
Involves medical decision-making regarding a child who is subject to the neglect jurisdiction.
o
“do not resuscitate” order (“the DNR”) entered by the Superior Court in the case of a neglected child, K.I., who,
since birth approximately 2 years ago, has suffered continuously from several serious medical problems.
o
Although biological parents have a "fundamental liberty interest . . . in the care, custody, and management of
their child [which] does not evaporate simply because they have not been model parents or have lost temporary
custody of their child to the State[,]" that interest is not absolute since "the paramount concern is the child's
welfare and all other considerations, including the rights of a parent to a child, must yield to its best interests
and well-being."

Although B.I. (biological mother) clearly has a liberty interest “in the care, custody and management
of [K.I.].” K.I.’s well-being takes precedence over B.I.’s parental rights.
o
Consequently, we hold, consistent with the trial court's memorandum opinion, that “in cases involving minor
respondents who have lacked, and will forever lack, the ability to express a preference regarding their course of
medical treatment," and where the parents do not speak with the same voice but disagree as to the proper
course of action, the best interests of the child standard shall be applied to determine whether to issue a DNR.
Exceptions Where the Minor Alone May Consent to Medical Treatment

Special Circumstances  a number of states permit a minor, regardless of age, to give consent for the diagnosis or
treatment of venereal disease, drug addiction, alcoholism, pregnancy, of for purposes of giving blood.

Emancipation and “Mature Minor” Exceptions  may give consent to medical treatment on the same terms and
conditions as adults.
o
“Mature Minor” Doctrine is a common law or statutory rule that permits unemancipated minors of designated
ages who possess sufficient capacity to understand the “nature and consequences” of a proposed medical
treatment to consent on the same basis as an adult.
NOTES:

How power and responsibility to decide about the medical care of minors is allocated among the child, family, and the
state.

As a general rule, parental consent is necessary for the medical treatment of minors.

Among the state limitations on the parental consent requirement are: mandatory immunizations, the neglect limitation
(where a court may override a parental decision for a child), the emergency treatment of children (where parental consent
may be dispensed with), and various situations that allow minors themselves to consent to treatment.
In the Matter of Tara Cabrera 

6-year-old with sickle cell anemia who had already suffered two strokes needed weekly blood transfusions over at least a
year’s time to reduce the risk of reoccurrence of her strokes from 70% to 10%, but parents refused to consent to the
hospital’s treatments for religious purposes.
42



Harm being the basis for intervention (here, harm being the ongoing well-being of the child based on the diagnoses, the
harm comes from the progression)  all speaks to greater state interest over parental religious objection
“We hold that it is in the best interest of society as a whole that children be protected in situations where death may occur
between one week and one year of the diagnosis and refusal of treatment…”
Notwithstanding, what would other wide be a stance, the child’s welfare allows us to override the parental objection even
in the case of a religious basis.
Mature Minor Considerations

Commonwealth v. Nixon 
o
"Any minor who is eighteen years of age or older, or has graduated from high school, or has married, or has
been pregnant, may give effective consent to medical, dental and health services for himself or herself, and the
consent of no other person shall be necessary....
o
[M]inors may consent to diagnosis or treatment when suffering from the use of controlled or harmful
substances......
o
[M]inors [may] consent to the treatment of venereal disease......
o
[M]inors over 17 years old [may consent] to voluntarily donate blood...
o
...[A] minor [must] petition court for consent to an abortion when the parents do not consent; before giving
such consent, the court must ascertain that the minor is mature and capable of giving informed consent..."
o
Rejected the mature minor defense to charges of involuntary manslaughter and endangering the welfare of a
child after 16-year-old died from untreated diabetes.
o
Holding parents’ have a duty to override their child’s refusal of medical treatment in life-threatening situations,
despite child’s mature minor status.
Decisions to Institutionalize
Interest of the child
"It is not disputed that a child, in common with adults, has a
substantial liberty interest in not being confined unnecessarily
for medical treatment and that the state's involvement in the
commitment decision constitutes state action under the
Fourteenth Amendment.
“The law’s concept of the family rests on a presumption that
parents possess what a child lacks in maturity, experience, and
capacity for judgment required for making life’s difficult
decision. More importantly, historically it has recognized that
natural bonds of affection lead parents to act in the best
interests of their children.”
...[A] child has a protectable interest not only in being free of
unnecessary bodily restraints but also in not being labeled
erroneously by some persons because of an improper decision
by the state hospital superintendent."
Parham v. J.R., 442 U.S. 584 (1979).
Parham v. J.R.

Procedures that are due, with particularly intrusive invasion of a child to an institution.

Question presented in this appeal is what process is constitutionally due a minor child whose parents or guardian seek
state administered institutional mental health care for the child and specifically whether an adversary proceeding is
required prior to or after the commitment.

Class action challenging Georgia’s voluntary commitment procedures for minors as a violation of due process (civil
involuntary commitment to children)
o
What was required for a child to be involuntarily civilly committed? It was a pretty involved procedure, medical
team decision making.
o
Why were these argued to be deficient? They wanted a formal hearing. Does the nature of the right (restriction
on child’s liberty), does that warrant the level of an adverbial hearing in order to protect that right?
Mathews v. Eldridge test – requires a determination of what the private interests are at stake, and what the
governments interests are, and what the risk of error would be if we continued with these procedures.
o
Private party interest with respect to civil institutionalization
o
“Assuming the existence of a protectible property or liberty interest, the Court has required a balancing of a
number of factors: First, the private interest that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional
or substitute procedural safeguards; and finally, the Government's interest, including the function involved and
the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

In applying these criteria, we must consider first the child's interest in not being committed.
Normally, however, since this interest is inextricably linked with the parents' interest in and
obligation for the welfare and health of the child, the private interest at stake is a combination of the
child's and parents' concerns. Next, we must examine the State's interest in the procedures it has
adopted for commitment and treatment of children. Finally, we must consider how well Georgia's
procedures protect against arbitrariness in the decision to commit a child to a state mental hospital.

We also recognize that commitment sometimes produces adverse social consequences for
the child because of the reaction of some to the discovery that the child has received
psychiatric care.

Interests of the parents  parental prerogative, right of parent to direct the upbringing of
their child.
43



Governments and state’s interest in preserving the status quo (keeping a non-adversarial
hearing  saving financial expense, interest is not spending money toward commitment
procedures, interest in overseeing the parental decision (government maintains an interest
in the well-being of all children)

Harm/Risk of Error  sufficiency of those procedures to justify the outcome? What
happens if we get it wrong? People who don’t need to be institutionalized will be
institutionalized (costly in many ways).
Nonetheless, we have recognized that a state is not without constitutional control over parental
discretion in dealing with children when their physical or mental health is jeopardized.
Holding  In defining the respective rights and prerogatives of the child and parent in the voluntary
commitment setting, we conclude that our precedents permit the parents to retain a substantial, if not
the dominant, role in the decision, absent a finding of neglect or abuse, and that the traditional
presumption that the parents act in the best interests of their child should apply. We also conclude,
however, that the child's rights and the nature of the commitment decision are such that parents
cannot always have absolute and unreviewable discretion to decide whether to have a child
institutionalized. They, of course, retain plenary authority to seek such care for their children, subject
to a physician's independent examination and medical judgment.
GENERAL RULE FOR MEDICAL TREATMENT OF A CHILD: parental consent
EXCEPTIONS: emergencies, forgoing PC, given urgent circumstances,
State limitations or exceptions as well (public health interest): immunizations (religious belief, don’t want to worsen an
underlying medical condition),
Statutory carveouts for sexual health and alcohol, where minor consent is sufficient
Note emancipation – court adjudicates a minor as an adult for decision making, and note mature minor doctrines
Exceptions Where the Minor Alone May Consent to Medical Treatment
Special Circumstances  a number of states permit a minor, regardless of age, to give consent for the diagnosis
or treatment of venereal disease, drug addiction, alcoholism, pregnancy, of for purposes of giving blood.
Emancipation and “Mature Minor” Exceptions  may give consent to medical treatment on the same terms and
conditions as adults.
“Mature Minor” Doctrine is a common law or statutory rule that permits unemancipated minors of
designated ages who possess sufficient capacity to understand the “nature and consequences” of a proposed
medical treatment to consent on the same basis as an adult.
When can a state forgo parental consent? Court authorization/order – but when? Blood transfusion, what does the court
have to determine about the status of the child? Are they likely to die or suffer great consequences without it? Dependency action,
parental withholding of consent to treatment puts the child in such a harmful state and the dangers to the child. Withholding
treatment would put child at a greater risk. Need doctor expertise (neglect, tendency frame) – severity of child’s condition, what is
the seriousness of the harm or risk of harm, life threatening illness? And life threatening in what period of time? Medical consensus
within the medical field, and testimony form medical expert that this treatment is warranted and standard, what are the risks of the
treatment itself? Risky? Does it outweigh the other considerations? And lastly, the child’s preferences (Phillip B)
Medical Decision-Making for Disabled Newborns
Texas' Natural Death Act (as applicable to Miller ex rel. Miller v. HCA, Inc.)
"'Terminal condition' means an incurable condition caused by injury, disease, or illness that according to reasonable
medical judgment will produce death within six months, even with available life-sustaining treatment provided in accordance
with the prevailing standard of medical care...”
Tex. Health & Safety Code Ann. §166.002 (13)
Miller ex rel. Miller v. HCA, Inc.

Explores the issue of parent’s refusal of treatment in the context of a severely premature newborn whose prognosis is
uncertain.

Can a hospital be held liable for providing life sustaining medical care to a newborn over a parents’ objections and without
a court order?
o
This case answered: no.
o
The physician was faced with an emergent circumstances: the child might survive with treatment but would
likely die if treatment was not provided before either parental consent or a court order overriding the
withholding of such consent could be obtained.

“Whether Texas law recognizes a claim by parents for either battery or negligence because their premature infant, born
alive but in distress at only 23 weeks of gestation, was provided resuscitative medical treatment by physicians at a hospital
without parental consent?

Determine the respective roles that parents and healthcare providers play in deciding whether to treat an infant who is
born alive but in distress and is so premature that, despite advancements in neonatal intensive care, has a largely
uncertain prognosis.

“Generally speaking, the custody, care, and nurture of an infant resides in the first instance with the parents. . . . Of course,
this broad grant of parental decision-making authority is not without limits. The State's role as parens patriae permits it
to intercede in parental decision-making under certain circumstances.”
o
AKA parental autonomy is not limitless
44





Whether the hospital was required to seek court intervention to overturn the lack of parental consent before the doctor
could treat the newborn without committing a battery?
The provision of medical treatment to an infant during “emergent circumstances” (even in the face of parental refusal of
consent) is an exception to the general rule that a physician commits battery by providing treatment without parental
consent.
Parents bought battery for procedures done without consent and negligence regarding the standard of care.
Who should decide whether an extremely premature infant who faces an uncertain prognosis (regarding the likelihood of
suffering severe, permanent physical and mental impairment) should receive life-sustaining treatment?
Couldn’t decide with certainty, until child was physically here, so we are not going to hold the doctors liable.
CAPTA
PROBLEMS
For the following scenarios, consider:







Do the parents have the right to withhold consent or insist on treatment?
May the doctor and hospital rely on the parents' decision?
Must the doctor and hospital rely on the parents' decision?
Should the hospital staff ask a juvenile court to take jurisdiction of the baby as a "neglected child"?
As an attorney, what would you advise the parents, the attending doctor, and the hospital about potential civil and criminal
liability?
Would your answers be different if, rather than permitting he baby to die from nontreatment, a physician gave the baby a
lethal injection?
What factors should make a difference when deciding what treatment to give to a disabled newborn?
•Survival rate?
•Life expectancy?
•Self-awareness?
•Quality of the baby's life?
•Burdens on the family?
•Cost of treatment?
Baby A, a newborn with Down's syndrome, has an intestinal obstruction that makes food digestion impossible. The chances of a
successful operation to correct the obstruction are very good. Without the operation, the baby will starve to death within two
weeks.
Down's syndrome is a chromosomal disorder that produces mental retardation and several physical characteristics, such as a
distinctively shaped head, neck, and abdomen. There is no known treatment. Many such babies can experience physical and
mental growth, receive and give love, and be trained to feed and clothe themselves, as well as to perform simple kinds of work.
Many live into adulthood.
After consulting with family members, attending physicians, their minister, and the hospital geneticist, Baby A's parents decide
not to consent to surgery to correct the intestinal blockage.
In re Infant Doe, No. GU 8204-004A (Monroe County Cir. Ct., Ind., Apr. 12, 1982), cert. denied,104 S.Ct. 394 (1983).
Successful operation available so treatment is likely to be successful, but without it the baby will die.
Parents decide to withhold consent to surgery that the doctors are recommending.
Do the doctors have to defer to parents? If not, why not? And what set of considerations are important to note?
Quality of life following the operation –
Doctors don’t have to defer argument
Doctors have to defer argument –
Seriousness of child’s condition and the risk to them?
Even though newborn, entertain the idea of the child’s wishes in scenarios like this.
Medical opinion? Routine, corrective surgery, that the doctors are recommending (within the medical community)
Baby B is an infant who is born with a medical condition known as anencephaly, a condition characterized by an absence of most
of the brain but the presence of a functioning brain stern. Most such babies die within a short time after birth.
When Baby B is born, she suffers severe respiratory difficulties. The hospital physicians, baby's father, and members of the
hospital ethics committee all recommend withholding the use of a mechanical ventilator to help the infant breathe, reasoning
that such care would prolong the baby's inevitable death. They want to provide only comfort measures to Baby B (not lifesustaining treatment). However, Baby B's mother, who is a fundamentalist Christian, insists that the baby be placed on the
ventilator.
Real case: continuing care over the objections of the treating physicians
Matter of Baby K., 16 F.3d 590 (4th Cir. 1994), cert. denied, 513 U.S. 825 (1994).
Mike is a newborn boy whose mother, Ginny, is HIV positive. During her pregnancy, Ginny took drugs to reduce the risk that she
45
would transmit HIV anti-bodies to Mike, but after he was born, she refused her doctor's recommendation that Mike receive antiHIV drug treatment. She also decided to breastfeed Mike, despite the doctor's advice.
Based on her own research, Ginny does not believe that HIV causes AIDS and she believes that Mike will benefit psychologically
and physically from being breastfed.
Mike has tested positive for HIV, but an HIV-positive test in a child younger than 18 months may indicate only that the mother is
infected but not necessarily that the child is infected (a positive test after the child is 18 months would indicate that the child is
infected).
Doctors want to give Mike HIV drugs preventatively, consistent with the most recent CDC recommendations. This
recommendation is based on studies that show that HIV drug therapy for the mother while pregnant and for the newborn
reduces the risk that HIV will be transmitted to the new born by 67%.
The hospital reported the situation to the state child welfare authority, who filed a petition in juvenile court alleging that Mike is
medically neglected and seeking judicial authority to enroll him in treatment. The petition also seeks an order that Ginny not
breastfeed Mike.
Impact of withholding treatment from a known child in front of us. Now were moving on… is parental consent enough when we are
talking about experimentation, the benefits of which are NOT about an individual child? Different from above.
Next consideration: Medical Experimentation on Children
May Parents Under Existing Law Consent to Medical Procedures Not Undertaken for the Treatment of the Child In Question?
o
Grimes v. Kennedy Krieger Institute, Inc. 

“To help insure that study dwellings are occupied by families with young children, City Homes
will give priority to families with young children when renting the vacant units…

It can be argued that the researches intended that the children be the canaries in the mines but
never clearly told the parents.”

Is parental consent enough here? Court invalidated it and said it was wrong from the beginning,
putting children in direct harm is invalidated, the purpose/design was inappropriate, so parental
consent does not cure the inappropriateness of the whole undertaking
PROBLEM
Eight-year-old Johnny has had leukemia for four years. For the last three years it has been in remission, but his most recent
checkup revealed that his white cell count is again above normal, meaning the disease has reappeared.
Existing data suggest that the prognosis of Johnny's surviving more than two years with conventional modes of treatment is poor,
but not hopeless. Johnny's pediatrician has recommended that Johnny be given a new form of chemotherapy. There have been
only a few preliminary tests with it, but the results seem promising. The doctor believes that this new therapy may help Johnny
more than conventional therapy, and that under the circumstances "it is worth a try."
May Johnny's parents consent to the chemotherapy? Should Johnny have any say as well?
Suppose Johnny's doctor is a medical school professor running a clinical trial to compare the effectiveness of the new
chemotherapy treatment with that of the standard treatment.
.•May Johnny's parents consent to Johnny's in the experiment, under which the choice of treatment for Johnny will be
made by random selection?
•May Johnny's parents consent to participation in some tests that are not part of Johnny's treatment but for the
purpose of increasing knowledge about leukemia?
Experimental, but results are promising.
Start with parental prerogative, then note the competition of interests.
Liberty interests to direct the care and upbringing the child, etc.
Suppose that after standard therapy has failed to help Johnny, his doctor recommends an experimental drug that the Food and
Drug Administration permits to be used only on a special protocol basis.
•If the parents refuse permission for the child to enter the study, and most medical professionals would agree that it
might well cause a remission, do you think the doctor's petition to a juvenile court to require the drug would succeed?
•What if Johnny was 16 years old instead of 8 and wanted to try the drug?
PROBLEM
Ellen is a17-year-old Jehovah's Witness with leukemia. She and her mother have refused blood transfusions for her, even though
it is likely she will die within a month without further transfusions. The chances that Ellen's disease will go into remission are 80
% if she receives transfusions and chemotherapy (to which they would consent).
The long-term survival rate for minors with this disease is 20-25 %. Ellen is a thoughtful, devout young woman who lives at home
with her parents, does well in school, and is socially well adjusted. The only reason that she and her mother give for declining the
46
transfusion is their religious beliefs.
You know from materials earlier in this semester that if Ellen were a young child, a court might well order the transfusion over
the mother's objection. Ellen's doctor has filed a juvenile court petition asking that Ellen be found medically neglected and that
the court order transfusions for her.
•What arguments should be made at the hearing on the petition?
PROBLEM
Joe is a 16-year-old boy with cystic fibrosis who has been hospitalized four times within the last year for pneumonia. He knows
that he is dying, has seen several of his friends die from the same disease, and fears that he will die slowly and painfully.
Joe has strongly expressed his wish that he not be put on a ventilator. He is in the hospital, is unable to communicate any longer,
and will soon die if he is not put on a ventilator. His parents adamantly insist that he be kept on a ventilator and intubated.
His doctor asks you for advice. What advice do you give?
PROBLEM
Jane and Don's oldest daughter, Anna, has leukemia. When Anna was first diagnosed, the doctors said that her best chance for
survival was to receive a bone marrow transplant, but neither Jane, Don, nor their other daughter, Betsy, was a match. Jane and
Don had another child, hoping for a match. They successfully conceived, and their daughter Carrie, was indeed a match for Anna.
At Carrie's birth, with the consent of Jane and Don, Anna's doctors took some of Carrie's cord blood to use in an experimental
treatment for Anna.
The treatment was successful for several years, but when Carrie was three, Anna's leukemia returned. Jane and Don consented
for Carrie to be a white blood cell donor for Anna. Again, the treatment was successful for a few years, and again Anna relapsed.
When Carrie was ten, her parents consented to her being a bone marrow transplant donor for Anna.
Carrie is now 13, and Anna's kidneys are failing. Jane and Don want Carrie to donate one of her kidneys to Anna. Carrie has
found a sympathetic attorney, who has filed a suit on her behalf, seeking authority for Carrie to make her own decision about
whether or not to continue to be a donor for her sister. Jane and Don have moved to dismiss the suit on the basis that recognizing
Carrie's cause of action would unconstitutionally invade their parental rights and would be contrary to public policy.
What arguments should be made?
Adolescent Health Care

State v. Scruggs
o
“It maybe common knowledge, for example, that drinking milk is healthier than a constant diet of soft drinks,
reading books is preferable to constant exposure to television programs, large cars are safer than small cars,
playing computer games is safer than riding a bicycle, and so on.
o
All of these comparisons, however, involve virtually infinite gradations of conduct, making it extremely difficult,
if not impossible, for an ordinary person to know where the line between potentially harmful but lawful conduct
and unlawful conduct lies or, indeed, whether that line exists at all. Not all conduct that poses a risk to the
mental or physical health of a child is unlawful. Rather, there is an acceptable range of risk."
School Responsibility for Suicide

Eisel v. Bd. Of Educ. Of Montgomery Cty. 
o
"[S]chool counselors have a duty to use reasonable means to attempt to prevent a suicide when they are on
notice of a child or adolescent student's suicidal intent."

Rogers v. Christina Sch. Dist. 
o
Eisel is easily distinguished from this case, as Maryland common law has long placed schools in loco parentis
with students. In contrast, Delaware courts have only found an in loco parentis relationship between a school
and a student “for the purposes which are consistent with the need to maintain an effective educational
atmosphere.”
Whose Role?: Harassment/Dating Violence

Davis Next Friend LaShonda D. v. Monroe Cty. Bd. Of Educ. 
o
"[I]n the context of student-on-student harassment, damages are available only where the behavior is so severe,
pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is
designed to protect."
o
SCOTUS first extended Title IX to student-on-student sexual harassment in this case, when a mother brought
suit against a Georgia school district alleging that her fifth-grade daughter had been the victim of sexual
harassment by another student in her class. The school did nothing to stop the boy’s behavior, even after the
girl’s parents asked her teacher to move her seat. Other girls had also reported the boy’s behavior, but the
principal also denied their requests for intervention.
o
District court dismissed the mother’s claim under Title IX of the Education Amendments, on the ground that
peer harassment provides no ground for a private cause of action under the statute.
o
SCOTUS reversed, concluding that a Title IX claim applies against the school board in cases of student-onstudent harassment if (1) school officials acted with deliberate indifference to known acts of harassment in its
47
programs or activities, and (2) the harassment is so severe, pervasive, and objectively offensive that it effectively
bars access to an educational opportunity or benefit.
o
48