Substantive Issues

 Minority as a Legal Status

 Chronological age rules
 Common law—minor/juvenile is any person who had not attained the age of majority as prescribed by law
 Age 21 = full legal capacity
 Age 14 = fully responsible for criminal conduct
 Modern statutes—obtaining legal age does not assure that one will enjoy all the rights and privileges as adults
 General age of majority = 18
 Status offenses—conduct is illegal solely due to the status of the person’s age
 Alcohol/cigarettes = 21
 Characteristics of a Suspect Class
 Immutable
 Historical oppression
 Individualized Standards for Assessing Maturity
 Juvenile law premised on assumptions that young people are vulnerable, dependent, and incompetent
 Parents are in a position to put the most “peer pressure” on a minor
 Parents have a degree of discretionary authority to influence
 Ideally, informed consent standards of legal competence should focus on two aspects of cognitive functioning: (1)
capacity for reasoning and (2) understanding
 Adolescents appear to focus less on protection against losses than on opportunities for gains in making choices
as compared to adults
 This does not mean they lack capacity for reasoning
 Rights of Juveniles
 Protectionist theory—child has a liberty interest, but also a welfare interest
 Welfare interest = physical safety, growth, affection, education)
 Personhood theory—people have the ability to shape their own lives
 Development of rational thinking and understanding consequences doesn’t happen in a day; the law ignores
that this is a transitional process
 The Child and the Family
 The Interests of Parent, Child, and State
 While the SC has determined that parental autonomy in the control of their children’s upbringing is of
constitutional dimension, the contours of that constitutional interest are not well-defined
 Meyer v. State of Nebraska (1923) (schoolteacher giving German lessons to 10-year-old in contravention to NE
law)
 Parents have a right/liberty interest in the child’s upbringing/rearing; education; religion
 State has an interest in
 State has power to make a curriculum, compel attendance, and make reasonable regulations
 SC recognizes that parent’s interest can trump a state’s interest
 Teacher has an interest in his job/income
 Meyers is NOT prepared to accept the child’s interest yet
 Pierce v. Society of Sisters (1925) (state law requires all children attend public school in the district of child’s
residence)
 Education implicates 3 main constitutional interests:
 (1) parent—liberty interest in how child should be educated
 (2) state—(a) functional society/citizen based AND (b) setting educational standards
 (3) child—only ‘right to education’ when there is a compulsory education law = gives property
interest
 (*) private school—schools have property interest in their profession that state law was essentially
stripping away
 Prince v. Massachusetts (1944) (woman convicted for violating MA child labor laws for permitting child to sell
Jehovah Witness magazines)
 Court recognizes parent’s have liberty interest, but that the parent’s liberty interest is NOT absolute over
the well being and protection of the child
  Parens patriae—the government (or any other authority) regarded as the legal protector of citizens unable to
protect themselves
 The state’s authority over children’s activities is broader than over actions of adults—a democratic society
rests, for its continuance, upon a healthy, well-rounded growth of young people into full maturity as
citizens
 Parents can make martyrs of themselves, but they are not free to make martyrs of their children before they
have reached the age of full and legal discretion when they can make that choice for themselves
 Wisconsin v. Yoder (1972) (WI has compulsory education until 16, but Amish community stops sending children to
public school after 8th grade b/c educational system conflicts w/ their mode of life and religious faith, which are
inseparable and interdependent)
 State interest: (1) maintaining an educational system and (2) creating self-sufficient citizens
 Amish satisfy this in their own system
 Prince does not apply, b/c stat is not worried about the threat to children’s safety, peace, or order
 Test: compelling state interest
 Parent interest: consistent with Pierce (parents have liberty/right to control education)
 Child interest:
 This case finally recognizes a child interest
 Dissent has issue, b/c child has no mechanism to assert their interest in court
 UNLESS parent’s deprivation of education meets the definition of neglect in the state
 Care of the Child
 Custody
 Old common law = child was property of father; 19th century = “tender years” presumption in favor of mother;
now = “best interest” standard (broad discretion to judge)
 Best Interests of the Child
 Kennedy v. Kennedy (1987)
 Determination of child custody must be based on the best interests of the child, requiring
consideration of “all relevant factors” including those enumerated by statute
 Pikula rule—custody goes to primary caregiver
 But when facts demonstrate that responsibility for and performance of child care was shared by
both parents in an entirely equal way, then no preference arises
 Family Visitation
 Troxel v. Granville (2000) (WA law allows grandparents to petition for visitation of the grandchild; mother of
children opposed petition)
 Parent interest: liberty in the care, custody, and control of their children
 The language of the statute is super broad—the language effectively permits any 3rd party seeking
visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court
review
 There is a presumption that fits parents act in the best interests of their children
 Burden should be on grandparent to prove (1) a beneficial relationship, (2) that it was in child’s
best interest to have this beneficial relationship, and (3) that it won’t substantially intervene
with fit parent’s ability to make decisions with child
 The problem w/ grandparent statute is how they are drafted too broadly
 Need to add substance to “best interest” beneficial relationship
 If narrow may be constitutional, but they eat against the grain of the trilogy (i.e., the parent, child, and
state)
 Hard to square w/ fit parent’s constitutional rights
 Neglect and Endangerment
 Parents owe a duty of support and care to their children
 Failure to adhere to this duty results in abuse, neglect, and endangerment to the child, triggering state
intervention
 In the Interest of D.K. (1976) (baby frequently hospitalized prompting a state social worker filing for a preliminary
investigation into whether child was a neglected child under the SD statute)
 A finding that a child is neglected or dependent comes after an adjudicatory hearing to determine if the
allegations in the petition are supported by a preponderance of the evidence (in SD)
  The evidence in the case showed a frequency of hospitalization; no food at home; failure to adhere to
special care and special needs
 Parents have a fundamental right to their children; However, this right is not absolute and must be balanced
against het state’s duty to protect children within its borders
 In balancing the interests, there must be a showing of neglect or dependence by a preponderance of the
evidence
 Absent evidence of potential harm, the state’s interest in protecting the child is outweighed by the
legitimate parent interest in retaining custody of the child
 Purpose of child abuse statutes are to protect the state’s interest in protecting the child from a dangerous
condition
 Abuse/neglect statutes are a legal skeleton—have to put the flesh (facts) on it
 In re Matthew S. (1996) (mother’s delusions provide sufficient evidence to support the conclusion that the minor is
at risk of suffering emotional damage as well as being left without any support for food, clothing, shelter, or
medical treatment)
 Emotional damage can equal abuse
 Child abuse statutes don’t need to be reactive in nature—they can be proactive if it is reasonably foreseeable
that harm will occur to the child (i.e., if foreseeable, then state can intervene)
 L.L. v. Colorado (2000) (children removed to foster care following order the found abuse and neglect by a
preponderance of the evidence; DHS later sought permanent placement that terminated of visitation rights until
children were 18)
 First question: Is there an interest?
 Parent: interest in raising their children
 State: interest in protecting children
 Second question: What is the standard?
 SC has concluded that due process mandated a higher standard of proof than a preponderance of the
evidence standard when parental rights were being permanently terminated
 Standard turns on both the nature of the threatened private interest and the permanency of the
threatened loss
 Standards:
 Dependency and neglect proceedings = preponderance of the evidence
 Permanent guardianship = somewhere between the two
 Termination of parental rights = clear and convincing evidence
 Protecting the Health of the Child
 Constitutional Interests
 State interest: (1) preservation of life, (2) prevent suicide, (3) protection of third parties, (4) preserve the integrity
of the medical community
 Parent interest (mother and father separately): (1) providing medical care to the child, (2) approving/consenting
to procedures, (3) usually have a another right as well (e.g., religion)
 Physical Health and Religious Practice
 In re Fetus Brown (1997) (pregnant mother refuses blood transfusion required to safe life of mother and child based
on religious belief)
 Religious based objections to medical treatment find constitutional protecting under the 1 st amendment
 The right to refuse treatment is based on the doctrine of informed consent, but the right is not absolute,
the state may intervene if the state’s interests outweigh the interests of the patient
 In balancing the mother’s right to refuse medical treatment against the state’s interest in the viable fetus, the
State may not override a pregnant woman’s competent treatment decision to potentially save the life of the
viable fetus (i.e., the court cannot impose a legal obligation upon a pregnant woman to consent to an
invasive medical procedure for the benefit of her viable fetus)
 In the matter of Cabrera (1989) (child had stroke w/ a blood transfusion being the only medical cure; mother would
not consent on account of religion)
 The right of the parent to control every aspect of a child’s life is not absolute
 In cases where harm to the physical or mental health of the child is demonstrated, these legitimate state
interests may override the parents’ qualified right to control the upbringing of their children
  While religious belief is protected, action stemming from that belief is not always protected (e.g., can’t
refuse a mandated vaccine)
 In the Interest of D.L.E. (1980) (mother and young child refuse medical treatment b/c of religion that calls for
prayer healing over modern medical care)
 WHAT WAS THE RULE FOR THIS CASE?
 In re E.G. (1989) (17-year-old and mother both refuse blood transfusion on the basis of religious belief)
 Although the age of majority is 18, age is not a strict barrier; many constitutional rights phase-in with
maturity
 The SC has adopted a mature minor doctrine that allows for women under the age of majority to undergo
abortions w/o parental consent
 Mature minors may possess and exercise rights regarding medical care that are rooted in the state’s
common law
 At trial, judge must determine whether a minor mature enough to make health care choices on her own b/c: (1)
state public policy values the sanctity of life and (2) the state has parens patriae power to protect those
incompetent to protect themselves
 If the evidence is clear and convincing that the minor is mature enough to appreciate the
consequences of her actions, and that minor is mature enough to exercise the judgment of an adult,
then the mature minor doctrine affords her the common law right to consent to or refuse medical
treatment if it outweighs the state’s 4 interests in medical care
 43-247
 Mental Health
 Child liberty interest is not absolute; the question of where it is being exercised
 Most of the time, parent’s interest will govern
 Parham v. J.R. (1979) (class action suit for GA state mental hospital; issue was whether GA’s voluntary
commitment procedures for minors violated the Due Process Clause b/c statute allowed parent to volunteer child
for treatment subject only to board review) [good case to show balancing interests of children and parents]
 Due process balancing act:
 (1) private interest
 Parent: liberty interest in raising their children
 Child: liberty interest in not being bodily restrained; wrongful label b/c improper decision by state
hospital superintendent
 (2) risk of error (in this case, value of future safeguards vs. what are the costs)
 The risk in the parent’s decision to have a child institutionalized is sufficiently great that some kind of
inquiry should be made by a neutral factfinder
 Fact-finder (staff physician) has authority not to admit if not medically necessary and admission is
continually reviewed
 (3) government interest
 Confining its costly mental health facilities to cases of genuine need, not imposing unnecessary
procedural obstacles
 It is not in the state’s best interest to let a parent walk away
 The additional safeguards of GA’s process decided the case—a more formal process wouldn’t have done
anything
 Child Abuse and Institutional Neglect
 Constitutional Issues
 Parental discretion in discipline
 Common law allowed parent to use reasonable disciple to address the fault of the child
 Discipline is constitutionally protected; abuse is not constitutionally protected [we are trying to find the
line between the two]
 Statutory provisions
 Risks of child/abuse statutes
 Don’t draft law that focuses on conclusions (e.g., physical injuries)—this will not allow state to reach
children who do not suffer a discernible injury
 Too specific to include all abuse or overbreadth
 Sometimes parental conduct won’t meet criminal standards, but will meet civil standards
  Neb. 28-707
 Neb. 43-247
 State v. Sinica (father charged w/ child abuse for “cruelly punished”)
 Challenged vagueness of statute (i.e., is “cruelly punished” defined w/ sufficient definiteness?)
 Court says someone of normal intelligence could know what is off limits (is this the standard?)
 Statute not intended to be too broad
 State v. Meinert
 Statute too vague
 Criminal vagueness is higher issue than civil
 Scope of “abuse”
 In the Matter of Shane T. (father emotionally abuses son; state statute criminally and civilly defines emotional
abuse)
 Physical abuse usually more measurable than emotional injury
 Court held force is not required to get to the emotional injury
 Defining fact was a showing of a PATTERN OF BEHAVIOR
 Mom is also implicated, because she allowed injuries to happen (i.e., didn’t stop dad)
 Mom could have protected herself by getting a protection order shelter or starting divorce proceedings
 Fright is not usually a sufficient defense for a parent
 Scope of “a child”
 Whitner v. State
 Fetus = child
 Adjudicating Child Abuse
 Looking at NEXUS b/t injury seen on child and conduct of the adult
 Questions is ‘how do you prove abuse and neglect?’
 Have to show NEXUS b/t what child is saying/showing in/on body and some conduct of the adult
 Evidence/testimony can fill this gap
 Does not require harm to occur to charge/be successful in a suit (e.g., driving drunk w/ child may be
adjudicable)
 Evidence that isn’t widely known or accepted will have to meet Daubert standard
 (1) has the science proposed by the expert been peer reviewed?
 Is it known and relied upon in the field?
 (2) is it scientifically based?
 (3) is there a higher risk of error in applying such a syndrome/theory?
 Concerned about Evidence Rule 403 (unfairly prejudicial)
 State v. Wilkerson (resolving whether expert medical opinion having to do w/ battered child syndrome was
improper)
 Battered child—refers to a child who died as a result of multiple injuries of a non-accidental nature
inflicted by someone other than the child upon the child
 Particularly, that the injuries are multiple in terms of distribution on the body and in time of infliction
 It is characterized by injuries in non-characteristic places
 Test for expert testimony: whether the opinion required expert skill or knowledge in the medical or
pathologic field about which person of ordinary experience would not be capable of satisfactory
conclusions, unaided by expert information form one learned in the medical profession
 Testimony on battered child syndrome is giving a diagnosis to the child; expert does not weigh in on
who the perpetrator is
 Case shows battered child syndrome is not junk evidence
 People v. Walkey (issue was whether the court erred in allowing a doctor to testify about battering parent
syndrome)
 Battering parent syndrome—one of the factors of a child abuser was having been abused oneself as a
child; suggests it was less of a choice and more of a psychological inclination
 Courts disallow evidence to show defendant fit within the battering parent profiles, reasoning
character evidence in criminal cases may not be used to prove a defendant acted in conformity with
such character
 Nature and extent of potential prejudice renders it inadmissible
  People v. Phillips (whether testimony on Munchausen syndrome by proxy to establish motive is admissible
when physician never examined defendant)
 Munchausen Syndrome by Proxy—individual either directly or through the vehicle of a child, feigns,
simulates, or actually fabricates a physical illness
 While a prosecutor ordinarily does not need to prove motive as an element of a crime, the absence of
apparent motive may make proof of the essential elements less persuasive; the doctor’s testimony was
intended to fill the gap because the defendant’s behavior didn’t have an explanation
 Doctor answered hypothetical questions on the syndrome, but refused to render an opinion on
defendant because he had not examined her, but said that it sounded like it might fit the bill
 The evidence code has boundaries surrounding expert witnesses
 In this case, the existence, nature, validity, and applicability to these facts of the phenomenon
characterized as Munchausen syndrome by proxy are matters sufficiently beyond common experience
that expert opinion would assist the trier of fact
 A professional physician may rely upon medical texts as the basis for testimony
 The studies show intentional poisoning of infants to be another form of child abuse
 The jury is allowed to give whatever weight they want to an expert witness
 Unexplained injuries can still fall within abuse/neglect
 Steward v. State (whether child sexual abuse syndrome, profile, or pattern evidence is admissible to prove that child
abuse occurred in prosecutions for child molestation)
 Child sexual abuse accommodation syndrome—typic behavior of sexually abused kids includes (1)
secrecy, (2) emotional helplessness to resist or complaint, (3) entrapment and accommodation, (4)
delayed, conflicted, and unconvincing disclosure of the abuse, and (5) retraction of the allegations in an
attempt to restore order
 Often comes in to rebut defense calling child’s credibility into question
 Reliability of child sexual abuse accommodation syndrome
 Reliability may be established by either judicial notice or by the proponent of the scientific testimony
providing sufficient foundation to convince the trial court that the relevant scientific principles are reliable
 For testimony, ask:
 (1) is this a proper subject for expert testimony? (does judge/jury need this info)
 What is the evidence coming in for?
 (a) to tell that sexual abuse occurred
 Substantive evidence
 Challenged by scientific community b/c traits not exclusive to this syndrome; could
be explained by something else
 More prejudicial
 (b) to show victim’s attitude is similar to other abused children
 i.e., rebuttable evidence toward explain child’s unexpected behavior
 more probative
 (2) have to balance 702 (state Daubert rule) with 403 (i.e., balance probative value vs. prejudicial
effect) —can jury separate evidence about child from evidence about action by defendant
 402—general admissibility
 403—unfairly prejudicial
 State 702—expert testimony threshold (essentially a Daubert rule)
 Maryland v. Craig (whether one-way closed-circuit television testimony violates confrontation clause and
defendant’s 6th amendment right to face accuser)
 The central concern of the confrontation clause is to ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact
 The rights guaranteed by the confrontation clause include:
 Personal examination
 Statements given under oath
 Forces witnesses to submit to cross examination
 Permits jury to observe demeanor of witness for credibility
  The MA statute clearly interrupts or reduces the effectiveness of these rights, but that does not mean it is
unconstitutional; still have to ask whether the use of the procedure is necessary to further an important state
interest
 State interest: protection of minor victims of sex crimes from further trauma and embarrassment
(compelling interest)
 State must make an adequate showing of necessity
 The finding of necessity is case-specific; particularly:
 One-way closed circuit is necessary to protect the welfare of child witness
 Child witness would be traumatized by the presence of the defendant
 The emotional distress suffered by the child witness in the presence of the defendant is more than
de minimus (i.e., more than mere nervousness or excitement or some reluctance to testify)
 Basically, where face to face confrontation causes significant emotional distress in a child witness, there is
evidence that such confrontation would disserve the conformation clause’s truth-seeking goal
 Effect of this case is making an exception to the 6th amendment for a public policy concern
 Courts have found the following to be constitutional methods of child testimony in sexual assault causes were
an adequate showing of necessity was met:
 (1) behind screens
 (2) chambers testimony after showing that trial testimony would lead to harm (need mental health expert
to establish this)
 Neb. Rev. Stat. §43-279.01
 (1)(e)—right to confront and cross-examine witnesses
 Guarantees confrontation in civil area from due process clause of the 14th amendment (if criminal,
then 6th amendment)
 If balancing then:
 State’s interest in protecting child from trauma/mental health
 Parent’s right to fair trial; demeanor goes to credibility
 look at whether it increases, decrease, or leaves the same the fairness of the trial
 question to ask: whether the procedure used to get around confrontation will still produce a
fundamentally fair trial under due process
 When we look at abuse/neglect, we are looking at it from a civil law standard (requires less than beyond a
reasonable doubt)
 Sometimes abuse/neglect doesn’t include criminal conduct
 If it does, then it is prosecuted criminally by a prosecutor (but not in juvenile court), but standard of
proof will be beyond a reasonable doubt
 Reporting Statutes
 Reporting statutes impose duties upon certain persons or entities to report any abuse of which they know, suspect,
or have reason to believe is occurring
 Statutorily obligated reporters who fail to report known or suspected abuse are themselves subject to criminal
liability
 Landeros v. Flood (using unreported battered child syndrome as legal theory for plaintiff’s cause of action for
personal injuries)
 Deshaney v. Winnebago County Department of Social Services (social workers received complaints that child was
being abused by his father and had reason to believe this was the case, but nonetheless did not act to remove child
from his father’s custody)
 Court says nothing in the language of the due process clause requires the state to protect the life, liberty,
or property of its citizens against invasion by private actors
 There is no affirmative right to government aid
 This case stands for the fact that not every court action turns itself into a constitutional issue (i.e., child did
not have a liberty interest at stake to be free from bodily harm inflicted by his father under the due process
clause)
 Due process is not a clause of protection; it is a clause of limitation—limiting what the government
can do
 HOWEVER, if this had happened in a foster home, would want to know:
 Background checks?
  Screening procedures?
 Placement procedures?
 Foster home licensed?
 History in the home?
 How does the state check on the ward? Do they physically see the ward?
 Neb Rev. Stat. §28-711
 Broad
 Any person w/ reasonable cause to believe child is subject to abuse/neglect = mandatory reporter
 Generally, calls lack reliability (only tell one side of story)
 Central Registries
 Central registries often lead to loss of reputation, but to be a liberty interest, has to meet stigma plus
 Collateral consequences as a result of being on the registry (e.g., denial of license or employment prospects)
 Valmonte v. Bane (whether state’s maintenance of a Central Register that identifies individuals accused of child
abuse or neglect, and its communication of the names to potential employers in the child care field implicates a
protectible liberty interest under the 14th; and if so, whether the statutory procedure established to protect the liberty
are constitutionally adequate)
 Individual liberty interest: right to securing future employment
 stigma plus—loss of reputation must be coupled with some other tangible element in order to rose to
the level of a protectible liberty interest
 Government interest: protection in wellbeing of children
 Risk of erroneous deprivation: depends on statutory procedure
 Usually have a variance of standard of proof; in this case:
 Credible evidence to get on
 Preponderance to get off
 Big risk of error in the case, because higher standard to get off than to get on = big no-no
 Abuse Outside the Family Constitutional Issue
 Child Sex Abuse and Institutions
 Organizations typically argue that the employee’s sexual abuse of the child was outside the “scope of
employment” and, therefore, the organization should not be held responsible or that they were not negligent in
the oversight of the employee
 In cases involving organizations or churches, always remember and address mandatory reporting
statutes
 Doe 6 v. Penn. State Univ. (2013) (whether actions by defendant who PSU authorized to use the premises and
facilities for charity work without supervision is liable under state law when minor sexually abused in shower)
 Under state law of respondeat superior, a master is liable for acts of his servant done in the course of
employment and within the general scope of his authority, particularly if:
 It is of the kind he is employed to perform
 It occurs substantially within he authorized time and space limits
 It is actuated, at least in part, by a purpose to serve the master
 If force is intentionally used by the servant against another, the use of force is not unexpectable by the
master
 Sexual abuse of minors usually falls outside of scope of employment, b/c such acts are not of the kind and
nature that defendant was employed to perform and not to employer’s benefit
 Fearing v. Bucher (priest had a trusting relationship with child, and began to abuse him during their talks)
 Ct has held 3 requirements must be met to establish conduct was within scope of employment: (1) conduct
must have occurred substantially within the time and space limits authorized by employment; (2) the
employee must have been motivated by a purpose to serve the employer; (3) the act must have been a kind
that the employee was hired to perform
 By virtue of his relationship with child, abuser gained the opportunity to be alone with plaintiff, to touch
him physically, and then to assault him sexually
 These activities were (3) committed in connection with priest’s employment as a youth pastor
(building a trusting relationship), (1) they were committed with the time and space limitations of that
employment, and (2) were committed out of a desire, at least partially, to fulfill duties as pastor and
priest
 Child sex abuse and religion
 Gibson v. Brewer (liability of religious organizations)
 Respondeat superior = dismissed b/c not within scope of priest’s employment (even though previous case
held the opposite)
 Negligent hiring/ordination/ retention of clergy = dismissed
 If neutral principals of law can be applied without determining questions of religious doctrine, polity,
and practice, then a court may impose liability
 Questions of hiring, ordaining, and retaining clergy necessarily involve interpretation of religious
doctrine, policy, and administration
 Judicial inquiry into hiring, ordaining, and retaining clergy would result in endorsement of
religion, by approving one model for church administration
 Negligent failure to supervise clergy = dismissed
 Adjudicating the reasonableness of a church’s supervision of a cleric (i.e., what the church “should
know”) requires inquiry into religious doctrine
 Intentional failure to supervise clergy = valid claim
 The right of free exercise does not relieve and individual of the obligation to comply with a valid and
neutral law of general applicability on the ground that the law treats certain conduct different than the
religion
 Religious conduct intended to harm need not be tolerated under the First Amendment
 Negligent infliction of emotional distress = dismissed
 To judge this, a court would judge the reasonableness of religious beliefs, discipline, and government
 Independent negligence of the diocese: dismissed
 Negligence exists in a particular situation dependent on whether a reasonably prudent person would
have anticipated danger and provided against it
 In order to determine how a reasonably prudent diocese would act would entangle itself in religious
doctrine, policy, and administration
 Redwing v. Catholic Bishop for Diocese of Memphis (case expands on ecclesiastical abstention doctrine)
 Ecclesiastical abstention doctrine reflects the principal that secular courts in the U.S. should usually
abstain from adjudicating issues involving theological or spiritual judgment or the internal
governance of religious bodies and, instead, should leave these matters to appropriate religious tribunal
 Born out of the establishment clause
 However, religious institutions exist and function in the context of the broader secular community
 Applying a secular standard to secular conduct that is tortious is not prohibited by the
Constitution
 Statutes of Limitations
 Statutes of limitations are judicial housekeeping rules; they set the deadline for pressing criminal charges or
filing a civil lawsuit
 Redwing v. Catholic Bishop Diocese of Memphis
 Courts construe exceptions to statute of limitations carefully to ensure they are not extended beyond their
plain meaning
 A defense predicated on the statute of limitations triggers the consideration of (1) the length of the
limitation period, (2) the accrual of the cause of action, and (3) the applicability of any relevant tolling
doctrines
 Congress has enacted statutes that toll the statue of limitations for minors and adults who lack capacity to
sue
 Tolling stops after age of majority is reached or capacity is restored
 Court has recognized (1) equitable estoppel and (2) fraudulent concealment as tolling doctrines
 Equitable estoppel—tolls the running of the statute of limitations when the defendant has misled the
plaintiff into failing to file suit within the statutory limitations period
 Only applies when the defendant engages in misconduct (specifically that the defendant misled
the plaintiff)
 Facts and circumstances inquiry that weighs the misleading/unfair conduct against the public
policy favoring enforcement of the statute (e.g., stability and ease of accurate fact-finding)
 Fraudulent concealment—statute of limitations is tolled when the defendant has taken steps to
prevent the plaintiff from discovering that he was injured
  Plaintiff must prove four elements:
 (1) that the defendant affirmatively concealed the plaintiff’s injury or the identity of the
wrongdoer or failed to disclose material facts regarding the injury or wrongdoer despite a
duty to do so
 (2) that the plaintiff could not have discovered the injury or the identity of the wrongdoer
despite reasonable care and diligence
 (3) that the defendant knew that the plaintiff had been injured and the identity of the
wrongdoer
 (4) that the defendant concealed material information from the plaintiff by withholding
information or making use of some device to misled the plaintiff in order to exclude
suspicion or prevent injury
 Sliney v. Previte (MA statute extends limitations period from three years to thirty-five years, including a
retroactivity provision and an emergency preamble)
 There are 3 principal factors in evaluating the constitutional reasonableness of applying a statute
retroactively
 (1) the public interest that motivated the legislature to enact the state (i.e., the state interest)
 State interest: to preserve public safety and protect children who have been abused by
enabling them to seek a remedy for severe injuries that they did not appreciate for long
periods of time due to the abuse
 (2) the nature of the rights affected by the retroactivity (i.e., private interest)
 Private interest: procedural due process right to adequately defend himself
 (3) the scope of the impact of the statue on those rights
 Here, while the scope is wide, it does not create new liability
 Embry v. President & Fellows of Harvard College (plaintiff lost suit but while appeal was pending, a new law
extended the statute of limitations for child abuse cases)
 Institutional Based Child Neglect
 Lindsay v. Dept. of Social Services (owner and director of daycare left 3-year old child in van on two separate
occasions)
 Hearing found that defendant had negligently failed to provide minimally adequate supervision
 It is within the power of social services to define neglect
 The department’s regulatory definition of neglect allows it to identify and provide services to any child
whose caretaker is failing to provide a “minimally adequate” level of “essential” care for the child
 There need not be an injury for there to be a finding of neglect
 Court is looking at the risks to the child—not the actual injury (e.g., the risk of dying of heatstroke or
being kidnapped)
 Evidence standard
 Reasonable cause—standard used to support an allegation of abuse or neglect
 The department wants to be able to act quickly when a child is being abused—a higher standard
would make it more difficult to protect children
 The initial decision by an investigator to support an allegation only needs reasonable cause to believe
that an incident of abuse or neglect by the caretaker did occur
 Caretaker—includes any person “entrusted with the responsibility for a child’s health and
welfare”
 Reasonable cause to believe—a collection of facts, knowledge, or observations which tend to
support or are consistent with the allegations, and when viewed in light of the surrounding
circumstances and credibility of persons providing information, would lead one to conclude that a
child has been abused or neglected
 Due process
 Private interest: property interest in license to operate day care; liberty interest in pursing employment of
her choice
 Government interest: protect and treat children who may be suffering abuse or neglect
 Risk of error:
 Ex parte Tradwick (state employee licensed facility and lied to parents about a pending abuse investigation when
parents called to inquire about the facility; parents sue)
  In order to claim state-agent immunity, the state bears the burden of demonstrating state is entitled to immunity
for official action
 Burden shifts to plaintiff to show that the agent acted willfully, maliciously, fraudulently, in bad faith, or
beyond his or her authority
 A state agent acts beyond authority (and is therefor not immune) when he or she fails to discharge
duties pursuant to detailed rules or regulations
 A state agent may be immune from civil liability in his or her personal capacity when the conduct is related to
duties imposed on a department or agency by statute, rule, or regulation, insofar, as the statute, rule, or
regulation prescribes the manner for performing the duties and the state agent performs the duties in that
manner
 Statutory duty to keep information regarding complaints confidential is not enough, because rules allow
her to release information if it would potentially prevent abuse or neglect of children
 Medical Neglect
 Jacobson v. Massachusetts (1905) (whether liberty interest in invaded when state punishes a refusal to submit to a
vaccination with fine or imprisonment)
 Private interest: liberty interest in bodily integrity
 Government interest: public health and safety of society and the health and wellbeing of children
 Risk of harm: low b/c not required for people whose health would be seriously impaired
 Consistent with court’s finding in Prince
 Educational Neglect
 Brown v. Board (1954) (challenging segregated schools)
 Today, education is one of the most important functions of state and local governments
 School attendance is compulsory
 Intangibles
 Emotional harm to child (now a recognized type of abuse)
 Feeling inferior
 Foundation of education to be more well-rounded
 Expose to different cultures/ backgrounds
 There’s more to education than just a building
 There’s more to development than classwork
 Corey H v. Bd. of Educ. Of Cty of Chicago (children w/ disabilities segregated into unequal learning environments)
 It is the responsibility of public school to educate all of its students
 Children were separated based on their disability label, not on resources or needs/accommodation
 Individuals with Disabilities Education Act (IDEA) mandated educational opportunities be in the lease
restrictive environment
 Each affected student should have individualized education plan
 Should only separate when nature of disability (w/ use of aid) precludes learning in the regular environment

Procedural Issues

 Getting into Court

 Process
 If state intervenes into private family life, it has to file a petition w/in 48 hours
 Petition may
 Ask children are removed
 Asks custody be vested with health and human services, but children remain in the home
 No-fault petition (i.e., child lacking parental care but not as the fault of the parent
 Argument can be made that self-medicating with drugs is no-fault (but not a good argument)
 If parent is also a minor: can’t contract, can’t rent (housing), can’t take out a credit card
 Child has mental illness: parents may not be able to provide the structure and supervision required by
the child
 Analyze whether petition has facts that implicate 247
 247 is the skeleton; the facts are the flesh
 Situation that warrants removal from the parental home
 State files petition (separate from motion for custody)
  Parents have rights under 279.01
 Attorney
 Children have their own attorney/guardian ad litem under 42-272
 Guardian ad litem looks after social interests of child first, and expands that into the child’s legal
interests
 Guardian ad litem cannot lose their objectivity
 They do not represent the state
 They should be in the middle of the state and parents
 Motion for custody w/ placement to exclude the home parent A and/or parent B—can be done without a
hearing (ex parte)
 Evidence needed to remove children
 Removal needs evidence
 Affidavit
 This affidavit will have to stand up in court at the hearing
 Prove foundation (e.g., this type of conclusion is beyond the training of a social worker, it
needs a medical confirmation)
 Hearsay
 The further you get from the initial information reported, the larger risk of error
 Parent’s Due Process rights
 Parent gets a hearing AFTER the ex parte ruling
 Must be held in a reasonable amount of time
 14 days in the outerbrink of reasonableness
 Safer approach is between 3 and 7 days
 The purpose of the hearing is to test the validity of the ex parte action
 In re Interest of R.G. (NE juvenile court) (mother challenged juvenile court order that allows social services to take
custody)
 This case demonstrates the issues in the process of transferring custody from a parent to the state
 An ex parte order is temporary, and not appealable; but the later detention order is a final, appealable order for
persons with a substantial right (i.e., liberty interest in raising children (substantial right) that has been affected
by the order)
 Due Process: The examination of a claim of deprivation of a liberty interest w/out due process of law requires
3-stage analysis:
 Ex parte order:
 Whether there is a protected liberty interest at stake: raising his/her child
 If so, what procedural protections are required
 Private interest: liberty interest in raising child
 Government interest: care and protection of children within its borders
 Risk of erroneous deprivation and probable value of additional or substitute procedural
safeguards:
 Neb Rev .Stat. §43-248 authorizes the warrantless seizure of a juvenile “when such juvenile
is seriously endangered in his or her surroundings and immediate removal appears to be
necessary for the juvenile’s protection”
 While requiring an adversarial hearing before any order is entered, as the mother suggests,
would undoubtedly reduce the likelihood of erroneous seizures, it would at the same time
impose an unreasonable hindrance on taking emergency action to save an endangered
juvenile.
 The facts of the case are examined to ascertain whether there was a denial of that process which was
due
 the ex parte temporary detention order was akin to a temporary restraining order in that it was, by
its terms, of limited duration and designed to preserve the status quo until an adversarial hearing
could be held
 the State may not, in exercising its parens patriae interest, unreasonably delay in notifying a
parent that the State has taken emergency action regarding that parent's child nor unreasonably
delay in providing the parent a meaningful hearing
 Detention order:
  Whether there is a protected liberty interest at stake: raising his/her child
 If so, what procedural protections are required
 Private interest: liberty interest in raising child
 Government interest: care and protection of children within its borders
 Risk of erroneous deprivation and probable value of additional or substitute procedural
safeguards:
 Due process principals require that the mother has a meaningful opportunity to be heard on
the issue of whether a detention order should have been issued
 The facts of the case are examined to ascertain whether there was a denial of that process which was
due
 Mother appeared at the hearing
 Evidence: A hearing to determine who shall have custody of a juvenile pending an adjudicated is dispositional;
therefor, §43-283 applies and relaxed rules of evidence may be followed
 Neb. Rev. Stat. § 43-272
 Neb. Rev. Stat. § 43-272.01
 Neb. Rev. Stat. § 43-284
 Neb. Rev. Stat. § 43-279.01
 Parties to Proceedings
 In re Interest of Trenton W. (although children left in hotel room, there was no definite risk of harm despite fact that one
child (13) was looking after another (infant)
 Evidence
 The factual allegations of a petition seeking to adjudicate a child must give a parent notice of the bases for
seeking to prove that the child is within the meaning of § 43-247(3)(a)
 Evidence to which the parent doesn’t have notice of should not be sustained, because even though neglect
proceedings are not subject to the strict rules of evidence, due process requires that the evidence should appear
in the petition/affidavit
 Burden of Proof
 At the adjudication stage, in order for a juvenile court to assume jurisdiction of a minor child under § 43-
247(3)(a), the State must prove the allegations of the petition by a preponderance of the evidence, and the
court's only concern is whether the conditions in which the juvenile presently finds himself or herself fit within
the asserted subsections of § 43-247.
 The state does not have to prove that the juvenile has actually suffered physical harm, only that there was a
definite risk of harm
 In re Interest of Solane O. (mother who did not have custody of child was not given notice of proceeding concerning her
child intervened in the proceeding and filing a motion for custody; state denied the motion)
 A parent does not need to intervene, because Neb Rev. Stat. §43-245 already extends jurisdiction over the parent of
a juvenile
 Mother should have been served notice of the proceeding despite the fact that child did not live with her
 Parental preference doctrine—a parent is presumed to be the best person to aren’t child unless and until the
state shows otherwise.
 In re Interests of Lilly S. and Vincent S. (children removed from home due to domestic violence between the parents)
 To obtain jurisdiction over a juvenile at the adjudication stage, the court's only concern is whether the conditions in
which the juvenile presently finds himself or herself fit within the asserted subsection of § 43-247.
 "Section 43-247(3)(a) outlines the basis for the juvenile court's jurisdiction and grants exclusive jurisdiction
over any juvenile 'who lacks proper parental care by reason of the fault or habits of his or her parent, guardian,
or custodian.'
 While the State need not prove that the child has actually suffered physical harm, Nebraska case law is clear
that at a minimum, the State must establish that without intervention, there is a definite risk of future
harm
 to support adjudication, there must be an evidentiary nexus between a parent's fault or habits and
the risk for harm to the child
 In Nebraska, the rights of the parent and the child are protected by the separate adjudication and dispositional
phases of the dependency proceeding.
 A petition brought under § 43-247(3)(a) is brought on behalf of the child, not to punish the parents. . . . The
purpose of the adjudication phase of the proceeding is to protect the interests of the child;
  the purpose of the dispositional phase is to determine placement and the rights of the parties in the
action. . . . It is not improper for the court to sustain jurisdiction at the adjudication phase if the State
[establishes a] lack of proper parental care in the child's present living
 Neb Rev. Stat. §43-245
 Neb Rev. Stat. §43-246
 Grandparents
 In re Interest of Kayle C. (grandparents tried to intervene in child dependency proceeding involving their grandchildren,
but were denied b/c lack of standing; appellate court reversed)
 A visitation statute gave grandparents a vested interest in the outcome of the decision of the court
 The statute gave right to visitation to grandparents if they met certain criteria: (1) Beneficial
relationship and visitation would be (2) In the best interests of the child
 The criteria ensures that the statute isn’t too broad as to constitutionally infringe on the parents
interest (see Troxville)
 If a parental right is terminated, the grandparents relationship with the child would also terminate
 If a child is adjudged dependent by a juvenile court, the juvenile court acquires the power to place the child in a
wide range of statutorily prescribed homes outside the family
 It is therefore apparent that grandparents, who are invested with a natural and abiding love for their
grandchildren, should be allowed to intervene in the dependency process unless a specific showing is made that
the best interest of the child would not be served thereby.
 Foster Parents
 In re Interest of Enyce (foster parents argue that they have interest in foster child’s disposition hearing and placement)’
 A foster parent has no right, title, or interest in the subject matter of a dispositional hearing
 A foster parent is not a necessary party to a hearing
 Foster parents’ ability to intervene is limited to presenting evidence relating to their fitness to serve as foster
parents; not in evidence relating to the placement of the child.
 If the parent had entered into adoption process with the foster parents, then the foster parents would have an interest
 Foster care, by definition, is a temporary measure for maintaining the child until the court can make a permanent
disposition
 Foster parents have no ability to control the foster child’s decisions without input and approval from a
caseworker and/or court
 Foster Care
 Foster care is intended to be an interim placement for the child until they are able to return home to their natural family
or they are adopted.
 Smith v. Organization of Foster Family for Equality and Reform (whether foster parents have a liberty interest at stake)
 The liberty interest inherent in familial privacy is not applicable to foster families, which are contractual in nature
 The state sought to interfere, not with a relationship that was created apart from the power of the state, but with
a foster family which has its source is state law and family arrangement
 The liberty interest in family privacy is based in intrinsic human rights whereas the ties that develop between
foster parents and children have their origins in an arrangement in which the State has always been a partner
 Recognizing a liberty interest in foster family would decrease the liberty of the biological family
 A parent only consents to temporarily giving up custody—they don’t owe this to the foster family
 A natural parent should not have to share their liberty interest with someone else
 A fit, natural parent should not be required to share their child with someone else
 Property interest in status as a foster parent; no property interest in being a foster parent for that specific child
 Adoption
 The adoption process creates a permanent parent-child relationship whereby persons other than the child’s biological
parents become the child’s legal parents
 Before any child is eligible to be adopted, the rights of the biological parent must be terminated
 DeWees v. Stevenson (parents denied adoption based on their insensitivity to the child’s race)
 The best interest of the child includes recognition of the child’s individual characteristics
 In making adoption decisions, state agencies cannot ignore the realities of the society in which children entrusted to
them for placement
 Disposition: the Path to Reunification or Termination of Parental Rights
 Child abuse/neglect takes form of civil proceedings in juvenile court venue
  The end goal is reunification/rehabilitation, but it doesn’t always happen, because the north start of the proceeding
is the best interest of the child
 The court will sacrifice its goals for the best interests of the child
 Terminology is more clinical
 Admit/deny, not guilty/not guilty
 Less adversarial, more solution-based
 Problem-solve/mediate the risks and harms surrounding the child
 The court does not negotiate risk, insofar as risk that leaves child exposed to hurt, harm, or danger (real or
foreseeable)
 Usually three sets of attorneys (each have professionally responsibility with regard to their role
 State—doesn’t want to win; want justice to be done
 Social services sometimes also has representation
 Defense counsel (parent)—represent parent’s interests within the bounds of the law
 Attorney cannot negotiate client’s constitutional rights for the sake of child unless the parents wish that
outcome
 Guardian ad litem (child)—represent the legal and social interests of the child
 Whenever the state intervenes in the family relationship, there will be a lawsuit
 We don’t know what flavor this lawsuit will be, but there will be a lawsuit
 Process of a proceeding
 Law enforcement/DSS has done some sort of investigation and placed information with person who makes the
filing decision (i.e., prosecutor)
 Makes decision whether or not to file a petition
 Do the facts merit a petition?
 Do the facts fit Neb. Rev. Stat. 43-247
 Do the facts merit the state’s interest in looking after children?
 If yes, what to file
 Custody
 Legal custody—decision making authority
 Physical custody—day to day supervision
 Petition options
 Petition that does not request a change in custody
 Petition to move custody placement elsewhere that would not put child at risk of harm (Is the situation
such that the children need an immediate change in situation?)
 Need an ex parte request for removal (R.G.)
 Requires affidavit signed by relevant person with specific facts (not legal conclusions, facts)
 Not appealable—rationale that this hearing has to be quick because of the importance of
removing children from dangerous situations
 Followed by protective custody hearing for removal
 (1) is there sufficient basis to remove legal custody rom the parent?
 (2) is there a sufficient basis to remove physical custody of parent?
 (3) reasonable efforts (services)—will reasonable efforts prevent removal of child from home
 i.e., before child was removed, did state try reasonable efforts to fix the situation putting
the child at risk;
 reasonable efforts do not need to be successful, just applied
 sometimes reasonable efforts are not necessary because of an exigency (e.g., sexual
molestation, meth, killing threats)
 Appealable
 Protective custody is not a trial
 Burden = preponderance of the evidence
 Strict rules of evidence do not apply (but evidence will likely follow rules of evidence
out of due process)
 Due process will apply (hearing required less than 14 days from removal)
 42-279.01—parent’s rights in hearing
 If no, what should be done instead
  Offer services designed to correct what is identified as the risk
 Services must relate to the nexus of the harm
 Pre-trial
 Normal pretrial: is it going to trial; when; can this be settled; etc.
 Adjudication (i.e., juvenile trial equivalent)
 Must be held within state statute (90 day adjudication period)
 What is at trial? (goes back to 247)
 Using facts to place conduct under 247
 Must have a nexus (connection) between child’s condition and parent’s conduct
 Issues
 Sexual abuse
 Physical abuse
 Failure to get medical care
 Munchausen by proxy
 Inappropriate caregiver
 Emotional abuse
 Extreme behavioral issue
 Etc.
 Defense—suggests it might not be a 247 issue
 Prosecution is using speculation rather than facts
 Child is not actually at risk of harm
 Burden of proof = preponderance of the evidence (51%)
 Evidentiary standards
 Daubert
 Dispositional options:
 (1) allegations are true
 (2) allegations are not true
 Disposition (sentencing)
 Court decides is this stuff fixable and/or should court attempt to fix what is broken in family (i.e., rehabilitate
and reunify family so children can return to natural parents)
 Court is not required to rehabilitate or reunify when problem reaches a certain point of gravity
 Paramount concern is best interest of child
 Rehabilitation plan based upon facts that come before the court
 Affirmative duty on parents to do what’s necessary to become fit again (therapy, addiction services,
income, housing, visitation hearing, review hearings)
 Court will ask whether the parents are making steps or progress to reunification (i.e., is everybody doing
their job?)
 Key question is how long should the court wait before they move toward some kind of permanency
 What is the permanency objective?
 Reunification
 Guardianship
 Adoption
 Rules of evidence do not apply
 Due process does apply
 Termination of Parental Rights
 Extinguishing parental rights happens in two ways:
 Voluntary relinquishment by parent
 Usually to health and human services
 Sometimes through private adoption
 Termination by court
 “best interests” remain the north star of placement
 Factor in:
 Keeping siblings together
 Ability of caregiver to met needs of the child
  Age
 When parental rights are terminated, grandparents will also lose their interest; even with grandparent visitation
statute
 43-292
 Cross with 43.272.01—same protections as abuse/neglect proceeding
 i.e., 272.01 will apply
 No double jeopardy; state can keep refiling
 State may terminate rights at the beginning of the case; do not have to wait
 Rush to terminate: (1) past termination w/ other children, (2) parent has committed homicide on a sibling or
parent of the child, (3) drugs/alcohol (sometimes)
 When there are multiple children, it may not be in the best interest to terminate or not terminate
 Look at each child individually
 You don’t always have to keep the kids together
 Generally speaking, 2 elements involved:
 (1) substantive—factual basis of allegations (i.e., the skeleton for the facts)
 Abandonment—parent had 0 contact for 6 months before filing for termination
 1 contact = token contact, and not enough to defeat abandonment proceeding
 Neglect—parent who just doesn’t do anything toward their responsibility toward the child
 Also applies if child’s sibling is neglected
 Even though they have ability to do so, they aren’t taking care of the child; prostitute
 Addiction and is not trying to stop; lewd activities; acts of prostitution
 Similar to above
 Mental health provision which prevents parent from taking care of child
 Need commentary by medical professional how illness impacts daily activity, including parenting
 Treats mental and physical illness very differently
 If you file under this section, court has to appoint guardian ad litem to represent parent’s interest
 Guardian ad litem cannot waive a substantive right of the parent (state has to prove every
allegation)
 Parent has failed to correct conditions that led to Court’s finding of neglect
 Difficult b/c need to locate witnesses from that first proceeding
 Time is not your friend in this section
 Witnesses to talk about whether parent went to therapy, services, visitation, rehabilitation, etc.
 Do you have to show failure was willful? No
 Etc.
 (2) best interests of child to terminate parental rights
 Best interests = who is able to meet moral, emotional, physical needs
 Have to prove both; but same conduct can go to both 292 reasons and best interests (e.g., shaken baby
syndrome)
 After Termination  Permanency
 Permanency: (1) guardianship, or (2) adoption
 Guardianship—transferred parental responsibility/authority to another
 Santosky v. Kramer (whether process is constitutionally due a natural parent at a state’s parental rights termination, and
if so, what process is due)
 Risk of error: (1) parents subject to termination proceedings are often poor, uneducated, or members of minority
groups, and as a result, such proceedings are often vulnerable to judgments based on culture of class bias, (2)
subjective issues/testimony, (3) no double jeopardy protections, (4) state has more protections
 Can’t prevent error and mistake, but to the extent possible, must reduce the likelihood of error
 Standard of evidence required to terminate parental rights under due process = clear and convincing
evidence
 But states could choose to enable a “beyond a reasonable doubt” standard
 Indian Child Welfare Act (ICWA)
 Indian child—“any unmarried person who is under age 18 and is either (a) a member of an Indian tribe, or (b) is eligible
for membership of an Indian tribe and is the biological child of a member of an Indian tribe. Neb. 43-1503(8)
 Each individual tribe sets their own standards for membership
 At the beginning of any state involvement, always need to inquire if Indian child is involved, BUT ICWA will not be
triggered unless tribe confirms
 Requires notice to tribe under 43-1505.01 (i.e., health and human services sends notice to tribe; prosecutor needs to
record (with proof) that notice has been given in the case file)
 Notice not required in an emergency situation under 42-1514
 Burden of proof in an adjudication for abuse/neglect under 43-1504:
 Foster care = clear and convincing
 Termination = beyond a reasonable doubt
 Must show “active efforts” (under 43-1505) to keep custody or terminate parental rights as opposed to reasonable
efforts
 ICWA rationally related to state interest
 Indian tribes are sovereign people
 w/out members = no tribe
 tribes survivability depends on protecting culture
 Shayla H
 Additional allegations still required even when children not removed from physical custody
 Active efforts required even if state not seeking to remove
 Always have to follow ICWA standards even if just filing petition while not seeking any custody