William Wesley Patton
William Wesley Patton
No ancient civilization considered child protection to be a governmental function. In ancient Rome, for instance, fathers were vested with an almost unlimited natural right to determine the welfare of their children. The welfare of minors was a family matter, not a governmental interest or obligation. Most other governments of the ancient world provided no limits to a father’s right to inflict corporal punishment, including infanticide.
English Common Law
In addition to the case-by-case determinations by the chancery court regarding children’s property and guardianships, Parliament, in 1601, promulgated the Poor Law Act, which, among other provisions, provided the government jurisdiction to separate children from pauper parents and to place poor children in apprenticeships until the age of majority (21 for males and 16 for females). In 1660 Parliament passed the Tenures Abolition Act, which presaged the end of feudalism, including guardianships in chivalry that had formed the basis for the earlier Court of Wards and Court of Chancery over the guardianship of both children’s and the Crown’s inheritance and property interests. (“Guardianships in chivalry” provided that when a tenant on a lord’s land died leaving an heir under the age of majority, the lord could control the minor heir’s inheritance until the child became an adult.) The Tenures Abolition Act was revolutionary because it vested in the father the right to appoint a guardian for his child heir, which was previously forbidden under the feudal inheritance laws.
From 1660 until 1873 the Court of Chancery administered equity jurisdiction in conflicts between private parties over testamentary guardianships. It was during these equity determinations that the Court of Chancery expanded the substantive scope of child protection to include, in addition to inheritance and property, concerns over a ward’s rights to marry, to a particular type of education or school, to the choice of religious training, and to child custody arrangements. In 1839 Parliament dramatically expanded the court’s jurisdiction to determine the best interest of children through the Custody of Infants Act, which provided court jurisdiction to over-ride a father’s parental rights, including rights to custody and visitation. Most historians would agree that by the nineteenth century governmental concern in the child’s best interest were perfected directly through the doctrine of parens patriae, rather than indirectly through legal contests over property and guardianships.
The American Colonies
The child protection policies of the early American colonists closely mirrored those of seventeenth-and eighteenth-century Britain. The colonists emphasized two aspects of English child protection theory: “the common law rules of family government; and the traditions and child-care practices of the Elizabethan Poor Laws of 1601” (Thomas, p. 299). Although colonial remedies of placing pauper children into involuntary apprenticeships or into poorhouses initially followed English legal customs, soon colonial theorists expanded court jurisdiction over juveniles to include contexts beyond poverty. For instance, in eighteenth-century Virginia, courts separated children not just from poor parents, but also from parents who were not providing “‘good breeding,’ neglecting their formal education, not teaching a trade, or were idle, dissolute, unchristian or ‘uncapable”‘ (Rendleman, p. 210). Calvinist notions of poverty as idleness and sin permitted court expansion into the normative definitions of the “best interest” of children.
Until the mid-1800s, child protection laws did not differentiate among different classes of children; so that dependent children, status offenders, and juvenile delinquents were either housed together in poorhouses with adults or involuntarily apprenticed. However, by 1830, “an embryonic reform movement had begun,” which removed dependent children from the teeming poorhouses and placed them in large orphan asylums. (Thomas, pp. 302–303). Due to the refuge movement (1824–1857), private corporations such as the New York House of Refuge (founded in 1824) received public funds and cared for both neglected and delinquent children in large institutions that separated juveniles from adult criminals and paupers. However, by the mid-1850s an anti-institution movement had developed, with the goal of placing poor city children in country foster placements rather than in large city institutions. Even though numerous state statutes were promulgated in the nineteenth century to care for abused and neglected children, government machinery was inadequate to implement sufficient protection.
In 1875 in New York, the first Society for the Prevention of Cruelty to Children (SPCC) was founded to help enforce child protection laws. However, since the SPCC was composed primarily of “wealthy, white men, almost all of them Protestant,” who hired middle-class men as family investigators, the families that were targeted were largely poor immigrant families, who were judged by middle-class mores and vague standards such as “without proper parental guardianship” (Schiff, p. 413). The numerous competing reform movements and children’s aid societies of the mid-to late 1800s focused on the child as a member of a family group, not as an autonomous individual, and most emphasized removing children from their own families and placing them into a different home environment. By 1879 the New York Children’s Aid Society had sent 48,000 children out of New York to live with other families. After its first fourteen years, the New York Society for the Prevention of Cruelty to Children “investigated nearly 70,000 complaints of ill-treatment of 209,000 children. Prosecutions were pursued in 24,500 of these cases, resulting in almost 24,000 convictions and the removal of 36,300 children” (Schiff, pp. 413–414).
By the beginning of the twentieth century the tide had turned away from family separation and toward family preservation. At the 1909 White House Conference on the Care of Dependent Children, it was declared that “[h]ome life is the highest and finest product of civilization. It is the great molding force of mind and of character” (Tanenhaus, p. 550). The twentieth century ushered in a dramatic shift away from private child protective services in favor of governmental control by public agencies authorized under both federal and state child protection statutory schemes. In 1899 Illinois promulgated the first juvenile court, whose stated purpose was to provide for the care and custody of children in a manner that was an alternative equivalent to that of their parents. By 1920 all but three states had a juvenile court system.
But the goal of family reunification was rarely realized by the early juvenile courts, because few services were made available to assist poor uneducated parents in curing the conditions that led to state intervention. Instead, children remained in out-of-home placements for considerable periods of time. For instance, in Chicago, the city with the nation’s first juvenile court, the rate of family reunification in 1921 was about the same as in 1912 (70%), but in 1921 more children were staying in institutions for longer periods than in 1912.
The Constitution and Child Protection Laws
Between 1875 and 1900 numerous challenges to the vague legal definitions of child dependency and the informal legal proceedings leading to the separation of parents and children were denied. Early court decisions did not speak in terms of parents’ constitutional rights to rear their children, did not closely circumscribe the state’s parens patriae power to protect children, rejected arguments based upon criminal law analogies, and failed to articulate procedural due process protections for families caught in the child protection legal maelstrom.
Although state and county juvenile courts continued to evolve and to provide different levels of due process in child protection proceedings, the modern child dependency court development was shaped by several decisions of the U.S. Supreme Court, which formalized the court process. In Meyers v. Nebraska (1923) the Court held that parents have a fundamental constitutional liberty interest in rearing their children. Based upon that liberty interest, the Court held in Lassiter v. Department of Social Services (1981) that, under certain circumstances, parents are entitled to court-appointed attorneys when they face involuntary termination of their parental rights in child protection proceedings. And in Santosky v. Kramer (1982) the Court held that the state has the burden of demonstrating, by clear and convincing evidence, that termination of parental rights is necessary to protect children. Local juvenile courts no longer had unbridled discretion to informally and permanently separate parents and children. However, the U.S. Constitution became the sounding board only in cases involving permanent severance of parental rights. States are still free to provide fewer due-process procedural rights in temporary child protection cases.
Federal Statutory Policy
In the 1980s and 1990s the autonomy of state child protection schemes was further compromised and homogenized by a series of federal statutes. In 1980, Congress passed the first comprehensive federal child protective services act, the Adoption Assistance and Child Welfare Act of 1980 (Pub. L. 96-272), which focused on state economic incentives to substantially decrease the length and number of foster care placements. This act also required specific family reunification services, reflecting the goals of the 1909 White House Conference. However, in 1997, in order to cure many of the defects in the 1980 act, Congress passed the Adoption and Safe Families Act, which shifted the focus from family reunification to expeditious permanency for children in adoptive placements. All state child protection systems adopted the federal guidelines as a requirement for receiving federal subsidies. Thus, because of constitutional and federal statutory requirements, the genesis of America’s child protection system has led to great uniformity among state programs.
ABRAMOWICZ, SARAH. 1999. “English Child Custody Law, 1660-1839: The Origins of Judicial Intervention in Paternal Custody.” Columbia Law Review 90:1344–1391.
COGAN, NEIL HOWARD. 1970. “Juvenile Law, Before and After the Entrance of Parens Patriae.” South Carolina Law Review 22:147–181.
COUPLET, SACHA M. 2000. “What to Do with the Sheep in Wolf’s Clothing: The Role of Rhetoric and Reality about Youth Offenders in the Constructive Dismantling of the Juvenile Justice System.” University of Pennsylvania Law Review 148:1303–1346.
ESPENOZA, CECELIA M. 1996. “Good Kids, Bad Kids: A Revelation about the Due Process Rights of Children.” Hastings Constitutional Law Quarterly 23:407–545.
FOX, SANFORD J. 1970. “Juvenile Justice Reform: An Historical Perspective.” Stanford Law Review 22:1187–1239.
LOKEN, GREGORY A. 1995. “‘Thrownaway’ Children and Throwaway Parenthood.” Temple Law Review 68:1715–1762.
MACK, JULIAN W. 1909. “The Juvenile Court.” Harvard Law Review 23:104–122.
RENDLEMAN, DOUGLAS R. 1971. ” Parens Patriae: From Chancery to the Juvenile Court.” South Carolina Law Review 23:205–259.
SCHIFF, CORINNE. 1997. “Child Custody and the Ideal of Motherhood in Late Nineteenth-Century New York.” Georgetown Journal on Fighting Poverty 4:403–420.
SCHWARTZ, IRA M.; WEINER, NEIL ALAN; and ENOSH, GUY. 1998. “Nine Lives and Then Some: Why the Juvenile Court Does Not Roll Over and Die.” Wake Forest Law Review 33:533–552.
SCOTT, ELIZABETH S. 2000. “The Legal Construction of Adolescence.” Hofstra Law Review 29:547–582.
TANENHAUS, DAVID S. 2001. “Growing Up Dependent: Family Preservation in Early Twentieth-Century Chicago.” Law and History Review 19:547–582.
THOMAS, MASON P. 1972. “Child Abuse and Neglect Part I: Historical Overview, Legal Matrix, and Social Perceptions.” North Carolina Law Review 50:293–349.
WILLIAM WESLEY PATTON
In the United States, methods for protecting abused and neglected children have progressed over the years. During the colonial era, the policy was to house pauper children in poorhouses or assign them to apprenticeships, while in the early nineteenth century the preference was to place these children in orphanages and industrial schools run by private societies. During the late nineteenth century and the twentieth century, state child-dependency statutory schemes became prominent, based upon the state’s jurisdiction, through parens patriae (“father of the country,” used in law to denote the government’s power to protect its citizens), to intervene in family affairs for the protection of at-risk children. Contemporary children’s services are characterized by a shift in power from state to federal policy control, with a resultant structural uniformity among state child-protection models.
Federal child-protection policy has historically favored family preservation over the institutionalization of dependent minors. As early as 1909, through the White House Conference on the Care of Dependent Children, the federal government identified the importance of the home as the central forum for child development. Until recently, the history of child protection in America has reflected this presumption of family preservation being preferable to moving an at-risk child to a possibly better or safer environment. However, it was not until 1980 that Congress passed the first comprehensive federal child protective services act, the Adoption Assistance and Child Welfare Act (Pub. L. 96-272), which focused on state economic incentives to substantially decrease the length and number of foster care placements. This law also required specific family reunification services, reflecting the goals of the 1909 White House Conference.
In 1997, however, in order to cure many of the defects in the 1980 act, Congress passed the Adoption and Safe Families Act, which shifted the focus from family reunification to the best interests of children in expeditious permanency, which aims to rapidly finalize a permanent custodial home for minors rather than placing them temporarily in a series of different foster homes. Unlike the lengthy reunification services under the 1980 act, which often resulted in the termination of parental rights after two or three years of juvenile court intervention, the 1997 act required states to engage in “concurrent planning” at case intake. The federal goal of child protection had substantially shifted toward the child’s individual needs, rather than primarily attempting family reunification through state services. In fact, in cases involving allegations of serious abuse, the 1997 act deleted the prior requirement of state reunification services and permitted states to immediately seek to sever parental rights and place children into the new preferred placement, adoption. The 1997 act created adoption subsidies and incentives to states. This federal adoption preference soon resulted in unprecedented increases in the number of dependent children being adopted.
Problems with the 1997 Act
Even though the 1997 act reduced the time within which dependent children placed outside the home would remain in temporary placements and increased the number of adoptions, it has also created new problems. First, the federal adoption subsidy program has convinced many potential foster parents to become adoptive parents, thus reducing the number of temporary placements for abused children. The adoption subsidy has also driven social service agencies toward decisions to sever parental rights in close cases, rather than continuing family reunification and temporary foster placements.
The greatest impact of this new rush to permanent adoption has been on sibling relationships. Most state statutory schemes do not recognize that significant sibling bonds are a sufficient reason to continue temporary placements, rather than splitting siblings into different adoptive homes. Child welfare theorists argue that the speedy adoption permanency requirement of the 1997 act is having a significant deleterious cultural impact on poor and minority families. “Black families, who dominate foster care caseloads, are the main casualties of this shift away from a service provision toward coercive state intervention, which includes the requirement to relinquish custody of children as a condition of financial assistance” (Roberts, pp. 1641–1642).
Prior to the 1997 act, dependent children often lived with many different foster families in different neighborhoods, and they therefore lacked any continuity in their formal education, either with teachers or with curricula. For instance, in 1993 California foster children “attend[ed] an average of 9 different schools by the age of 18 … [and] demonstrate[d] significantly lower achievement and lower performance in school” (Kelly, pp. 759–760).
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This educational discontinuity results in a continuing introduction and departure of new and different friends and teachers, inadequate transfer of educational records, and lost academic credit. Even though “60% of children in foster care have measurable behavior or mental health problems … [and][a]pproximately 35–45% … have developmental problems,” most do not receive appropriate diagnosis for special education classes or psychological treatment (Practicing Law Institute, p. 115). It is clear that children with disabilities trapped in this legal maelstrom are not receiving the education promised by the Individuals with Disabilities Education Act, which established legal means “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.”
The Decline in Child Dependency Cases
Child neglect and abuse reports increased an average of 6 percent annually from 1985 to 1991, when the number of reports reached 2.9 million. However, since 1991 there has been a continual decrease in the number sexual abuse reports, with a 26 percent decline from 1991 to 1998 in the number of reports and an average decline for all states of 37 percent in substantiated cases. In Los Angeles County, which has more foster children than any other county in America, the number of foster care children dropped from 18.7 per thousand in 1997 to 13.1 per thousand in 2001, and the number of reported child abuse cases dropped from 71.2 reports per thousand in 1996 to 53.1 per thousand in 2000.
In 1990 the United States Advisory Board on Child Abuse and Neglect determined that the most significant factor in failing to provide dependent children with adequate services was the overload of cases. If the decline in the number of reported child abuse cases continues, and if social services agencies do not respond by a corresponding reduction of current staff, it may become possible to provide dependent children the social services and educational services commensurate with their needs.
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Individuals with Disabilities Education Act Amendments of 1997. U.S. Public Law 105-17. U.S. Code. Vol. 20, secs. 1400 et seq.
JONES, LISA, and FINKELHOR, DAVID. 2001. The Decline in Child Sexual Abuse Cases. Washington, DC: U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention.
KELLEY, KATHLEEN. 2001. “The Education Crisis for Children in the California Juvenile Court System.” Hastings Constitutional Law Quarterly 27:758–773.
MYERS, JOHN E. 1994. “Definition and Origins of the Backlash Against Child Protection.” In Excellence in Children’s Law. Denver, CO: National Association of Counsel for Children.
PRACTICING LAW INSTITUTE. 2000. “Early Intervention and Special Education Advocacy: A Missing Link in the Representation of Children in Foster Care.” Practicing Law Institute, Litigation and Administrative Practice Course Handbook Series, Criminal Law and Urban Problems 185 (C0-0016):103–166.
RIVERA, CARLA. 2001. “State’s Children Facing Fewer Risks, Study Says.” Los Angeles Times November 28:3.
ROBERTS, DOROTHY E. 2001. “Kinship Care and the Price of State Support for Children.” Chicago-Kent Law Review 76:1619–1641.
SANDERS, DEBORAH. 2001. “Toward a Policy of Permanence for America’s Disposable Children: A Survey of the Evolution of Federal Funding Statutes for Foster Care from 1961 to Present.” In Advocacy for Children and Families: Moving from Sympathy to Empathy. Denver, CO: National Association of Counsel for Children.
TANENHAUS, DAVID S. 2001. “Growing Up Dependent: Family Preservation In Early Twentieth-Century Chicago.” Law and History Review 19:547–582.
THOMAS, MASON P. 1972. “Child Abuse and Neglect, Part I: Historical Overview, Legal Matrix, and Social Perspectives.” North Carolina Law Review 50:293–349.
WILLIAM WESLEY PATTON