Professor Woodhouse is Professor of Law at the University of Pennsylvania and is currently President of the Family and Juvenile Law Section of the Association of American Law Schools. She teaches courses in family and children's law, constitutional law, and conflict of laws. Professor Woodhouse clerked for Sandra Day O'Connor after her graduation from Columbia Law School, where she was a founding member of the Family Advocacy Clinic. At Penn Law, she has developed an interactive course replicated in other law schools for training students to represent parents, children, and the state in child abuse and neglect cases and other situations relating to state intervention in the family. She has written dozens of articles and book chapters about parents' and children's rights and has presented papers and lectures at numerous professional conferences including the ABA Appellate Judges' Seminars for state court judges. Professor Woodhouse has also played an active role in various adoption cases implicating children's rights, authoring brieft to the United States Supreme Court in the cases of DeBoer v. Schmidt (Baby Jessica) and Doe v. Kirchner (Baby Richard). She is an active member of the International Society fbr Family Law, a Director of the American Society of Comparative Law, and an Mtor of the Journal of Psychology, Public Policy and Law. She is a member of the Advisory Board. of the National Center for Fathers and families and a Board Mernberofthe Philadelphia Support Center for Child Advocates. Professor Woodhouse is currently writing a book for the Harvard University Press series on Public Policy and the Family, to be titled "Honor Thy Children: Children's Rights and the Transformation of Family Law and Policy." She is the mother of two grown children, one a law student and the other on active duty in the U.S. Army.
Introduction and Summary
As a professor teaching a course on Child, Parent & State, I train future attorneys to provide legal representation to parents, children, and government agencies. Because of my seven years of collaboration with Philadelphia family and juvenile judges, attorneys for parents and children, and public agencies, I am acutely aware of the complexity of family law, the overburdened court systems and fiscal constraints, and the challenges of representing parent, child, and state. My goal in teaching, like that of the Bill at issue, is specifically to prevent improper state interventions in family life. Representing families in disputes with the state is the most demanding, important and often heartbreaking area of the law, but my students do not mind that they will sacrifice job security, money and status for long hours and low pay, because they believe that they are performing a critical role in the legal system.
Although I strongly support the principle of protecting families from unlawful state intrusions, I must oppose H.R. 1946. It is needlessly broad and unfocused, drafted in vague and ambiguous language, and will lead to serious unintended consequences for families and children, in contexts ranging from adoption to domestic violence. Its fiscal impact will create an in terrorem effect, hampering efforts of local communities to protect children at risk and to promote children's health, education, and safety. The proposed Parental Rights and Responsibilities Act of 1995 (PRRA), will not further its stated goal of protecting legitimate exercises of parental rights and responsibilities; instead, it poses a serious threat to children and families. I will illustrate point by point, suggesting actual or likely hypothetical cases in which the Bill would create severe unintended and detrimental effects.
A. H.R. 1946 is unnecessary. This Bill is a response to a few cases with great shock value. I agree that any instance in which a responsible parent is wrongfully accused shocks the conscience. However, closer examination of the cases motivating this Bill and of current state, federal, and constitutional law reveals that existing laws already provide effective protection of parents' rights. State laws, often backed up by federal laws such as the Child Welfare and Adoption Assistance Act, provide for procedural and substantive protections for parents in areas from abuse and neglect to education and religious training. In addition, strong constitutional principles reaffirmed repeatedly by the Supreme Court already empower parents to challenge unlawful acts by government authorities and to receive remedies for constitutional violations. In some of the cases cited by the authors of the Bill, these, principles prevailed and parents arguments were sustained.1 In others, on closer examination the holdings and facts simply do not support the charge of improper intervention.2 Other cases cited by proponents relate to areas specifically exempted ftom this Bill.3
Illustration: Under HR 1946, a parent involved in defending a child abuse or education-related claim in a dependency court or an administrative tribunal could force the city, school or state to defend on two fronts, by filing an action in federal court under the Act. Although principles of abstention might offer some protection, the time and expense of defending such duplicative, collateral claims would deplete scarce resources needed for delivering services to children at risk or for education of all children without adding any new protections for parental rights.
B. HR 1946 is not only unnecessary, it is harmful for the following reasons:
I The Bill's language in vague and ambiguous, and the process of clarification will result in harmful confusion at the local level and protracted and fiscally ruinous litigation. In an attempt to create a sweeping effect, the Bill uses language that is so broad and vague as to invite protracted litigation. For example, when is an action "temporary or preliminary" and when does it constitute a "final action or order"? What
1The finding in E.Z. v. Coler, 603 P. Supp. 1546 (N.D. 111. 1985), that parents
automatically consent to searches of their homes and children if they do not object was reversed on appeal in Daryl H. V. Coler, 901 F.2d,193 (7th Cir. 1926). Although the court upheld the necessity of emergency searches and inspections based on abuse hodine reports because of the crucialintercst in protecting children, its decision was based in part on the agency's having rewritten its handbook to strengthen protections of parents'and children's privacy rights.
2In re Sumey, 621 P.2d 109 Wash. (Wash. 1980). and In the Matter of Ray, 408 N.Y.S.2d 737 (1979). for example, have been chaacterized as removing children from their parents because of disagreements over house rules or parenting philosophy. In fact, these cases involved statutes that would pass muster under the proposed Bill. These cases were decided based on extreme fact situations which posed serious risks of harm to the children. The teenager in in re Surney had run away from home repeatedly and the trial court concluded she was seriously at risk, a reasonable conclusion given what we know about the exploitation of runaway girls in cities like New York and Sam Francisco. She was placed temporarily in a residential home, In the Ray case, involving a mother who supposedly lost her child because she refused to get psychological counseling for her, evidence was presented that the mother had medically, emotionally, and physically neglected the child over a period of years and had struck her with a baseball bat. These cases involve disputes over facts, not applications of bad laws, and would not be affected by the proposed Bill.
3Gardini V. Mayer, 575 N.E.2d 423 (Ohio 1991) involved a dispute between a custodial mother and a noncustodial father over home schooling and thus would be exempted under Sec. 7 of the proposed Bill.
does the act mean by orders that "terminate" visitation? See Sec. 3 Dcrinitions (1) (A) and (B). The area, of family law is extremely complex and involves overlapping rules of local, state and federal law and many different kinds of courts that attempt to address dangers on an emergency basis. Currently, CPS proceedings are divided into investigation, adjudication, disposition and permanency phases, often with different rules and standards of proof The PRRA's language does not match that of many local and state laws in the area, but would preempt them or create inconsistent duties. Adding confusion in this area will increase the costs and impede the functioning of these courts and agencies.
Blustrations: A domestic violence court enters a "stay away" order against a parent who has beaten or Threatened serious violence to his child's mother (these courts often are open around the clock). Is this a termination of custody or visitation such that the court dealing with family violence cases must have "clear and convincing evidence", before issuing such a protective order?
At the permanency planning stage, a court orders "permanent or long term foster care"for the child of a parent who is mentally ill but whose rights should not be terminated because he or she has a relationship with the child and has made every possible effort to maintain that relationship? The parent is not "guilty" of abuse or neglect, yet the child is in need of permanent substitute care. In order lawfully to enter this order, must the court have clear and convincing evidence? Of what? That the parent will not be able to function soon? Ever? That the parents' illness is a form of abuse or neglect? These issues are already raised by current laws, and should be left to current laws for orderly resolution-on.
The Bill will raise the costs to local communities of protecting children from abuse and physical or medical neglect The Bill attempts, but clearly fails, to effectively exempt abuse and neglect cases and medical decision-making from its scope. As I a threshold matter, in order to determine whether a given claim falls within the Bill's scope, a court presented with a claim or defense under the Bill will have to decide whether a particular medical decision results in "danger to the child's life" in "serious physical injury," or "constitutes abuse and neglect as the terms have traditionally been defined." In effect the PRRA opens a wedge to challenge and relitigate the issues of medical decision-making and abuse and neglect not only in the original case but potentially in a separate forum and a separate cause of action. Nothing in the PRRA seems to require that a parent raise the PRR A as a defense in the initial proceeding.
Illustration: A parent is ordered to have no contact with his daughter during the two week period during which charges of sexual abuse are being investigated. The investigation substantiates some arguably improper contact or activity (taking of nude photographs, for example) that falls short of clear cut sexual abuse. The court vacates its order and recommends family therapy. The parent may use the PRRA to challenge the initial order, arguing it was based on less than probable cause, or that the acts in question were not abuse and neglect as traditionally defined, and that supervised visitation was not the least restrictive means of accomplishing the government purpose. Should he prevail, he will be awarded attorneys fees. In any event, the litigation draws scarce resources needed for CPS services to children at risk. Such cases have a strong chilling effect on attempts to protect vulnerable children from risks of serious harm.
3. The high costs of losing a PRRA case will deter agencies from making those critical decisions regarding emergency intervention. It is important to bear in mind, in considering every one of the points in this testimony, the effect on decision-makers working with children. In child abuse school searches, adoption, and every other context, these decision- makers will be even more fearful than at present that an error on the side of intervening will result in large court awards of damages and attorneys fees. The act fails to adequately balance the magnitude of harms at stake: agencies will inevitably make mistakes. A wrongful removal can be remedied; at least in part by restoring the child promptly to his family. Fear of intervening in those difficult, close cases may mean there is no child to put back in his family.
Illustration: Millions of cases of child abuse are reported each year (c. 3,000,000 in 1994), and a large percentage (c. 1,000,000) are substantiated even though the children may be too young to seek help or to testify and the acts usually occur without any witness present.4 Thousands of children die and hundreds of thousands are hospitalized each year because of abuse and neglect. Each such intervention is a potential lawsuit under the PRRA. The case of Joshua DcShaney v. Winnebago County, decided in 1989 by the Supreme Court, establishes that the child who is seriously or fatally injured because of nonintervention has no cause of action against the state for wrongfully failing to protect him from harm. The Court justified this conclusion by pointing out the thin line that agencies must tread between protecting children and protecting the rights of their parents. The PRRA improperly tips the delicate balance between over- and underintervention described in Justice Rhenquists' opinion.
4. By using term such as "traditional" and "physical risk" the PRRA does not succeed in its attempt to distinguish necessary from overly intrusive interventions, and may impede state and local government from responding to new scientific knowledge about child development and children at risk. In each case courts must decide whether a particular parental act falls within the scope of the exception for abuse and neglect "as the terms have traditionally been defined." At the turn of the last century, traditional law allowed parents to sell children's labor or discipline children by beating them with a stick no thicker than the parent's thumb, often inflicting serious bodily harm. (The "rule of thumb"). Most states now consider these acts to be child abuse. In
4Note that a case not listed as "substantiated"is not the equivalent of a false report. The standards for a finding substantiating a report are high, and the burden of proof is, of course, on the government agency. In many unsubstantiated cases, there is significant evidence that abuse did in fact occur and parents often accept voluntary services to deal with their violent behavior.
the past few decades, we have learned a tremendous amount about the effects on children of exposing them to things ranging from domestic violence and pornography, to drugs and alcohol in utero. We now understand that children can die from previously unidentified causes such as "failure to thrive syndrome." Child sexual abuse, once believed to be rare, has been identified as a serious problem affecting children's healthy development. The PRRA would have the effect of precluding law-makers at the state and local levels from responding to new teaming regarding serious risks to children. The Bill's drafters are mistaken in believing that referring to tradition will somehow accomplish the goal of distinguishing valid interventions from wrongful interventions.
Illustrations: A court removes a child from the home of parents who do not strike the child but who have violent physical fights with each other, resulting in the spilling of blood and broken bones. Traditionally, courts considered violence between spouses to be irrelevant in determining whether a parent was "unfit". See Naomi Cahn Civil Images of Battered Women. Recent research published by the American Medical Association Journal, however, substantiates the physical and emotional harm to children form witnessing violence in the home. Evidence regarding this child shows that he is suffering serious trauma. Does the parent's conduct fall within the "traditional" definition of abuse?
A city or country health department in the midst of an epidemic obtains court orders compelling all parents to have their children vaccinated or keep them home from school. Does a parents' refusal to comply endanger his child or the community's children generally? Is his challenge covered by the PRRA or not? Parental rights challenges posed serious obstacles in a recent epidemic of measles in Philadelphia that killed a number of young children. What about cutting edge questions like parents' rights to preclude HIV testing of infants whose lives may be prolonged but not saved by treatment? Tradition provides few answers to these questions, and the PRRA may have unintended effects on local governments' ability to respond.
5. The PRRA mistakeisly focuses narrowly on parents' rights, rather than family rights, and win have tragic unintended consequences for children living with extended families many thousands of children throughout the country live in homes where the heads of family are grandparents or other extended family members or other non-parent care givers. In Philadelphia, as many grandmothers are caring for children at risk as are the mothers and fathers. Not only does this legislation fail to protect these families, it opens the door to attacks by noncustodial biological parents against agencies who place children with their grandparents or order that they remain in grandparents' custody.
Illustration: A common case pattern in Philadelphia and many other urban and rural areas involves a grandmother or aunt who has taken responsibility for a child whose mother has left her in the relative's custody, often since birth. The biological parent either a mother or a father, would be given a strong weapon in the PRRA to force agencies to remove children from these stable and happy homes. The casa of the Baldanza boys in New York City, whose crack addicted parents were able to disrupt the little boys' lives in the home of a devoted extended family member who had raised them since birth, illustrates the tragic effects of such a strong parental preference.
6. The PRRA neglects any mention of children's rights, either to protection of their family integrity or to protection from harm. Nowhere in the PRRA is there any mention of children's rights. Contrary to many people's assumptions, children's rights to family relationships are a strong weapon in the arsenal for protecting family privacy. Advocates representing children in CPS cases are often instrumental in returning the child to his home or preventing a wrongful removal and in articulating children's interests in protection of their intimate family ties. Any sweeping statement from Congress is incomplete without mention of children's complementary rights to family protection as well as mention of children's rights to protection from harm.
Illustration: Cases cited by the Bill's proponents include cases in which advocates representing children joined with adovocates representing parents to challenging laws that improperly intruded in the family's privacy. See E.Z. v. Coler, supra.
7. The PIMA will have a chilling effect on adoption - It will provide a powerful weapon for viewed father's to challenge adoptions, as in the case of Baby Jessica, Baby Richard.and Baby Emily. Recent cases have involved unwed biological fathers who successfully challenged adoptions of children, based on the argument that they did not know of the pregnancy or of the adoption. Baby Jessica was almost three years old and Baby Richard was four when he their adoptive families were ordered to surrender them to the biological father they had never met Baby Emily was allowed to remain with her adoptive family, but the Florida Supreme Court stated in dicta- that if the biological father (a convicted rapist) had not been found to have abandoned the mother, Baby Emily's interest would have been treated as legally irrelevant. State courts upheld many of these fathers' absolute custody rights, and these victorious fathers would now be eligible for reimbursement of their attorneys' fees, in addition to return of the child. Many of the potential unwed father scenarios would deter adoption of babies who are especially at risk, born to teen mothers who wish to place them for adoption or whose rights were terminated because of drug addiction or abandonment but where the father is unidentified or unknown at the time of placement.
Illustration: A man who fathered a child out of wedlock seeks to have the child's adoption vacated. He claims he had split up with the mother and was not aware of the pregnancy or the adoption. The mother refused to give the father's name because she feared he was violent. The adoptive family presents evidence that the father has a criminal record for sexual assault. The court holds he has not waived his parental rights and that the rape conviction is irrelevant to his 'fitness as a father. The PRRA would allow an award of attorneys fees, especially if father could show involvement of a state agency in the adoption. This case is a composite of the Baby Emily,Richard and Jessica cases, and is an increasingly common scenario in courts throughout the nation.
8. Awards of attorneys' fees would shift cases involving children away from a focus on cooperating to protect children's interests and towards a focus on the adversarial process. The present systems for dealing with issues involving children emphasize parents' and governments' shared interests in children's welfare. Often these cases can be resolved through mediation and cooperation, The PRRA would push attorneys to take an adversarial posture, with the government refusing to concede its own error and attorneys for parents refusing to compromise and move forward in children's best interests.
Illustration: One of my former students, Cathy Miller, is an avid advocate for parents' rights. Cathy reports that she can often use the system to her clients' advantage by enlisting the agency that wrongfully suspected her client of abuse or educational neglect to help obtain the housing, day care slot, or special education placement that client really needs in order to make life better for her child. Cathy uses the Family Service Plan creatively and negotiates to help her clients get what they really need, rather than to vindicate their positions. If her livelihood depended on "winning" and the agency's budget depended on never "losing" or admitting it was wrong, these cases would drag on with great detriment to the adults and especially the children involved.
This statement has raised only some of the potential pitfalls in this legislation. The objectives of this Bill are worthwhile, but they can and should be accomplished through carefully drafted and tightly focused pieces of specific legislation addressing clearly defined areas of legitimate concern. For example, concerns over infringements on parental authority by child protective services agencies can and should be addressed by amending existing laws such as the Adoption Assistance and Child Welfare Act to provide a cause of action by parents and children against an agency that fails to make reasonable efforts to prevent removal of the child from his home or fails to reunify children with their families. Concerns about interference in education and home schooling can be addressed by laws directed specifically to these issues.
The broad scope and vague language of the PRRA presents great risks for unintended applications and confusing can law, and threatens to draw scarce resources away from local efforts to improve the lives of families and children. Congress should be extremely cautious about entering this area of traditional state concern in the absence of compelling evidence that the current laws are flawed. The proposed federal legislation "I compound the problem of erroneous over interventions and under intervention by adding to the complexity of this already daunting area of the law, and adding to fiscal burdens of local governmrit, taxpayers, and schools, thus taking scarce resources away from meeting the needs of families and children.