Table of Contents

THE STATUS, RIGHTS AND OBLIGATIONS OF CHILDREN........................................................................................................3

Childhood in America.....................................................................................................................................................3
Contemporary Conditions and Needs...........................................................................................................................3
Contemporary Juvenile and Family Court Systems......................................................................................................3
The Laws Evolving Conception of Childrens Status, Rights and Obligations.........................................................5
The Status of Childhood...............................................................................................................................................5
The Parens Patriae Doctrine, Parental Prerogatives, and the Childs Obligation to Obey.............................................5
May Children Articulate Their Own Interests?.............................................................................................................7
Statutory Influence.......................................................................................................................................................8
An International-Law Basis for Childrens Rights?......................................................................................................8
Perspectives on Childrens Rights.................................................................................................................................8
ABUSE AND NEGLECT..........................................................................................................................................................................9
Introduction..................................................................................................................................................................... 9
Discovering Abuse and Neglect: Reporting Statutes....................................................................................................9
The Child Protection System: A Composite Case.......................................................................................................10
Limits on Intervention..................................................................................................................................................10
Patterns of Abuse and Neglect......................................................................................................................................11
Neglect........................................................................................................................................................................ 11
Psychological Maltreatment.......................................................................................................................................12
Abuse.......................................................................................................................................................................... 12
Corporal Punishment..................................................................................................................................................13
Sexual Abuse.............................................................................................................................................................. 13
Newborns with Positive Toxicologies.........................................................................................................................14
Duty to Investigate........................................................................................................................................................15
The Prosecutors Role...................................................................................................................................................15
The Reasonable Efforts Requirement..........................................................................................................................15
Termination of Parental Rights...................................................................................................................................16
Due Process Protections for Parents...........................................................................................................................16
When Should Parental Rights Be Terminated?...........................................................................................................16
Social Class, Ethnic Racial Bias...................................................................................................................................18
Overview.................................................................................................................................................................... 18
Poverty and Race........................................................................................................................................................18
The Indian Child Welfare Act.....................................................................................................................................19
Understanding Cultural Context.................................................................................................................................19
Finding a Cure...............................................................................................................................................................19
FOSTER CARE.......................................................................................................................................................................................21
Challenges in Foster Care.............................................................................................................................................21
The Courts Role in Permanency Planning.................................................................................................................22
The Childs Right to a Family..................................................................................................................................22
The Childs Right to Services and Protection from Harm.........................................................................................23
Types of Placements......................................................................................................................................................24
Foster Parents.............................................................................................................................................................24
Institutional Care........................................................................................................................................................26
Guardianship...............................................................................................................................................................26
Independent Living.....................................................................................................................................................26
CRIMINAL ABUSE AND NEGLECT..................................................................................................................................................27
Abuse, Neglect and Child Endangerment...................................................................................................................27
Sexual Abuse..................................................................................................................................................................29
The Nature of the Problem..........................................................................................................................................29
The Basis for Criminal Intervention...........................................................................................................................29
Legal Standards..........................................................................................................................................................29
Proving the Case.........................................................................................................................................................30
Prospective Restraints on the Offender.......................................................................................................................32
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 Child Pornography.......................................................................................................................................................33
DELINQUENCY.....................................................................................................................................................................................35
Juvenile Crime in America...........................................................................................................................................35
The Juvenile Court as an Institution...........................................................................................................................35
The Juvenile Courts Original Conception..................................................................................................................35
The Contemporary Juvenile Court..............................................................................................................................36
The Contours of Delinquency.......................................................................................................................................37
Culpability: Infancy Defense......................................................................................................................................37
The Insanity Defense..................................................................................................................................................37
Transfer: Adultification of Juvenile Crime..............................................................................................................38
Delinquency Procedure.................................................................................................................................................39
Overview.................................................................................................................................................................... 39
Arrest and Custody.....................................................................................................................................................39
The Adjudicatory Hearing..........................................................................................................................................43
Disposition..................................................................................................................................................................45
Appeal........................................................................................................................................................................48
Juvenile Courts Future...............................................................................................................................................48

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 THE STATUS, RIGHTS AND OBLIGATIONS OF CHILDREN
o 3 Major Themes
o Delicate interrelationship of rights and responsibilities among children, parents, and government
o Perceptions of childrens competence as a basis for parental authority and government regulation
o Role of a childs lawyer
Childhood in America
Contemporary Conditions and Needs
o Traditional requirements for healthy child development
o Intact, cohesive, nuclear family, dependable under stress
o Relationship w/ at least one parent who is consistently nurturing, loving, enjoying, teaching, and coping
o Easy access to supportive extended family members
o Supportive community
o Parents w/ explicit and implicit education for parenthood
o Perception of opportunity during childhood w/ a tangible basis for hope of an attractive future
o Predictability about the adult environment that enables a child to take advantage of opportunities in the environment
o Dont have all of those in modern society
o Statistics
o Children comprise 24% of nations population
o Racial and ethnic composition (percentage of children)
White 59%
Black 15%
Hispanic 19%
Asian 4%
Other 4%
o Life expectancy
White 75.4 males; 80.5 females
Black 69.2 males; 76.1 females
o 19% of children live below federal poverty threshold
But thats an unrealistically low threshold so more are in dire conditions
Most live in working families
14 million children lived in families that suffered from hunger or lived on the edge of hunger
o Todays children are first generation that think divorce is normal part of life
o Also have a high child suicide rate

Contemporary Juvenile and Family Court Systems

o 1899 Cook County Illinois started the nations first juvenile court
o All states have juvenile courts in their court system (a court w/ juvenile jurisdiction)
o 3 Types of Courts in Childrens Law Practice
o Juvenile Courts
Vary in how they are organized w/in the states court system
4 arms of juvenile court jurisdiction (exclusive original jurisdiction)
Abuse and neglect (civil and criminal)
Adoption
Status offenses
Delinquency
o Unified Family Courts
Enable 1 judge, working w/ social service workers and other professionals, to resolve all matters typically
associated w/ distressed families

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 1 decision-maker remains familiar w/ the familys circumstances (so less testifying for children and less
risk of inconsistent judgments)
o Problem-Solving Courts
Courts that seek to fashion remedies for the root causes that lead many family members to return to court
over and over again
Like drug court (focus on treatment rather than incarceration)
o MO juvenile division of the circuit court
o Hybrid of juvenile and unified family courts
o Unified family courts in KC, STL, Springfield, and Boone County
o Other judicial districts in MO could create family courts by court rule but none have done it

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 The Laws Evolving Conception of Childrens Status, Rights and Obligations
The Status of Childhood
o Retain status as a child until age of majority
o Age of majority is 18 for most states
o Stanton v. Stanton EP requires that the general age for majority be the same for boys and girls
o Age of majority applies to all persons, regardless of maturity level
o UNLESS emancipated individualized determination

The Parens Patriae Doctrine, Parental Prerogatives, and the Childs Obligation to Obey
Common Law Background
o CL parens patriae doctrine gave the English Crown the right and responsibility to protect persons legally incapable
of caring for themselves, including children
However, children rarely received protection unless father died leaving a sizeable estate
Has always been part of state law
Mormon Church v. United States parents patriae power is inherent in the supreme power of the state for
the prevention of injury to those who cannot protect themselves
o State can also regulate children and family under their police power (health, safety, welfare)
Parens patriae only to benefit the individual
Police power to benefit the public
o However, theres official reluctance to intervene in family affairs
The American Conception
o Traditional Roles of Parents and the Government
For most of nations early history law recognized absolute parental authority over children and perceived
children as property of their parents (See Morrissey v. Perry)
Meyer v. Nebraska parents can choose to teach their children German
DP liberty interest of the teacher to teach German and the parent to hire the teacher to teach
German
DP right of parent in establishing a home and bringing up children
Pierce v. Society of Sisters parents have a substantive due process right to send their children to private
schools
Rule from these cases State cant unreasonably interfere w/ the liberty of parents and guardians to
raise their children as they see fit
Note: neither case talked about the childrens interest (nothing at all)
o The Movement Toward Childrens Rights
After Meyer and Pierce, American jurisprudence gradually began to recognize that children may hold rights
of their own in contests w/ the government and perhaps with their own parents
Prince v. Massachusetts
This is the leading case that upholds the constitutionality of child labor laws (and other
protectionist statutes)
States authority over childrens activity is broader than over like actions of adults
BUT the court also said that children have rights and thats what Meyer and Pierce stood for
[dictum in this case]
Brown v. Board of Education first case to clearly say that children have rights [and it wasnt dictum]
segregation of children in public schools solely on the basis of race, even though the physical
facilities are other tangible factors may be equal, deprives the children of the minority group equal
educational opps
In re Gault
Imposed due process constraints on juvenile courts in delinquency case
Neither the 14th Amendment nor the Bill of Rights is for adults alone (even though the
constitution says nothing about children)
 Tinker v. Des Moines Independent Community School District
Black armbands case
High water mark in the childrens right movement ever since this case, court has been trying
to cut back on this case
Students have 1st Amendment rights in the public schools provided that their exercise of
those rights does not:
o Disrupt the educational process
o Interfere w/ the rights of other students to be secure and to be let alone
o Produce violence or a reasonable likelihood of violence
Decisions since Tinker about the 1st Amendment
Hair-length regulations courts went both ways
Dress codes and uniforms
o Case depends on the purpose of the school
o If student safety and avoidance of gangs courts uphold as necessary to avoid material
and substantial interference w/ schoolwork or discipline
o content neutral dress codes are generally upheld
Board of Education v. Pico
o About whether school board could remove books from the library b/c of their content
o Plurality school board cant remove books for purpose of restricting of access to
political ideas or social perspectives discussed in them if the action is motivated by
disapproval of ideas express
o Dissent emphasized that school boards are elected and they are in the best position to
make educational policy
Bethel School District v. Fraser
o Constitutional rights of students in public school not coextensive w/ rights of adults in
other settings
o Can prohibit a vulgar of offense message (but cant prohibit a political message)
o upheld students suspension for giving a speech laced with innuendos during an assembly
attended by 600 students
Hazelwood School District v. Kuhlmeier
o Upheld school districts authority to exercise editorial control over the contents of a high
school newspaper produced as a part of the journalism curriculum (even though its a
prior restraint)
o School does not have to promote particular student speech
o school sponsored speech may be censored if for legit pedagogical concerns
Morse v. Frederick
o Bong hits for Jesus case
o Courts will give schools benefit of doubt if make decision on spur of moment and its a
reasonable decision
o courts also consider the environment
o the message also promoted drug use, which the school does not promote
in light of this, the decision was reasonable by the principal.
Fourth Amendment and Drug-Testing Decisions
New Jersey v. TLO validity of a school officials search of a student depends on the searchs
reasonableness under all the circumstances (not probable cause)
Vernonia School District 47J v. Acton upheld policy authorizing random, suspicionless
urinalysis drug testing of its interscholastic athletes b/c:
o Intrusion on privacy was negligible
o Government concern in preventing drug use was important b/c:
Drug-impaired athletes face physical dangers
 Student-athletes are role models
Decreased expectation of privacy in locker-room setting
Board of Education v. Earls
o Random, suspicionless drug testing for all students in sports and extracurricular
activities
o Court upheld through a fact-specific balancing test:
Interest of the state drug use is a serious problem
Interest of children privacy BUT
Its not a strong expectation of privacy b/c voluntarily subjecting
themselves to many of same intrusions as athletes
Character of intrusion isnt great (behind stall and results confidential)
Here, the interest of the state beats the interest of the children
Note theres still room for challenges against drug testing under state search and seizure cases
(which the Washington Supreme Court recently did)
Reality check few school districts have instituted these policies for fear of litigation and expense
of drug testing
If children raise a 1st or 4th Amendment claim and lose, parents claim will lose too b/c just rational
basis for right to raise children as see fit
Court has been trying to increase the parens patriae interest
o When parent sends the child to school, the school is in a modified in loco parentis
relationship
o When parents send their children to school, they should expect that the school will take
reasonable methods to keep their kids safe
Procedural DP Rights of Public School Students (Goss v. Lopez)
Where state guarantees free public education, students have a 14th Amendment property interest in
guarantee and a liberty interest in not having their reputations sullied by suspension for less than
good cause
Must have oral or written notice and chance to present his side of story b/f removal
o Reconciling Parents and Childrens Rights
The strength of parents rights can vitally affect the childrens status, rights and obligations
Troxel v. Granville
Grandparent visitation case
A fit parent is presumed to make decisions in the best interest of the child in visitation cases
Question after Troxel is how far the court will extend the case
What other kinds of decisions?
Lower courts have said that Troxel deals w/ intimate family decisions, not other decisions such
as abuse and neglect laws or other regulatory statutes
o Important Point about Weighing Interests
Weighing the interests of the state, parent, and child only happens in the absence of a statute
If theres a statute, dont weigh b/c statute trumps CL
Child labor laws
Underage drinking

May Children Articulate Their Own Interests?

The General Question
o Wisconsin v. Yoder
Compulsory education statute dealing w/ Amish
Prosecutors brought a criminal case for violating the compulsory education statute
Majority concluded that the convictions violated the parents rights under the 1st Amendment free exercise
clause
 Justice Douglas argued that children had a constitutional right to a hearing to determine whether they
wished to attend school past the eighth grade
Majority dismissed Douglas suggestion b/c prosecution did not turn on whether children wanted to go to
school (so childrens interests not implicated)
o SCOTUS has never decided the issue of whether children have a right to be heard b/c most states have statutes
that allow the child the right to be heard
The Mature Minor Doctrine
o Has sometimes enabled courts to consider the wishes of a child who appears capable of articulating a preference on
matters important to the childs welfare
o Judge will have to determine whether child mature enough to make the decision
o Bellotti v. Baird stands for the proposition that if a woman under 18 wants an abortion and the state says must
have parent consent, its unconstitutional unless theres judicial bypass
o CL mature minor doctrine mostly about medical decisions
o NOT applicable when the legislature has set a majority age via valid statute
o Parham v. JR suggested that mature minor rule should very rarely be used in contexts other than abortion

Statutory Influence
Most day-to-day practice in childrens law field is statutory and administrative
IDEA Individuals with Disabilities Education Act
o School districts have to diagnose the child w/ a disability and provide them with a individual education plan
o Lawyers are hired if the parents and school district disagree about the individual education plan (IEP)

An International-Law Basis for Childrens Rights?

o United Nations Convention on the Rights of the Child: ratified by all nations except the US and Somalia (which cant
ratify a treaty)
o Opponents have argued:
o Would clash w/ important aspects of domestic law
o Would produce unwarranted and unprecedented federal interference w/ state law
o Would impose unfunded mandates on the states
o Would interfere w/ parents rights to raise their children as they see fit
o Supporters argue:
o Its the Magna Carta for children
o It would bring attention to the human family the failings of the US
o Would guide domestic policymakers who wish to assure the health and well-being of Americas children
o Would enable the nation to focus the spotlight on the plight of children worldwide
o Legal effect
o Creates no authority to compel nations to comply w/ its terms and imposes no sanctions for noncompliance
o BUT under the Supremacy Clause a ratified treaty would become the supreme law of the land (overriding state
law)
o Customary International Law
o Results from a general and consistent practice of states followed by them from a sense of legal obligation and binds
nations that have not dissented form the rule while it was developing
o Controversy continues to surround the ascertainment and applicability of international law, including customary
international law, in determining US law (Roper v. Simmons juveniles and the death penalty)

Perspectives on Childrens Rights

o Neither legislatures or courts have developed a coherent approach to addressing childrens rights cases
o Most legal and social policy is based on 2 beliefs:
o That children lack the capacity to make decisions on their own
o Parental control of children is needed to support a stable family system
o 4 types of claims under childrens rights
 o Generalized claims against the world
o Right to greater protection from abuse, neglect, or exploitation
o Right to be treated in same manner as adult
o Right to act independently of parental control and/or guidance
o Childrens rights cases constantly have 3 themes that are in conflict
o Parents have primary responsibility to raise children
o The state has special responsibilities to children (to intervene and protect them)
o Children as people have rights of their own and have rights as individuals in relation to the family an in relation to
the state

ABUSE AND NEGLECT

Introduction
o Black Letter Law
o Once court finds that a child has been abused or neglected, the parens patriae interest beats the parents interest (b/c
theres no constitutional right to abuse and/or neglect a child)
o If parent claims constitutional right to raise child as see fit will lose
o Issue in most cases is going to be factual (not constitutional or statutory)
o Big issue is going to be whether authorities waiting too long or not long enough
o 3 government systems that regulate abuse and neglect
o Criminal law
o Welfare system
o Child protection system
o States may have 4 sets of laws dealing w/ abuse and neglect:
o Reporting statutes
o Child protective statutes
o Criminal statutes
o Social services statutes
o Federal government has long exercised extensive control over state abuse and neglect systems through mandates tied to
federal funding

Discovering Abuse and Neglect: Reporting Statutes

o Purpose is to learn about incidents of suspected child abuse/neglect so that can prevent or control
o In response to federal funding legislation, states have mandatory reporting statutes
o State laws vary concerning:
o Who must report
o What must be reported
o What penalties may be imposed for failure to report
o What civil liabilities and protections accompany reporting
o 3 General Facets of the Reporting Statutes
o Receiving
Requirement of receiving reports
Either from mandatory reporters or anyone else
o Investigating
Every report investigated in MO
of reports made are substantiated (turns out to be abuse/neglect)
o Registry
Need to keep a registry of people who are abusive or neglectful
Certain people can access it
o 3 Types of Mandatory Reporters
 o Education employees
o Law enforcement
o Medical personnel
o Note these are the kind of people who come into contact w/ children AND who would know about the reporting
statute
o Parental Interest:
o Parents have a interest at stake in reporting statutes
o a right not to have their name smeared if they arent abusers/neglectors
o Valmonte v. Bane
o Case where parent in registry b/c slapped teenage daughter for discipline purposes
o Standard of proof
was probable cause at every step in the appeal process (to get name off registry)
o Needed higher level of proof has to be at least C&CE b/f listing
o Note Court used the Matthews v. Eldridge 3-part balancing test for how much procedure was due
The nature of the private interest affected by the official action
The risk of error and the effect of additional procedural safeguards
The governmental interest
o Immunity
o Reporting laws generally provide some measure of immunity for persons reporting suspected abuse
o In MO if report made in good faith, has qualified immunity
o Failure to Report
o Obviously can bring criminal case
o Some decisions refuse to imply a private right of action for failure to make mandated report
o However, might be able to recover under CL negligence standards
o Client Confidences Issue (PR)
o May reveal information to prevent reasonably certain death or substantial bodily harm
o Question is going to be how substantial harm is
o Remember that attorney can withdraw if doesnt see eye-to-eye w/ client

The Child Protection System: A Composite Case

o Many agencies, courts, and professionals involved in a child protection case
o Must be extensive cooperation and ability to communicate
o Rare that any individual working on a case will be involved throughout the whole thing
o Bifurcated proceeding
o Adjudication fact-finding phase (is the child abused/neglected?)
o Disposition what should the court do about it?
o Adjucication: Formal or Informal?
o Formal evidence taken b/f a judge
o Informal intake staff talks to parents and theres a negotiated settlement
o Disposition: Formal of Informal?
o Formal what judge decides
o Informal intake staff and parents agree to whatever plan
o The Lawyers Role
o Probably will only meet the child a couple minutes b/f the hearing
o Easy part will be adjudication
o Difficult part is the disposition
B/c lawyers arent accustomed to this role
But lawyers can really help the child in dispositions suggest whats best for the children
Directory of Juvenile Justice Resources for Missouri remember that it exists b/c lists programs that are
available in MO and use during disposition phase
 Limits on Intervention
o The states authority to intervene to protect children is limited by the parents right to the care and custody of their children
o Reasonableness for searching during an abuse and neglect investigation
o court will balance the intrusiveness of the search against the states compelling interest in protecting children and
prosecuting abusers
o inspections of the home or child that are part of a treatment plan or court ordered disposition in a child abuse or neglect case
may not trigger the 4th Amendment (Wyman v. James)
o 2 recurrent issues
o Degree of actual or threatened harm the state must show b/f it may intervene
o Level of assistance the state must provide to help the family resolve the risk b/f removing the child
o In re Knowack
o Case where 4 children were committed on ground that the parents were drunks; the parents reformed and wanted
their kids back
o Aid society took the position that they had custody until the kids were 21 (b/c custody was transferred)
o The court of equity had to return the children to their parents b/c there was no statute that provided for the return of
the children on the courts order
o Note Today, if a child is taken into custody, the child is a ward of the court, and the court makes the decision about
whether child should be returned
o In re Juvenile Appeal (Grounds for Intervention)
o Kids taken away from mother of six b/c youngest died of unknown causes
o Strict scrutiny applied in this situation
Only when the court finds abuse/neglect does the states interest become compelling (to protect the child)
And in order to be narrowly drawn taking away must be necessary for the childs safety
o Once theres no longer a reason to keep kids away from family, need to reunite
o Cases are going to turn on the fact, not the law
o Constitutional issues underlie these cases
o Compelling interest going to happen when the court finds abuse/neglect has occurred (when children face serious
physical illness, injury, or immediate physical danger)
o The remedy must be narrowly tailored
o Void-for-vagueness
Abuse and neglect statutes often very broad
A statute must be written clearly enough so that a reasonable person will know what the statute allows and
what the statute proscribes
Will succeed only when there abusiveness of the parents conduct is open to fair question
o How to argue that state exceeded its limits on intervention
o Argue that conduct not w/in the statute
o Argue the unconstitutional as applied claim (substantive DP right)
o Argue void-for-vagueness

Patterns of Abuse and Neglect

Neglect
In re S.T.
o Case where children kept bouncing back and forth from their natural parents home and a foster home b/c kids were
underweight and dirty
o This was classic neglect case
o 7 years elapsed b/w the referral and the resolution of the case
Federal statute requires that after so many months in foster care, have to start TPR proceeding
Have to have a LOT of evidence when trying to terminate parental rights b/c the end has to be narrowly
tailored to the end
 Failure to Protect
o Parents are responsible for protecting their children from harm when they can do so
o A parent who stands by and does not intervene to protect a child can be adjudicated neglectful, even though the
parent did not commit acts of abuse
o Its a type of neglect rather than abuse
o Frequently alleged when the mother does not intervene when her children are abused by their father or another male
partner
o In the case of battered women: where a battered woman, herself a victim, does not separate herself and the children
from the batterer, she generally can be held responsible for failing to protect the children.
o Parents may also be found neglectful, and may even suffer TPR, when failure to cooperate with the state in an abuse
investigation leaves the perpetrator unidentified and the child at risk of future harm.
Psychological Maltreatment
o Psychological maltreatment may be coupled with physical neglect or abuse or may occur separately.
o state statues may not distinguish among emotional neglect, emotional abuse, and the emotional harm caused by
physical neglect or abuse
o In emotional abuse
o Can be completely verbal
o However, can also have physical elements (like handcuffing a child)
o Medical definition of psychological maltreatment
o When a person conveys to a child that s/he is worthless, flawed, unloved, unwanted, endangered, or only of value in
meeting anothers needs.
o The perpetrator may spurn, terrorize, isolate or impair the childs socialization.
o Not necessarily going to be a specific statute directed toward emotional abuse might have to rely on a more general abuse
and neglect statute
o Some juvenile officers will not bring an emotional abuse case unless there is expert testimony (b/c causation is difficult to
prove)
o Failure to Thrive
o Condition in which the childs weight and linear growth have fallen below standard measures or have significantly
dropped w/out physical cause
o If untreated, can lead to permanent physical, cognitive, and behavioral problems
o Cant show unless you show that at one time, the child was thriving (like when taken out of the home)
o Will be established through expert testimony

Abuse
The Battered Child Syndrome
o Happens when a child has multiple injuries that are not accidental
o So physicians and prosecutors must establish that a childs injuries were caused by abuse
Pathological conditions will suggest that the childs injuries are intentional and unlikely to have been self-
inflicted
Doctors repeatedly say that in many cases, they can testify to a medical certainty what is abuse
o Some characteristics:
Usually child will be quite young
Injuries in different stages of healing
Marked discrepancy b/w what the parents report and what doctors observe
No new injuries while child in medical treatment
Child is withdrawn and non-communicative
Child flinches when going to touch
Admitted to hospital at odd hours of the night
Parents appear reluctant to tell what happened and then react inappropriately to the diagnosis
o Can also be used as a defense for a child who kills his parent
The Shaken Baby Syndrome
o Baby wont stop crying and immature adult will shake the baby to quiet it
o Will cause:
Retinal damages
Death
Brain damage
Broken neck
The Target Child
o Some child abusers will abuse only one child in the household
o Need to be alert to this in our careers make sure to see all children in the household
Why Do Parents Maltreat Their Children?
 o Factors for more likely to harm children:
Families in financial distress
Intergenerational child abuse
Low SES
Social isolation from the community
Parents afraid of any relationship w/ the authorities
Parents have mental instability
Children w/ mental or physical disabilities
Parents w/ alcohol or substance abuse problems
Social stress on the family (like following Flood of 1993)
Emotional stress of the families
Younger children
Girls more likely to be sexually abused than boys
o Preventing delinquency is easier than preventing abuse and neglect (b/c hard to predict which families will abuse b/f
it happens)

Corporal Punishment
o Issue: when something is abuse/neglect sometimes collides w/ a parents right to discipline his child
o Privilege of parents: to give out reasonable corporal punishment
o RST of Torts 147 a parent is privileged to apply such reasonable force or to impose such reasonable
confinement upon his child as he reasonably believes to be necessary for its proper control, training, or
education
o RST factors in determining reasonableness:
Whether actor is a parent
Age, sex, and mental condition of the child
Nature of the offense and his apparent motive
Influence of his example upon other children of the same family or group
Whether force or confinement is reasonably necessary and appropriate to compel obedience to a proper
command
Whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or
permanent harm
o Not always wise to raise the reasonable defense dont want to tick off the trier of fact
o In the Interest of T.A.
o Stepfather spanked boy who had Tourettes and ADHD w/ a belt
o How to apply statute that allows corporal punishment:
Whether the restraint or correction was rendered necessary
Whether the force used was reasonable in manner
o Domestic Violence Statutes
o Some courts have held that abused children can get a temporary protection order (under domestic violence statutes)
against the abuser
o Internationally
o in other countries, corporal punishment is viewed more negatively in some countries and in international law that it
is in the US.
o Sweden and the Committee on the Rights of the Child has condemned corporal punishment in both families and
institutions
US did not ratify this
o Public Schools and Corporal Punishment
o Ingraham v. Wright doesnt violate 8th Amendment to subject child to corporal punishment in school
o Trend has been to move away from corporal punishment
o In states where corporal punishment is still ok in schools litigation may result for tort damages
 o Substantive Due Process
Most federal courts also recognize a substantive DP right to protection against excessive corporal
punishment

Sexual Abuse
Child sexual abuse covers a wide range of acts but will always include:
o Sexual activities involving children
o An abuse condition such as coercion or a large age gap b/c the participants, indicating a lack of consent
Failure to Protect
o Its constitutional to bring a civil abuse and neglect petition against a parent who is not the perpetrator of the abuse
Its a civil proceeding and the question is the best interests of the child
Cant convict on criminal charges if the statute requires the to commit the acts (however, could be
convicted under a criminal neglect statute)
o In re T.G.
Mother had 2 daughters that she knew her husband was sexually abusing
TPR for failure to protect and the appellate court upheld the TPR
Theres no requirement that the mother be the abuser b/f her parental rights are terminated
o What if the parent who failed to protect is also a victim?
States are split on this issue
MO courts have held that the focus of a civil case is the child and a battered parent can be found abusive or
neglectful even if cant protect herself
o Sexual abuse prevention programs in schools havent been shown to work
Proving the Case
o Child sexual abuse difficult to prove b/c of a lack of physical evidence and b/c there are no adult witnesses that are
willing to testify
o Why difficult to prove the case:
Child doesnt report right away
No physical evidence
Most sexual abusers are known to the victim or the family
Done in secret
Child isnt a very good witness
Childs caretaker or parent will not permit the child to testify
False accusations children can be very susceptible to suggestions from adults
o Sexually abused child syndrome
Is a recognized diagnosis based upon comparisons b/w the characteristics of individuals and relationships
in incestuous families and the characteristics of the individuals and relationships of the family in question
Will not be admitted under evidence law unless scientifically valid
May be admitted to corroborate the hearsay testimony
However remember that expert witnesses can invade province of the jury (cant say WHO committed the
sexual abuse)
o Child hearsay testimony
Note Crawford not a problem here b/c its civil proceeding, not criminal
In re Nicole V. could put up hearsay evidence as long as the reliability is corroborated (any other
evidence tending to support reliability very low standard)
In MO recognized hearsay exception
Reliable showing
AND
Substantial basis to believe its true
THEN
The hearsay evidence comes in
Newborns with Positive Toxicologies
o Major concern in modern-day world
o What do we do about newborns w/ positive toxicologies?
o Prosecute mothers for neglect or abuse
AMA counsels against that b/c if word gets around, a lot of women will not seek out prenatal care at all
And prosecution wont happen until after the baby is born
o What has happened
Some states permit civil commitment of the women to get treatment during pregnancy
MO and some states permit neglect proceeding
Most states hold that the legislature did NOT intend to include neglect of a fetus
SC state supreme court has held that a criminal prosecution for pre-birth drug use is w/in the statute
o Policy issues
o Prosecutions and civil proceedings unfairly poor women
o Feeling that some will not seek out medical care if criminal prosecution available
o Also fear that women will not seek out help for fear of losing their children
o In re Dante M.
o Positive toxicology + other evidence was enough to show neglect in this situation
o A child born w/ positive drug toxicology can be found to be a neglected child ONLY IF could establish post-birth
factors too
o Realistically once mother is a drug addict, not difficult to find other aggravating factors

Duty to Investigate
o DeShaney v. Winnebago County Department of Social Services: NO DUTY TO INTERVENE
o Father beat the boy and caused severe brain damage
o Issue: whether child can maintain a 1983 action against DSS for not protecting child when in custody of father
o Court said that the 14th Amendment DP doesnt protect against state inaction
Majority worried about flood of litigation
Dissent state action b/c state created the system and they dropped the ball
o Note DP clause operates differently if a person is in custody of the state
State only has affirmative duties to care if state takes custody of an individual
This case might be different if this happened while child was in foster care
o Could sue under tort law but will run into difficulties
o Sovereign immunity
o No state is going to provide state law remedies

The Prosecutors Role

o In many jurisdictions, child abuse and neglect cases are handled by prosecutors office (instead of by social service agency
lawyers)
o Why prosecutors?
o Prosecutors better for going after jugular
o Caseload too heavy for juvenile officers
o Most juvenile officers are not lawyers
o Feeling is that some parents are so bad that it is quasi-criminal
o Prosecutor still has to take instructions from juvenile officers

The Reasonable Efforts Requirement

o B/f may remove from home, state must make reasonable efforts to maintain the family intact
o Why require reasonable efforts b/f removal from home?
 o If state shows abuse/neglect, overcomes parents right to raise child as see fit
BUT then have to been the least restrictive alternative element for the disposition (remove only when necessary)
o Non-legal reason most kids are best off w/ their parents
o Government response to the extent of reasonable efforts for keeping the family intact the state must take has been a
pendulum over the years
o Adoption Assistance Act of 1980 required states to keep children in their own homes when possible, and when
removal was necessary, to require states to move aggressively to reunite the family
o Adoption and Safe Families Act of 1997 requires that state take policy that if a child has been in foster care for 15
of last 22 months, the state move for TPR
o TPR can occur for all children b/c of severe abuse of one child w/out having to provide reunification services
o In re N.M.W.
o Case about the filthy house w/ the cats
o Theres a split b/w the majority and the dissent as to whether the state did enough b/f directing continued foster care
of N.M.W.
o What state did:
First time approached apartment squalid conditions
Returned same squalid conditions
3rd visit same squalid conditions
4th visit same squalid conditions
Subsequent visits same squalid conditions (nothing changed)

Termination of Parental Rights

o Possible dispositions
o Probation
o Home custody
o Foster care
o Institutionalization
o Termination of parental rights
o When states efforts to keep a family together fail, the state may move to terminate parental rights
o TPR completely and permanently severs parent-child ties and frees child for adoption
o How it works (procedurally)
o B/c of constitutional right to family integrity, grounds for TPR are not simply abuse/neglect
o If abuse is severe and persistent the least restrictive alternative might be TPR
o Look to the TPR statute will have extra hoops to jump through
Some grounds for TPR require only 1 event attempted murder of child, child conceived from a forcible
rape
Course of conduct hoops are greater b/c parents have constitutional right
o Can be either consensual or involuntary
o Consensual parents agree (but it still has to be in the best interests of the child)
o Involuntary requires a TPR proceeding which must be separate from the abuse and neglect proceeding

Due Process Protections for Parents

o SCOTUS has given more DP protections than the usual civil case (not necessarily good for children)
o Santosky v. Kramer
o Applied Matthews v. Eldridge 3-party balancing test
o Burden of proof for establishing grounds for TPR must be C&CE
o Lassiter v. Department of Social Services
o All about right to counsel
o DP does not require appointment of counsel for indigent parents in all termination proceedings, but rather
permits the TC to determine the need for appointment on a case-by-case basis
o However, this case isnt very significant b/c most states provide for attorneys for indigent parents
 o M.L.B. v. S.L.J.
o All about the right to appeal
o DP and EP prohibit a state from conditioning appeals from TPR orders on the parents ability to pay record
preparation fees
o Because the burden of proof is only C&CE, want to avoid risk of making the wrong decision
Dont want to have 1 decision-maker having the final word (the TC judge)
Worried about informal decision-making in juvenile court
o Note hard to win on appeal b/c very deferential standard of review (abuse of discretion)

When Should Parental Rights Be Terminated?

Note B/f going for TPR, state has to make reasonable efforts to keep the family together
TPR is appropriate for persistent abuse/neglect b/c parents have a fundamental DP right to family integrity and have to use
least restrictive means
In re Ashley A.
This is the case where Mom was a drug addict and Dad told DFS that didnt think he could take care of the kid (and
was a violent alcoholic)
Must find one of these 4 bases b/f considering the best interest of the child:
o Parent is unwilling or unable to protect the child and these circumstances are unlikely to change
o Parent has been unwilling or unable to take responsibility for the child
o Child has been abandoned
o Parent has failed to make a good faith effort to rehabilitate and reunify w/ the child
Not enough to find one of those four bases but also consider the best interests of the child
In re Jeffrey R.L.
Case where mom wouldnt cooperate w/ the authorities to identify her childs abuser
Parent only has to protect child from harm; not protecting child from harm if making no effort at all to identify the
abuser
This is just a civil case
o The identity of the perpetrator doesnt matter; all about the best interests of the child
o If the abuse is severe and persistent enough, TPR can be appropriate if theres a compelling state interest to
protect the child
Adoption and Safe Families Act of 1997 requires state to TPR in some cases:
Been in foster care under the responsibility of the state for 15 of most recent 22 months
Child is an abandoned infant
Parent has committed a serious crime against child
UNLESS
o Child is being cared for by a relative at the option of the state
o State has a case plan and a compelling reason that it wouldnt be in the best interests of the child
o Reasonable efforts have not been yet made by the state (and reasonable efforts are appropriate
Presumptions that TPR in childs best interests in Idaho
Child is product of rape or sexual contact w/ a minor
Parent has subjected child to torture, chronic abuse, murder or other parent, murder or attempted of another child
Court determines the child to be an abandoned infant
Children conceived by sexual assaults
Courts hold or assume that state and/or federal constitutions are no barrier to TPR in these situations
Courts are split when the child is conceived as a result of statutory rape
Parents incarceration
Incarceration per se isnt a permissible basis but can be a factor
When is it a TPR ground?
o Long-term sentence 15 years or more
 o If parent doesnt pay any child support during sentence need to pay something
Abuse of a sibling
Considered probative of how the parents might treat other children
Children who are not abused themselves may suffer from witnessing abuse of their sibling
In extreme cases, the court may terminate parental rights to a child based entirely on proof of abuse of a sibling,
even where no evidence is adduced concerning injury to the child and where all evidence concerns the sibling.
Mental retardation, mental illness, or immaturity
o ADA doesnt require the judge to take the mental retardation of the parent into consideration during TPR the focus
is best interests of the child
o Doesnt violate DP to terminate parental rights of teenage mothers that have not reached the age of majority the
focus is best interest of the child
A parents mental incapacity is not typically a per se basis for termination but also does not justify a lesser level of
care by the parent.
o Courts focus on the parents ability to care for the child rather than on the parents disability
Abandonment
Whats the likely abandonment case?
o Non-resident parent doesnt pay child support for particular amount of time and the mother needs it or
theres a step-parent who wants to adopt
o failure to maintain contact or pay support, while knowing the childs whereabouts
o Long term incarceration
not in and of itself ground to TPR, but can be a factor.
o Baby on doorstep cases
parent abandons the baby on the doorstep
Safe Haven statutes
every state has one
meet a tragic set of circumstances in which a young single mother who hides her pregnancy and
then gives birth and throws the baby in the dumpster
If the parent surrenders the child to clergy, firefighters, teachers, police officers, then she will not
be charged with child abandonment and there will be no legal reprocussions
TPR based on abandonment still has to be in best interests of the child
In re Adoption of B.O.: Abandonment Test
o Dad visited child 2 times in last 11 years and only sent intermittent letters and telephone calls (also late on
child support)
o Abandonment test
Has the parents conduct evidenced a conscious disregard for his parental obligations?
Has that disregard led to the destruction of the parent/child relationship
Should I petition for child support?
o Will get it as soon as DNA test confirms fatherhood
o Entitled to it but if you ask for it, the father is going to want something in return (visitation)
really need to weigh how bad you want the child support if you want to eventually seek a TPR
o If wait it out and tell him where the child is, may move for abandonment and get him out of the childs life
May not get a TPR based on abandonment, even after a long absence in the childs life
o parent may come up with an excuse
was in the military
didnt have childs address
o ways to combat this:
keep a paper trail showing that you have sent other parent address and phone number, etc.
Can you terminate parental rights for not paying child support, even if they upkeep visitation?
o not a ground for TPR
o remedy is to get an enforcement and enforce through contempt process
 Social Class, Ethnic Racial Bias
Overview
o Higher poverty rate in neighborhood, higher rate of child maltreatment
o Minorities enter Child Protection System in disproportionally large numbers
o CPS has a hard time dealing w/ cultural differences

Poverty and Race

o 2 views on why minorities more likely than Caucasians to be in child protection system
o Race is not the primary factor behind child welfare services delivery (its something else)
o Policy has moved toward freeing for adopting and poor black families are hit the hardest
o Connection b/w abuse/neglect and poverty
o 3 Types of Theories of the Cause of Disproportionality
o Parent and family risk factors minorities have disproportionate needs
o Community risk factors residing in neighborhoods and communities that have many risk factors
o Organizational and systemic factors decision-making processes of CPS agencies, the cultural insensitivity and
biases of workers, governmental policies, and institutional or structural racism
o System treats minority children different than white children
o Multiethnic Placement Act of 1994
o Designed to end race-based decisions in adoptive placement
o Permitted states and private agencies to consider the potential familys financial abilities and other cultural and
ethnic factors
o Prohibits placement agencies from denying any person to become an adoptive or foster parent or from denying or
delaying placement based on race, color, or national origin of parent or child

The Indian Child Welfare Act

o In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to
the contrary, to a placement with:
o a member of the childs extended family;
o other members of the Indiana childs tribe; or
o other Indian families.
o Limits removal of Native American children from home
o Whenever possible, should remain in a Native American community
o Has implied what will be in the best interests of the child
o Higher evidentiary standards
o For foster care C&CE
o For TPR BaRD
o BUT didnt address the underlying problems of poverty and unemployment (along w/ other stuff) just procedural changes
o Courts split on whether to use existing Indian family doctrine as whether the child has to have previous ties to the
community for the act to apply

Understanding Cultural Context

o Cultural competence practice that is geared toward knowledge of and skills in working w/ cultural groups other than ones
own
o What should do:
o Need to consider life experiences of everyone involved
o Attorneys for child and parents are responsible for introducing culture
o Social workers are needed to determine if cultural factors are coming into play
o Culture is more than race and ethnicity
o Culture is just a backdrop
 o Need to know when and how culture comes into play
o Cant just know a few generalizations
o Need to figure out culture by asking questions

Finding a Cure
o Easier to prevent juvenile delinquency than abuse/neglect
o Worse thing you can do is intervene a little bit and then leave
o treating the whole family and their circumstance
o treating the children and the parents
o dont treat it as an isolated incident
o Prevention of child abuse:
o hard to do with families that arent on the radar yet
o when they have been reported, hit them with a hard sanction for deterrent purposes
 FOSTER CARE
o Foster care private homes licensed by the state and children live there temporarily
o sometimes ends up being permanent
o sometimes there is family preservation and they put the family back together
o Kinship care lives w/ relatives
o 1800s focused on helping poor children so placed children in orphanages
o Since then the pendulum has swung back and forth w/ removal from the home
o Early 1900s states began providing mothers pensions
o 1970s pro-removal policy
o 1980s anti-removal policy
o Late 1990s made easier to remove
o Voluntary v. Involuntary Foster Care
o Voluntary parents put n foster care w/out coercive court order to do so
To get child back standard becomes best interests of the child
A lot easier to put child in foster care than to get child out
not all voluntary foster care is actual voluntary
juvenile officer might suggest foster care or else they will file a neglect petition against the parent
o Involuntary child in foster care pursuant to coercive court order
juvenile officer files a neglect petition and the court orders foster care against the parents objection
o Kinship care and involuntary foster care are usually funded the same
o Structure
o The foster parent-state relationship is generally regulated by state law, agency rules, and contract, with a heavy
overlay of federal regulation.
Contract might detail foster parents responsibilities and decisions they may make, which usually include
day to day decisions about the childs food, clothing, homework, etc
o The state is expected to monitor the placement to assure that the child is safe and receiving education and other
services.

Challenges in Foster Care

o Placement is foster care is always supposed to be temporary (not a long-term option)
o History of foster care
o Mid 1970s controversy about overuse of foster care
Removed unnecessarily from the home
Foster care limbo
o Adoption Assistance and Child Welfare Act of 1980 required reasonable efforts to reunify
o Adoption and Safe Families Act of 1997 focused more on finding child a permanent home
o Foster Care Increases
o Number of kids in foster care has increased every year for most of the last generation
Not adopted at birth
Crack epidemic and other drug problems
Rate of parents in prison
Difficult economic times
o Foster care increases are caused by:
Increase in female incarceration
Decrease in welfare benefits
o Shortage of foster care homes b/c:
o Stipend for the foster families is completely inadequate
o Foster children have significant emotional and physical problems
o Support services inadequate
 o Women have more employment opportunities than in the past

The Courts Role in Permanency Planning

o Permanency planning
o intended to move children out of foster care and into permanent homes
o Different than reasonable efforts
Reasonable efforts what have to do b/f taking the kid out of the home
Permanency planning what court must do after kid is taken out of home
o plan for the child
o Permanency planning has increased the courts role
o Determine whether made reasonable efforts
o Hearing about the plan
o Child protection cases are more complex than ever so more hearings in each case
o Disposition is about who will have custody and how will rehab parents
o Case plans have:
o Goals
o Timetables
o Services
o Visitation
o Periodic review hearings to make sure not in foster care for too long (every 3-6 months)
o Permanency hearing last hearing when decide what to do w/ child
o Recent federal law to speed up the hearing
ASFA imposes time limits on the states to expedite decisions about permanency placement
Within 12 months of when the child is considered to have entered foster care, the court must
hold a permanency hearing to determine the placement
o If cant be returned home at this time, may have TPR proceeding to free the child for adoption
o Courts and social services agencies lack resources to deal w/ all these procedures
o Why does federal law require periodic status reviews?
avoid foster care limbo
remove child from abusive or inadequate foster home
decide whether child can return home, or whether to free child for adoption
avoid unnecessary bonding

The Childs Right to a Family

o Traditionally, state agencies were hostile to foster parents claims for continuity and legal recognition of the bond
o Today, the attitude toward foster parents has changed dramatically b/c children need continuity in their lives and it was
counterproductive for the agency to keep destroying emotional bonds when many of these children were not going to be able
to go home anyway
Many or most foster children who are adopted are adopted by the foster parents
Already part of the family
Nobody else in line to adopt them
Statutory preference in the adoption code foster parents come first
o Smith v. Organization of Foster Families for Equality and Reform
Facts: in the absence of emergency, the parent would have ten days advanced notice of anticipated removal. An
informal pre-removal conference could be had, and once the child was removed, the parent could have an
opportunity for full post removal hearing. Parents wanted the full hearing before the removal.
Issue: what procedure is the foster parent and/or entitled to when agency contemplates removing the child
Court refused to recognize a foster childs right to a hearing
 Interest of foster child protected at initial hearing b/c if contesting, then the foster parents care about childs
emotional attachment
Nothing in procedure prevents consultation of the childs wishes
Court assumed the foster parents had a liberty interest (didnt rule that they did in fact)
Liberty interest of foster parent SIGNIFICANTLY weaker against going back to natural parents
2 difficulties w/ holding theres a liberty interest of the foster parents
o Pitting biological parents against foster parents (general rule fit parents trump 3 rd parties)
o Law has always shielded away from saying that a child can have more than 1 father and 1 mother
Procedural Due Process
notice
right to be heard
IN MISSOURI
you get 5 days written notice before removal
o under the regulations
you get 10 days, and you get a pre-removal conference, and you get a post removal
hearing.
Things to keep in mind:
foster parent is a stranger to the child, though some states provide preference for foster parents for adoption
children are liable for their torts, but most states have made parents liable up to a certain dollar figure for
their childs torts.
o does this apply to foster parents?
most courts say no because the legislator did not mean foster parent under the term
parent under the statute
arguments for liability: foster parent should step into the shoes of the parent
argument against liability: foster parents are hard enough to find as is, without
imposing liability on them
o Adoptions
Private adoptions w/out assistance from public agency (usually children who are readily adoptable)
Public adoptions w/ assistance from public agency (usually those children who have special needs)
Every state has a baby-selling statute allow medical expenses, rent during pregnancy but have limits on amount
of money (and what it can be used for)
o In re Ashley K. and Procopio v. Johnson
Procopios were working through a public agency who told them that if they were foster parents, they would look
better as adoptive parents
First ruling on the case made 5 years after entered foster care system TC decided in best interests to return to
biological parents
Appellate court overturned
Facts show that the best interests of the child was not to be returned to biological parents
TC focused on what parents had done for last 13 months not what was in the best interest of Ashley
To succeed on a 1983 claim, must prove they have a liberty interest in their family relationship w/ Ashley that state
could not impair w/out DP
USSC has said foster parents have liberty interest in foster family relationship
So scope of liberty interest must be determined from state law
o Argued priority for foster parents when adopting created a liberty interest but that doesnt rise to
the level of entitlement or expectancy
o Argued that juvenile court act suggested that putting children in stable homes was the goal put
putting child in anothers stable home environment is the alternative to keep in his own home
So no liberty interest here
o Some states permit foster parents to seek custody or guardianship and assert what the childs best interests will be
 o Many children in foster care limbo b/c not enough lawyers to represent foster parents to TPR and adopt
o 10 minutes children hour
the periodic reviews do not get a long hearing, and it ends up being rubber stamped.

The Childs Right to Services and Protection from Harm

o Many states have been sued for failing to comply w/ federal legislation intended to remedy the many inadequacies in the
foster care system
o Marisol A. v. Giuliani
o Brought 2 categories of federal constitutional claims
Violation of substantive DP right to protection from harm
Violation of right not to be deprived of entitlements
o When a child is in state custody, the DP liberty interest entitled the child to a minimal level of protection in a
custodial situation
Physical injury protection
Emotional well-being protection
o Courts agree that 14th Amendment doesnt require state to provide child w/ optimal level of care or treatment
o Courts havent imposed a constitutional obligation on the state to ensure a particular type of family life
o Limits on Private Rights of Action and Constitutional Claims
o Some courts have not found private rights of action under the federal statutes concerning foster care
o Other courts have maintained the voluntary/involuntary distinction dismissing those cases of children placed
voluntarily in state custody
o State Tort Liability
o Unless a statute imposes state responsibility, most courts find no agency, respondeat superior, or vicarious liability
o Some courts hold state liable in tort for a childs injuries when the state negligently placed the child w/ foster parents
who were known to be abusive
o Sovereign immunity and other limits on claims against state workers present substantial barriers to child plaintiffs
o Liability of State Actors
o Some child s abused by foster parents have recovered under 1983 for a state employees violation of their
substantive DP rights
Circuits split as to whether children have a constitutional right to safety in foster care
Even if such a right some assess public officials conduct using deliberate indifference standard rather
than a professional judgment standard
o 8th Circuit has limited state responsibility for the misfeasance and malfeasance of social services agency personnel
o Generally, foster parents are not state actors

Types of Placements
Foster Parents
o Kinship Care: Relatives as Foster Parents
o If we didnt have kinship care, our shortage of foster parents would be even worse
o Can be either formal or informal
o Under federal foster care requirements state is supposed to giving preference to an adult relative over a non-related
caregiver
o What about funding for kinship care?
Some states fund in full (including MO)
Other states partially fund
Some states dont fund at all
Note 1997 federal act encourages state to fund kinship care but doesnt require it
o Advantages v. Disadvantages
Advantages
Child is not in the system
 Health history known
Less discontinuity
Some relationship w/ parents still
Less cost for society if its informal
Disadvantages
Abuse is generational
Parent isnt earning visitation w/ child set back reunification
Child cant get treatment that is only available by being in the system
State less likely to be choosy about where child lives and less oversight during care
o Racial and Ethnic Matching
o Federal law prohibits not allowing foster care or adoption b/c of race
o ICWA demands matching w/ other Native Americans
o A state may put a child into foster care w/ foster parents who are not of the same racial or ethnic background
o Trans-racial adoption and foster parenting has been very controversial over last 2 decades
Indian Child Welfare Act (1978)
o member of the childs extended family
o a foster home licensed, approved or specified by the childs tribe
o an Indian foster home licensed or approved by a non Indian licensing authority
o an institution for children approved by an Indian tribe or operate by an Indian
organization which has a program suitable to meet the childs needs
o non indian foster family
o Religious Matching
o Most states consider the parents preference in religion in making placements (when practicable)
o However, states dont feel bound to find a foster home that matches those religious preferences
o If state statute required a child to be matched w/ foster or adoptive parents w/ same religious background, probably
would be unconstitutional
Institutional Care
o 2 issues about institutional care
o Whether children whose parents cannot support them should be placed in institutions as a general matter
o What should happen to children who need institutional care b/c of mental illness or some other cause
o Placements and Poverty
o Always has been a question of whether we should put poor children in orphanages
o Orphanages and Welfare Reform
Speaker Gingrich made the suggestion that poor children might be better off in orphanages than at home w/
their mothers on welfare
Response orphanage is about depriving women of their children not b/c the women are unfit parents;
rather b/c they are young, unmarried and poor
o Free boarding schools
Another view is that the orphanages of the past were not so bad after all
A way for children to get the benefits of the middle-class life despite having parents who had not achieved
that status
o The threat to young children
Infants and young children are uniquely vulnerable to the medical and psychosocial hazards of institutional
care
Increased risk of serious infectious illness and delayed language development
Accounts of physical and sexual abuse in these places
o Types of Facilities
o If a court has decided a child cannot be returned home, must decide:
Whether the states proposed placement is the least restrictive
Most appropriate setting available in close proximity to the parents home
Consistent w/ the childs best interests and special needs
o Residential treatment facilities are for children who have been neglected, have negative behavior problems, have
been in trouble w/ law, do not respond to less restrictive forms of treatment, and need considerable structure in their
lives
o Can also be placed in group homes, shelter facilities, or hospitals
o Some institutions that were orphanages have become residential treatment centers
o Cost is an important issue in choice of care

Guardianship
o For some children, adoption is unlikely b/c of special needs or desire to continue contact w/ biological parent
o If guardian, can make more decisions for the child BUT if foster care is subsidized, it might be the better remedy
o Different from foster care
o Foster care foster parents have physical custody but legal custody remains in state agency
Physical custody right to have child living in home
Legal custody right to make important decisions for the child
o Guardianship physical and legal custody of the child
o Is a good option for children who will never be adopted or when TPR isnt in best interests of child

Independent Living
o One of the problems w/ long-term foster care is that child is denied a real existence until 18
o 20,000 teens leave foster care each year b/c they have reached 18
o Many dont graduate HS, few are employed, and many girls have babies w/out being married
o High incidence of homelessness and incarceration
o Also high number of couch surfers
o Need to have Independent Living programs for these foster children to teach them to be self-reliant
o Open adoptions, guardianships, and mentors are crucial for children aging out of foster care
 o Undocumented foster children need to be assisted w/ the process of becoming eligible for green cards b/f they leave foster
care

CRIMINAL ABUSE AND NEGLECT

o Fundamental differences w/ the civil system and criminal system
o Civil system focuses on the child;
no need to prove perpatrators identity
remedial statutes liberally construed
prepondertance or clear and convincing evidence
bench trial in most states
o criminal all about proving BaRD that the is the one who did it
prosecutor must prove D was perpetrator
statutes are strictly construed in favor of the D
proof beyond a reasonable doubt
jury trial available

Abuse, Neglect and Child Endangerment

o Generally-applicable statutes v. Child-specific statutes
Generally-applicable victim may be anyone (including children)
Child-specific victim may only be a child
o Child endangerment statutes are written broadly so courts can take the facts and go the constitutional brink
o Commonwealth v. Ogin
3 incidents of child abuse
Case is just to illustrate whether would bring a criminal case or not
o What should be considered when determining whether to bring a criminal case
Seriousness of the alleged conduct
State of mind of the perpetrator
Strength of the proof /evidence
Community outrage
Remedys likely effect on the family
Protection of the child and future anticipated abuse and neglect
o Interagency cooperation
Child protective agencies and law enforcement agencies must cooperate w/ each other
And many have working arrangements to call upon each other for help
CPS protects by services or removal
Law enforcement arrest of offenders and criminal prosecution
o Law Enforcements Role
Child abuse is a major responsibility of local law enforcement agencies
The precise number of abuse cases arising from discipline of children by parents or caregivers cannot be determined, but
the issue is likely significant
Most children who suffer from abuse do so a hands of their parents or other caregiver
Widespread acceptance of corporal punishment in our society
o Parental Privileges Scope
MPC The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a
minor or a person acting at the request of such parent, guardian, or other responsible person and:
The force is used for the purpose of safeguarding or promoting the welfare of the minor, including the
preventing or punishment of his misconduct
AND
 The force used is not designed to cause or known to create a substantial risk of causing death, serious bodily
injury, disfigurement, extreme pain or mental distress or gross degradation
However, state formulations of the parental privilege vary is reach and scope
In states w/out parental tort immunity a child injured by unprivileged corporal punishment may maintain a damage
action against the parent who inflicted the abusive discipline
o Tolerating Corporal Punishment
MPC and RST confer privileges that allow parents to inflict quite a bit of corporal punishment on their children free from
criminal sanction or civil liability
14th amendment DP liberty interest to raise child as see fit
BUT that liberty interest will shrink if corporal punishment were perceived in terms of a childs right to be free from
civil or criminal batteries
o Breadth and Vagueness
Breadth allow courts to interpret endangerment statutes consistent w/ their protective purpose
But can still bring a void-for-vagueness claim
Courts normally reject vagueness challenges only succeed where harm caused by the s conduct seems open to fair
question
o Children who witness domestic violence
May suffer adverse effects
Girls more likely to be beaten
Boys more likely to beat
Some states have relied on child endangerment statutes
Others have specifically criminalized domestic violence in the presence of a child
o Contributing to the delinquency of a minor
Most states have statutes criminalizing conduct that might lead a juvenile to commit delinquent acts
Generally used to punish adult conduct detrimental to the childs welfare
Also reach a juvenile who contributes to the delinquency of another juvenile
o Abandonment
Where child endangerment rises to level of total neglect, parent or guardian may face prosecution for abandonment
Safe haven statutes
These are statutes that make it ok to drop off a newborn at a hospital, church, etc.
Will provide the parent freedom from conviction for child endangerment, abandonment or similar crimes
Nearly all states have these laws
4 reasons for not being as effective as hoped
o Inadequate publicity
o Practical difficulties inherent in safe haven relinquishment
o Doubts about the attractiveness of the terms of the deal
o The possibility of a fundamental disconnect b/w the incentives offered and the target population
o State v. Crawford
Water intoxication case
Purpose of this was to make us rethink our views on whether should have brought criminal charges in the Ogin case b/c
started out the same
o Parental-Responsibility Statutes
Prosecution of parents for neglect following specified misconduct by their children
Some statutes criminalize particular parental acts or omissions
Some statutes for failure to supervise
1 professor criticizes parental responsibility statutes b/c parents may not have control over their children and that it
discriminates against the lower-class
o Cultural Defense I committed an act that would be abuse or neglect but the law should excuse what I did b/c it was appropriate
under the culture under which I was raised
 Sexual Abuse
o Medical definition when a child is engaged in sexual activities that he/she cannot comprehend, for which he/she is
developmentally unprepared and cannot give consent, and/or that violate the law or social taboos of society
o Can prosecute under:
o Endangerment
o Criminal child abuse
o General criminal sexual abuse
o Child-specific criminal sexual abuse statutes (greater penalties here)
The Nature of the Problem
o Presence of stepfather in the household increases the risk for child sexual abuse
o Girls are at a higher risk than boys, but might have an issue w/ underreporting
o Single child molester may have many victims and victimize the same child over and over again
o Pedophiles who arent treated have a higher risk of repeat offenses
o Estimated that 100K-500K children in US are molested each year
o underestimates
o underreported by victims
o Short-term effects of child sexual abuse
o Sleep disorders
o Eating disturbances
o Fears
o Phobias
o Depression
o Guilt
o Shame
o Anger
o Long-term effects
o Self-destructive ideation and behaviors
o Anxiety
o Tension
o Nightmares
o Sleeplessness
o Dissociation
o Feelings of isolation
o Lower self-esteem
o Fear of conflict w/ Hs or sexual partners
o PTSD

The Basis for Criminal Intervention

o Choice on a civil or criminal remedy is going to depend on the particular facts of the case
o Factors
o Seriousness of the abuse
o Whether the abuse occurs inside rather than outside the family
o Presence of maternal support
o Standard of proof and amount of evidence
o Purposes of the proceeding

Legal Standards
o Ferris v. Santa Clara County No privacy right of an adult to engage in sexual relations w/ a child
o State and federal sex crimes against children
o State codes have number of crimes that operate only against sexual activity w/ child victims
 o Federal crimes involving child sexual abuse and interstate travel
o Common law, force was necessary requisite for a sex crime, however states had to address sex with underage girls where
there was no force.
o Forcible v. Statutory Rape
o Forcible rape
all about proof of submission b/c of threat of force or force itself
done by forcible compulsion
o Statutory rape
Key is victims age
In most states is strict liability
consent is not a defense
Mistake of age can be a defense (depends on the state)
Older victims
Less serious crimes
o Consensual Sexual Activity b/w Adolescents
o Nearly of all sexual assaults on children are perpetrated by other children, including ones a layperson might find
consensual
o If 2 underage both can be prosecuted
o Rape laws are now gender-neutral
o Marriage Defense
o Up to 1980s- 90s marriage was a defense to all rape prosecutions
o Forcible rape can be convicted if happens in course of marriage
o Statutory rape cannot be convicted if happens in course of marriage
o Statutory rape prosecutions have not helped to control rate of teenage out-of-wedlock pregnancies
o Confidentiality and the Media
o Media doesnt reveal the names of child victims of sex crimes
o All out of self-restraint, not constitutional compulsion
not under the 1st amendment
this is a matter of newspaper policy- self restraint
o Sexual Enticement of Children on the Internet
o Molesters not so limited anymore b/c of the internet
o Percentage of kids who say theyve been propositioned on the Internet is pretty high
o Statutes read a person you believe to be a child
o now many are prosecuted under attempt

Proving the Case

Difficult to detect and prosecute b/c only witness is the victim
General Difficulties of Proof
States case severely hampered if the child witness cant testify
Effectiveness of child victim as a witness limited if testifies (whats normal for a child victim isnt normal for a regular
witness)
Lack of corroborative physical or medical evidence
Rely on mental health professionals often
Civil commitment statutes
if the state believes that it has expert testimony that says that a pedophile cannot be cured, the state can go to court for a
civil commitment order to be signed by a judge, which can hold you in civil confinement until you are cured (which may
be never)
Eliciting the Child Victims Testimony
can use face to face testimony in court
o any age is deemed competent to testify in sex crimes
 however this is very difficult
Recent Efforts to Encourage Elicitation
o Some states have created hearsay exceptions for child victims
o 2 approaches to encourage elicitation (alternatives to face to face testimony)
Identify specific crimes and allow hearsay if generally trustworthy
Ex parte videotapes of child b/f trial and admit in lieu of direct examination
o Alternate Testifying Methods
Maryland v. Craig (Witness Protection Statutes)
Not a hearsay case b/c the child testified
CC normally requires an actual face-to-face meeting b/w the and the witness b/f trier of fact
BUT just a strong preference
Will yield if denial of confrontation necessary to further an important public policy and
where testimonys reliability is otherwise assured
o One public policy is to protect physical and psychological well-being of child sex
abuse victims from trauma that would be caused by testifying in physical presence of
the
o TC has to make a case-specific finding that:
The particular child witness would be traumatized, not by the
courtroom generally, but by presence of the
The emotional distress is more than de minimis
Countervailing Interests
o states interest in child protection
o childs interest in not being forced to relive the trauma any more than necessary
o accused interest in a fair trial.
So to use another procedure, have to:
Show by PotE that this child would be seriously traumatized by testifying in the physical
presence of the
Still have to be under oath or affirmation
Child must be subject to cross-examination
Jury has to be able to view the childs demeanor
Note prosecutors usually get what they want w/ respect to this issue
o Child Victims Ex Parte Video Statement
Handful of states allow admission of videotape w/out
Emotional trauma showing
Cross-examination
o Competency of Child Witnesses
Young child is competent to testify if meets 5 requirements
Understand obligation to tell truth
Mental capacity to remember what happened accurately
Memory sufficient enough to remember most things that happened
Capacity to express in words what happened
Capacity to understand simple questions about it
Some states have relaxed competency rules for children in sexual abuse cases
o All prospective witnesses must be sworn in or affirmed b/f testifying including children
o Manner of Examination
TCs have great discretion concerning how children are examined
Absolute right to have parent present in courtroom
Leading questions permitted on direct
May control and limit the cross-examination
 Court commits a reversible error where judges behavior amounts to vouching for the witness
o Closing the Courtroom
6th Amendment issue if complains
1st Amendment issue if another complains
The 6th Amendment Confrontation Clause
o Crawford v. Washington
An admission of out-of-court testimonial statements in criminal cases is precluded
UNLESS
Witness is unavailable
AND
Prior opportunity to cross-examine
3 classes of testimonial statements
Ex-parte in court testimony
Out-of-court statements contained in formalized testimonial materials
Statements made under circumstances where an objective witness would reasonably believe
the statement would be able to use for later trial
o Davis v. Washington gives testimonial/non-testimonial distinction
Testimonial primary purpose to establish or prove past events potentially relevant for future
prosecution
Non-testimonial primary purpose is to meet ongoing emergency
o Forfeiture by Wrongdoing If procure the unavailability of the witness forfeit the CC right
o General Child Hearsay Exception Statutes
Permits admission of a particularly young sexual abuse victims out-of-court statements that appear
trustworthy
Factors to look at for trustworthiness if statute is silent
Spontaneity and consistent repetition
Mental state
Motive to fabricate
Use of terminology or description not normally w/in knowledge of child that age

Prospective Restraints on the Offender

o B/c prosecutors may be concerned w/ having the young victim relive the trauma in a public forum, might decide not to charge
alleged perpetrator or decide to accept a plea bargain
o And then this dangerous defendant ends up on the streets sooner than would have if convicted
o Civil Commitment Statutes
o Sexual predator civil commitment statutes arose b/c the regular civil commitment statutes were inadequate against
sex offenders
o State must provide treatment to sex offenders while in prison BUT if the state feels toward end of sentence that the
inmate still has a mental defect, the state may institute a civil commitment proceeding to keep committed to mental
hospital until cured of mental abnormality
o High costs associated w/ keeping the offenders in forever, though
o Statutes have survived double jeopardy and ex post facto challenges
o Registration and Community Notification (Megans Laws)
o Requires those who had committed designated crimes involving sexual assault to register w/ authorities and will
have notice to public about registrants, including their whereabouts
o Now Congress requires a national registry designed to make various state provisions effective nationally
o Double jeopardy and ex post facto challenges, but have survived
o BUT if inclusion on the list requires that they are a danger to children, but have a pre-list hearing
o Megans Laws vary w/ respect to juvenile perpetrators
Silent
 Apply only to juveniles
Only if convicted in criminal court
Only when likely to repeat an offense
Specifically exclude
o Some communities have problems w/ vigilantism
o 5 states make rape of a child punishable by death even if the victim survives
 Child Pornography
o NY v. Ferber
o Child pornography the pictorial representation of children engaged in sexual activity
o Held: that child pornography is unprotected by the First Amendment
Exploitive use of children in pornography is a serious national problem
States have a compelling interest in safeguarding the physical and psychological well-being of a minor and
in the prevention of sexual exploitation and abuse of children
Use of children as subjects in pornographic materials is harmful to physiological, emotional, and mental
health of child b/c the materials produced are a permanent record of the childs participation
o It does NOT authorize the government to regulate other stuff to protect children
o May NOT be convicted for publishing an article or giving a talk that describes children engaged sexual activity b/c the
definition of child pornography only includes photographs and films
o Several ways to create child pornography
o 1996 Congress legislated against child pornography
o Decided in the Ashcroft v. ACLU case
o Methods other than taking pictures of child
Morph photograph and make it appear as though real child engaged in sexual activity
This fits most squarely within Ferber
Because the concern is about protecting children from a permanent record of the pornography
Take photograph of adult and make adult look like child
Realistic image of non-existent child
o Which of these 3 types of virtual child pornography would be squarely w/in Ferber? Morphing the real child b/c
worried about protecting children from a permanent record of this pornography
o Congress knew the other 2 were a step away from Ferber
o What is Congressional purpose for those 2?
Whetting the appetite of pedophiles
Helping fueling the market for what Ferber was concerned w/
Will complicate prosecutions b/c will have to prove that is a real photograph of a real child
Pedophiles to show pictures to real children to entice them to do something
o SCOTUS has not decided whether photographs and films of nude children or partially nude children, without sexual activity,
constitute punishable child pornography or whether is protected 1st Amendment speech
o Osborne v. Ohio Court upheld a statute that prohibited possession and viewing of non-obscene child pornography even
w/out proof that possessor intended to distribute the material
o Congress and a few states require photo processors to report customers sexual depictions of children on film

Sexting

o Growing numbers of teens are taking nude, semi-nude or other sexually explicit photos of themselves and then sending the
photos to friends electronically. According to one nationwide survey by the National Campaign to Prevent Teen and Unplanned
Pregnancy, about 20% of teens acknowledge participating in this so-called sexting. Most of the participating teens (69%) send the photos
to their boyfriends or girlfriends, or someone they would like to date. . Once sent, the photos may be distributed widely by cell phones, the
Internet and other electronic means.
o When the relationship goes sour or ends, the materials may be distributed by the friend or another classmate who received them.
o 255
o Photographed teens reportedly also sometimes fall victim to sextortion by a pornographer who demands more explicit photographs in
return for not publicly revealing the earlier ones
o Some prosecutors have moved against sexting under existing felony laws that criminalize production, distribution or possession of child
pornography. Most of these laws were enacted after Ferber but before development of cellphones and other contemporary technology; the
enactors intended to reach adults who exploit children, and not children who film themselves. These laws carry potentially serious
consequences because, even if the sexter is not confined or incarcerated, a delinquency adjudication or criminal conviction arising from
sexting might obligate the sexter to register as a sex offender, perhaps for life.
o At least 20 states have enacted legislation aimed at distinguishing sexting from child pornography, though such legislation has failed in
several other states. An important potential constitutional question is whether the photographs, otherwise proscribable within the language
of the applicable statute, were nudity protected by the First Amendment.
o
 DELINQUENCY
o Juvenile courts have exclusive original jurisdiction over claims that child committed a delinquent act
o Delinquent act an act that would be a crime if committed by an adult (felonies and misdemeanors)

Juvenile Crime in America

o History of Juvenile Crime in America
o Americans have always been concerned about juvenile crime
Was part of the impetus for juvenile court phenomenon
o Juvenile court movement began in 1870s
Child savers fought to get children out of the adult criminal court system and adult prisons
Want to keep them out of a school for crime
Also many had committed no crime as to todays standards
o Short explanations
1830s-40s houses of refuse
1850s orphan trains
End of 1800s curfew statutes
Early 1900s mothers allowances
Delinquency rate rose during the depression
WWII delinquency rose during Depression
Post-WWII continued rising
1960s Congress became involved
o Recently national attention on violent juvenile crime
o Experts predicted a 1990s violent crime wave
o Dead-wrong prediction
o Juvenile crime peaked in 1989
o Get-tough measures passed in 1990s and still on the books here
o These measures have dramatically changed the role of the juvenile court
o Although rate declining, many Americans still believe that its rising
o Minorities over-represented in the system
o Girls in juvenile justice system growing
o historically, girls were picked up for ungovernability (in much higher percentages than boys)
boys were picked up as delinquents
o historically, the delinquency system was not prepared for delinquent girls because they have different needs than
delinquent boys
o States have really developed gender-specific programming for girls
o Juvenile delinquency related to poverty
o Arrest rate connected to zero tolerance policies in schools
o Youth gangs peaked in mid 1990s
o Youth gang members are responsible for more than their share of offenses

The Juvenile Court as an Institution

The Juvenile Courts Original Conception
llinois enacted first juvenile court act in 1899 (Cook County-Chicago)
This special court for children concept spread across the country like wildfire
1903 first MO juvenile court
o by WWI, a juvenile court existed in every county in Missouri
Prevailing view is that juvenile court is a result of a humanitarian movement to help children achieve better lives
Revisionists think they were just trying conform children to middle-class standards
5 Characteristics of Courts Delinquency Jurisdiction
 Individualized rehabilitation and treatment
o Were quasi-social welfare agencies
Sanctions based on the juveniles condition, not on what he did
Disposition could be more or less severe than what would impose on adult
o Special vocabulary
Crime = act of delinquency
Criminal = delinquent
Arrest = taken into custody
Complaint, indictment, or charge = petition of delinquency
Warrant = summons
Arraignment = initial hearing
Jailed = held in detention
Trial = hearing
Conviction = adjudication, finding of involvement, or finding of delinquency
Conviction or acquittal = disposition
Convicted and sent to prison = placed in a training school, reformatory, or group home
Parole = aftercare
Civil jurisdiction
o Delinquency was, and still is, a civil proceeding
o OK b/c parens patriae was in English Chancery Court
o Under Gault, its a hybrid proceeding b/c that case gave child some DP rights
o Attitude at beginning was that due process was an annoyance
o Analogies drawn w/ medical treatment
Informal Procedure
o B/c aimed at protecting and rehabilitating than punishing
o Didnt look like courtroom (more like office)
o Improper evidence admitted b/c was inquisitory, not accusatory
o B/c procedurally informal, little room for lawyers and had non-lawyer judges
o If lawyer there, it was to represent parent or complainant
o Has been controversial in last couple years
o Much more informal in out-state courts than in metropolitan courts
Confidentiality
o Most states have constitutional provisions that guarantee open courts and the federal constitution guarantees
criminal s an open trial (and a broad right of the press to cover the trial)
o Juvenile court acts always got away w/ closing juvenile proceedings to the public, closed records, and
expunging record once is age of majority
o Dont want to create a stigma to make it more difficult to rehabilitate
o MO now has presumption of open-court proceedings
Incapacitation of Children Separate from Adults
o One of the aims for juvenile court reformers
o Wanted to segregate from hardened adult prisoners
In Missouri, juveniles will not be placed in an adult prison
some states allow it
this is not a good idea for a number of reasons
o teaches children to be criminals
o sexual abuse

The Contemporary Juvenile Court

o High caseloads
o 10 minutes/case
 o Dont meet lawyer b/f get to court
o 5 characteristics have undergone strain moving to more punitive model
o 2 justifications for a 21st century juvenile court
o Continued agreement that young offenders are different
o Societys willingness to give young offenders the time to reform
o BUT now its more about accountability
o 3 objectives that federal office has
o Hold juvenile accountable
o Enable the juvenile to become a capable, productive, and responsible citizen
o Ensure the safety of the community
o After Gault, there are constitutional restraints on juvenile court informality
o MO is pretty good in this respect; even the urban juvenile court judges
o One of the problems around the country is that juvenile court judges dont want to be juvenile court judges; they think its the
bottom of the barrel

The Contours of Delinquency

Culpability: Infancy Defense
o criminal intent at the time of the crime
o At Common Law, a child could be convicted only if found to be capable of having a culpable mental state
o A child below the age of 7 conclusively established that could not commit a crime b/c couldnt form mental state
necessary
o If b/w 7 and 14 presumed incapable of forming a mental state
but was a rebuttable presumption
o children over 14 had adult capacity
o Gammons v. Berlat
o Majority infancy defense doesnt apply in juvenile court
o Dissent infancy defense applies in juvenile court
o What is the philosophical differences b/w the two?
Majority CL infancy defense doesnt apply b/c juvenile court is a rehabilitative agent
Dissent forget the euphemisms; a delinquency proceeding is punitive
o Many states have the infancy defense written into the juvenile court codes
o The ones that dont want to give juvenile courts an opportunity in appropriate cases to order treatment for a kid
who needs it
o Minimum and Maximum Ages of Delinquency Jurisdiction
o Lowest ages rage from 6-10 in the states that have lower limits (16 states)
If lower limit precludes a kid from delinquency jurisdiction and really needs help file a neglect petition
o All states have statutes defining maximum age of delinquency (most 18)
o Many states have statutory exceptions to the maximum age will accelerate the criminal courts exclusive original
jurisdiction
many states have lower ages because of the Get Tough initiative
in Missouri it is 17.
o Factors relevant to determining whether juvenile knew of wrongfulness of the conduct (mostly for children that are from
ages 7-14):
o Nature of crime
o Childs age and maturity
o Whether child evidenced a desire for secrecy
o Whether the child told the victim (if any) not to tell
o Prior conduct similar to that charged
o Any consequences that attached to that prior conduct
o Whether the child had made an acknowledgement that the behavior is wrong and could lead to detention
 o 3 Reasons Why Juveniles Have Diminished Capacity (from Roper v. Simmons)
o Lack of maturity and an underdeveloped sense of responsibility
o More vulnerable or susceptible to negative influences and outside pressures
o Character of a juvenile is not as well formed as that of an adult

The Insanity Defense

o Federal Constitution recognizes no due process right to the insanity defense in state courts
o BUT all states provide defense via statute
o HOWEVER entitlement of insanity defense at juvenile proceedings is no so universal
o Golden v. State
o Jonesboro, Arkansas case
o No DP constitutional right to assert the insanity defense
o No EP violation b/c rational basis exists nature of juvenile proceedings, difference in purpose, not same procedural
safeguards
o Tactical Issue: Do you raise insanity as a defense?
o If raise insanity as a defense, can be committed past age 18 (or 21)
o Might be best not to raise the defense at all

Transfer: Adultification of Juvenile Crime

Children have no federal or state constitutional right to be processed as delinquents in juvenile court solely from statute
Usually for:
Serious crimes
Repeat offenders
Offenders who have shown themselves unresponsive to rehabilitative treatment available in the juvenile justice
system
Have had authority to transfer to adult court since the beginning of the juvenile court system BUT used to be the exception
instead of the rule
States have been continually lowering the transfer age and crimes for which it could be used
Missouri
o 1989 14 and only for felonies
o Today 12; no minimum age for 7 deadly sins
BUT MO is rarely transfers anyone
In MO, there can be no transfer unless the juvenile court judge orders it
o this isnt true in every state
in some states, there are crimes outside of the 7 transfer crimes in which there is an automatic
transfer
3 types of transfer statutes
Automatic
o there is no hearing on this, this is where it starts
Judicial-discretionary
o makes the transfer order after holding a hearing and letting each side present evidence
Prosecutorial-discretionary
Age at which can be transfers differs by crime and by age from state to state
Not all states require consideration of juveniles amenability to treatment
Not all states require competence or maturity to be taken into account
State v. Mitchell
Kid killed a convenience store worker and was convicted as an adult (kid had hard childhood)
Case is in the book to show why transfer decision isnt always so easy
2 views of transfer
Reserve transfer for hard cases
 Juvenile court needs to keep jurisdiction over most serious cases and offenders in order to rehabilitate
2002 only 1.3% of petitioned delinquency (16 or older) and .2% (younger) cases were judicially transferred to criminal
court
Blended Sentencing
receive a juvenile disposition, then at the age of 21 (or whenever the juvenile age ends) a hearing on imposing the
conditional sentence
o most states have these
even some states allowed transferred cases to impose juvenile sentences. Missouri is not one of
those states.
Transfer hearing
No constitutional right to hearing if transfer automatic or pursuant to prosecutorial discretion statute
BUT must have a hearing if judicial-discretionary statute
o Court only has to decide if statutory requirements for discretionary transfer have been met
Lesser-Included Offenses
Can the adult court impose a sentence for a lesser offense that couldnt be transferred for if acquitted on charges on
which transferred for?
States differ
o Once in court, youre there
o Transfer back to juvenile court
Juvenile transferred to criminal court receives only the rights and protections afforded criminal s (lose all juvenile
protections)
treated like all other adult defendants
Disproportionate minority youths are transferred to criminal court
Is transfer effective?
Justification for lowering minimum age is that will lower juvenile crime rate
But most states dont transfer too many kids
Does a juvenile get a tougher sentence in criminal court than they do in juvenile court?
some studies show yes
some show no
Problems with prosecuting children in criminal court for heinous crimes
harder to get harsh sentences for children because juries are more sympathetic to children (jury nullification)
jury will consider age as a mitigating factor and give them a lesser sentence (possibly)
Deterrence by transfer does not work that well because most of the population isnt aware of transfer laws
Does transfer increase public safety?
in one sense it might, but...
Studies tend to indicate that the recidivism rate is considerably higher for juveniles who are transferred and
sentenced in adult court than kids who stay in juvenile court
Cant confine juvenile delinquents in an adult prison
But if convicted in adult court then its ok for them to be in an adult prison b/c were tried as adults
Most states do not confine children to adult prisons but some states do
o some states will put the juvenile in adult court immediately
o some wait until the juvenile is 18.
MO. does not place juveniles in adult court
Subject to sexual assault and they learn how to become better criminals
When a transferred juvenile is tried in criminal court, more than the states require that any future proceeding alleging an
offense by the juvenile be heard in criminal court

Delinquency Procedure
Overview
 o Preliminary screening/intake
o If didnt go to court, might have informal adjustment (probation)
o Should be detained? (determined during intake)
o Initial hearing (arraignment)
o Adjudication
o Disposition (where judge relies on social and clinical report)

Arrest and Custody

Arrest
Youth taken into custody must be brought b/f the juvenile court w/in a short time (normally w/in 24 hours)
o must call parents
Court will:
o Inform juvenile of the charges
o Explain applicable constitutional rights
o Appoint counsel if necessary
o Determine conditions for release or order preventive detention
o Set hearing date
Whether can photograph and fingerprint depends on age and/or crime
Typical statute on 1041-43
Police are more likely to detain and arrest minority youths more often than white youths, even when the research
controls for offense seriousness and prior offenses
Search and Seizure
We discuss in the public school context b/c that how it usually comes up
New Jersey v. TLO
o 4th Amendment search and seizure clause applies to public school administrators (b/c applies to any
governmental action)
o Search need only be reasonable
o 2-fold inquiry
Was action justified at its inception?
Was scope reasonable considering what justified the search?
o A LOT of discretion school almost always wins
3 categories of cases in which law enforcement officers involved in the search
o TLOs reasonableness test applies where a school official initiates the search or where police involvement is
minimal
o TLOs reasonableness test applies where a school resource officer, on his own initiative and authority, searches
the student on school grounds during school hours in furtherance of the schools educational-related goals
o PC applies where outside police officers initiate a student search as part of their own investigation or where
school officials act at the behest of these officers
Searches of certain items
o Lockers most courts say no reasonable expectation in a locker b/c usually says in student handbook that
lockers are the property of the school district and the school district can search at anytime
o Metal Detectors
Use of metal detector constitutes a 4th Amendment search
BUT really un-intrusive (so dont need much to support so reasonable in most circumstances)
General metal detector screening in public schools is ok b/c of minimal nature of intrusion
Only problem is when only subject minorities or males (some EP problem)
Things to keep in mind
o public relations issue
o how do you deal with someone in violation
o how to deal with parents
 o Sniff Searches
Sniff searches of individuals usually upheld only if there is individualized suspicion
BUT needs to be reasonable at its inception so need a record of drug use in the school
USSC has held that dog sniffs of personal property are no searches (US v. Place)
o Strip Searches
Has to be reasonable at its inception AND in how its conducted
Will almost always be unconstitutional b/c going to take a lot to get it to reasonable at the inception
Strip Searches Outside School
May be strip searched when enter or remain confined in a juvenile detention facility even for
minor offense
Those who visit prisons on individualized suspicion that might be smuggling contraband
When victim of suspected abuse or neglect
Exclusionary rule applies only to proceedings that are criminal trials (Penn. Bd. of Probation & Parole v. Scott) BUT
USSC has not had the opportunity to decide whether applies to delinquency proceedings
Random Suspicionless Drug Testing
o Cite TLO search has to be reasonable at inception and reasonable method of search
o Vernonia and Earls both met that standard (for those cases, see above)
Interrogation and Confession
Miranda v. Arizona cant use statements stemming from custodial interrogation of the unless it demonstrates the use
of procedural safeguards effective to secure 5th Amendment privilege against self-incrimination
o To waive rights, have to do so voluntarily, knowingly, intelligently
o Voluntary means that has to be a product of free and deliberate choice rather than intimidation, coercion, or
deception
o Knowing and intelligent means that suspect is aware of nature of right being abandoned and consequences of
abandoning
Does Miranda apply in delinquency proceedings? YES (but the SCOTUS has never said so)
o Applies b/c Gault says the 5th Amendment privilege against self-incrimination applies in delinquency cases
o Does not apply to status offense cases
Fare v. Michael C.
o repeat juvenile offender
o Can I see my probation officer? case
o Request by juvenile to speak w/ probation officer not per se request to remain silent
o Government must show waived voluntarily, knowingly, and intelligently
Determined by the totality of the circumstances (which gives almost unlimited judicial discretion)
Includes: age, experience, education, background, intelligence, and whether had capacity to understand
warnings given to him, the nature of 5th amendment rights, and consequences of waiving those rights
o Nothing in this case indicated that he didnt understand
Miranda applies to custodial interrogation by law enforcement officers
o Law enforcement officers interrogator acts as an agent or an instrument of the police
o In custody if under all circumstances, an RP in s position would have understood himself to be under
restraints comparable to those associated w/ a formal arrest
o Interrogation any words or actions by the police, other than those normally attendant on arrest and custody,
that the police should know are reasonably likely to elicit an incriminating response from the suspect
Miranda does not apply in status offenses
Waiving Miranda Rights
o Supposed to get rights and right to remain silent
o BUT juveniles in most states can waive Miranda rights w/out parental consent
o How can they be waived?
MO and of states juvenile code requires an additional warning telling the juvenile that can have a
parent or other responsible adult
 In some states cannot waive w/out parents or other responsible adult
Other states permit children to waive Miranda rights
In some states older can waive along; younger need parents
o Data shows that juveniles, if allowed, waive their Miranda rights more often than adults
Young children are susceptible to confessions made to police that are what the police want to hear
o under the age of 14, they usually wont understand it
Parents role
o Conventional wisdom is that having parents there will help
o Research suggests problems
Parents dont understand warnings
Conflict of interest
Pressure to confess
o sometimes having a parent around can be worse
parent will have to lose wages to come down
parents can induce child to give a confession
Counsels role
o Most kids assigned a lawyer
o But problems:
Dont understand defense counsels role
Are afraid to confide in the lawyer b/c they believe lawyer must assist the court
Feel have more in common w/ their probation officers than w/ defense counsel
PLUS a lot of lawyers dont meet the kids until court day
Number of courts say its against the polices interest not to videotape the confession (want one so that can withstand a
motion to suppress
Do police have to inform the juvenile that might be transferred to adult court?
o States split
o If state doesnt require, police officer can say its just juvenile court and lead the juvenile to waive his rights and
then be transferred to adult court
Intake and Diversion
Prosecutor is the one that decides whether to charge w/ crime
BUT in juvenile court, court staff or juvenile office makes the call during intake
o Decision:
Delinquency petition
Divert out of system
o cases handled informally
Dismissed
Juvenile voluntarily agrees to specific conditions (informal probation will have formal processing if
juvenile fails)
Not going to get diverted out unless admit that did the crime
o If decide formal
Delinquency petition
OR
Request for transfer to adult court
If lawyer representing the child in diversion remember that the client is the child (not the parents)
o Make sure look to Directory of Juvenile Justice Resources in MO for what can do
Purpose of diversion is to help kids w/out going through the juvenile justice system
o Diversion was originally a docket control device
additionally, a lot of juveniles do not need a hearing, usually probation or restitution work just fine
 furthermore, if it would have been tried in front of a judge, they would have come to the same
conclusion
o BUT theres some thought that imposing restrictions in cases where state could not prove the crime beyond a
reasonable doubt
o or something was wrong with the case, and if it went to trial, it would have been dismissed (this is the dark side
of diversion)
o So can be a way for the state to impose conditions on juveniles when couldnt prove the case at trial
In more than of states, can be diverted to youth/teen court
o youth courts are tribunals made up of defense counsel, prosecutor, who are both typically a teenager. The judge
may also be a teenager.
o youth or teens who are guilty of non violent offenses who have admitted their guilt
o youth court will usually sentence apology letters or restitution
Preventative Detention
bail is not available in juvenile delinquency proceedings
Most juveniles are released to their parents, however in some cases, preventative detention is necessary
o preventative detentions is: When they hold the juvenile in detention center until adjudicatory hearing
Most states permit preventive detention when:
o Alleged delinquent would be a danger to himself or others if released
o Might flee from jurisdiction
o No parent or adult to assume supervision
o Has been charged w/ a serious crime
Schall v. Martin
o Preventive detention of juveniles did not constitute punishment but served legitimate state objective of
protecting the community and the juvenile form the hazards of a pre-hearing crime
why did they say this?
because the juvenile hadnt been convicted yet
o innocent until proven guilty
o Pre-heaving procedures afforded the detained juvenile amply protected against erroneous and unnecessary
deprivations of liberty (comports with DUE PROCESS)
Juveniles were entitled to: notice, hearing, and statement of facts and reasons b/f detention
Also entitled to formal PC hearing shortly after detention
Detention strictly limited in time
Detained juveniles entitled to expedited factfinding hearing
absent exceptional circumstances, juveniles could not be detained in a prison or lockup where they
might be exposed to other offenders
Must have a lawyer appointed BUT in many places, the lawyer meets the client 10 minutes b/f seeing the judge
Effect on adjudication and disposition:
o Juvenile court judge hears the preventive detention case (whether threat to himself or community)
o And then hears whether kid is delinquent and what disposition should be
Disparity for minorities being preventively detained
No right to bail if processed in juvenile court (not a criminal proceeding)
Juvenile Justice and Delinquency Prevention Act of 1974 4 federal mandates
o Deinstitutionalization mandate (if only charged w/ status offense or abused or neglect cannot be confined)
o Sight and sound separation from adult inmates
except in exceptional circumstances, a juvenile who is found to only be a delinquent, that juvenile may
not be housed where adult prisoners have access to the juvenile
o Jail and lockup removal cant be detained where will have contact w/ adult inmates
o Disproportionate confinement of minority youth requires states to determine whether minority youth are
detained or confined at rates exceeding minority population of youth
The Adjudicatory Hearing
Gault and the Constitutional Domestication of Delinquency
Less than 10% of petitions require a full hearing (so realistically this doesnt happen all the time)
Informality was a hallmark of juvenile courts
o Court used to be a quasi-social service agency
o All about the needs of the child and how to fix it
o DP and rules of evidence were out of place in juvenile court
o DP got in way of helping the child
In re Gault
o First SCOTUS case that dealt w/ juvenile law procedure w/ respect to the Constitution
o 14th Amendment DP applies in juvenile courts b/c 14th Amendment applies to juveniles
o at the time it was decided: only covers the adjudicatory phase and only applied in a delinquency case (later, it
will be applied to others, such as adoption, status offense, abuse and neglect)
o Rights the court addressed
Notice of charges enough time and particularity to make a defense
Right to counsel entitled to appear w/ lawyer and one will be appointed if cant afford
Confrontation, self-incrimination, cross-examination
Entitled to be confronted against witnesses and entitled to cross examine them
Self-incrimination always held that privilege applies in civil and criminal proceedings alike
(including juvenile court)
o Appellate Review and Transcript of Proceedings
court did not decide a constitutional right to this
however, every state provides for this now
o Since Gault- In re Winship provides that beyond a reasonable doubt is the standard of proof during the
preliminary and dispositional statges of a delinquency proceeding, or in status offense proceedings
however, another case said that there is no right to a jury trial
Not all courts have fully incorporated Gault its one of those areas where the law on the books doesnt reflect the law
in practice
Waiver of Right to Counsel
o A few states prohibit waiver in delinquency cases
o BUT most states allow waiver (voluntarily and intelligently)
o Thousands cajoled into waiving their rights
Discovery
o Several states criminal discovery rules apply in delinquency cases
o Other states disclosure obligations in delinquency cases are defined in special juvenile court discovery rules
o Brady v. Maryland suppression by the prosecution of evidence favorable to an accused upon request violates
DP where the evidence is material either to guilt or to punishment (irrespective of good faith or bad faith of the
prosecution)
Admitting the Delinquency Petitions Allegations
o Boykin v. Alabama DP requires the judge to make sure that s guilty plea is knowing and voluntary
o SCOTUS has never determined whether Boykin applies in delinquency proceedings
o BUT state statutes, rules, or decisions generally require it
o Withdrawing plea allowed if would be allowed in criminal case
State does not comply w/ terms of plea bargain
Plea colloquy did not comply w/ statutory or rule requirements
Juvenile did not waive knowingly and voluntarily
Rules of Evidence states have applied criminal rules of evidence in adjudicatory phase
Parents role
o Juvenile codes typically make the juveniles parent a party to the proceedings, which gives an absolute right to
attend
 o Split whether a TC may exclude an adult from a portion of a hearing pursuant to an order excluding
prospective witnesses until their testimony
Juvenile Court Closure and Its Relaxation
o SCOTUS has not found a constitutional right of public or press access to juvenile proceedings
o Most states have modified or ended court closure in past decade
o Proceedings
Many states have replaced close proceedings w/ presumption of closed proceedings (either by statute
or court decision)
Proponents
Protect the poor
Will foster reform and greater public confidence in the courts operation
Opponents criticize the public airing of intimate details of the lives of perpetrators and child victims
o Records
In nearly all states, the juvenile codes provide for release of information contained in juvenile court
records to at least one of the following:
Prosecutor
Law enforcement
Social agencies
Schools
Victim
Public
Most people there should be a difference b/w adjudicatory records and disposition records
Even in states where records are closed no practical guarantee that incident wont come out (old
friends)
o Media keeps its mouth shut out of self-restraint
Standard of Proof
o In re Winship held that a criminal beyond a reasonable doubt standard applied in the adjudicatory stage
of delinquency proceedings
o Another situation where law on the books is different than the law in practice:
Trier of fact is judge
Some suspicion that judge finds guilt BaRD on evidence that would not satisfy BaRD in criminal cases
Competency to Participate in the Proceeding
Criminal standard whether has present ability to understand nature of court proceedings and to help his defense
Most states have given the right to a competency hearing (in state constitutions, statutes, or court rules)
Look at mental retardation AND developmental immaturity
Matter of Welfare of D.D.N. his competency was very low but court still found competent (probably so that he could
get some help)
Strategic consideration
o Probably wont raise this issue at all
o B/c if found incompetent to proceed, the state could lock up in a mental institution for longer than juvenile court
would be able to put in juvenile confinement (stops at 21)
Jury Trial
Issue didnt come up b/f Gault
McKeiver v. Pennsylvania Trial by jury in delinquency cases is not a constitutional right
o 14th doesnt impose entire bill of rights on juveniles
o Possibility of turning in an adversary proceeding
o Jury trials wouldnt greatly strengthen fact finding function
o Want to allow states to experiment
o Still could use an advisory jury if chose
 o Too much potential for delay and the other attributes of the adversarial criminal system
o If do this, ignoring all the concern, etc. that juvenile justice system supposed to be about
Few states have granted general right to jury trial BUT very rarely requested
Courts have rejected the argument that delinquency more punitive now so requires a jury trial
Absence of the jury trial right may limit a juvenile courts authority to impose incarceration in an adult facility
Double Jeopardy
Breed v. Jones Double jeopardy when convicted in criminal court after juvenile court adjudicatory proceeding
Swisher v. Brady (Maryland case) Cases decided by referees first do not implicate double jeopardy
o Referee makes decision
o Writes report and recommendation to juvenile court judge
o Juvenile court judge will determine whether to accept or reject judgment
In Missouri, each court has circuit judges and commissioners
o commissioners are similar to magistrate judges in the federal system
however, magistrate judges cannot grant a final order, it must be signed by a full federal judge
similarly, commissioners cannot sign a final order, only circuit judges can render full judgments
o The fact that a commissioner hears a case first, and then a judge signs off on the order does not implement
double jeopardy
Speedy Trial
6th Amendment guarantees the right to a speedy trial in all criminal prosecutions
4-factor test for determining motion to dismiss for lack of speedy trial
o Length of the delay
o Reason the government assigns for the delay
o Whether and how the asserted the right
o Whether the delay prejudiced the
SCOTUS never has said right to speedy trial in juvenile proceedings
State courts disagree (w/ respect to whether state and federal constitution guarantee the right)
Recommendation
o No more than 60 days b/w police referral and disposition if juvenile in secure detention
o No more than 90 days if not in secure detention
Delays in juvenile court processing may adversely affect victims
Disposition
General Standards
Least to most severe
o Reprimanding or warning juvenile
o Placing juvenile on probation
o Ordering that the juvenile attend counseling or substance abuse or mental health treatment
o Ordering the juvenile pay a fine, make restitution, or perform community service
o Placing juvenile in a group home, foster home, or similar residential facility
o Committing the juvenile to secure institution
o Committing juvenile to an outside agency or mental health program
Graduated sanctions w/in intervention component:
o Immediate intervention for first-timers or non-serious offenders (nonresidential community-based programs)
only 20% of juveniles come back into the system
o Intermediate sanctions those who dont qualify for immediate intervention or those who fail to respond to
immediate intervention (nonresidential or residential)
o Secure corrections those who have to lock up to protect the public (need to couple it w/ treatment and
rehabilitation to be effective)
training schools
usually pretty bad
 ranches
wilderness camps
o danger is that there are a lot of private ones, and terrible things happen
Graduated sanctions w/in secure corrections
o Community confinement
o Incarceration in training schools, camps, and ranches
o Transfer to the CJ system
Pre-disposition investigation report
o Will include a social history of the factors likely to be most persuasive to the judges disposition
o Recommends an appropriate disposition 90% of time its accepted by the judge
Maximum Dispositional Age
o In 34 states juvenile court can provide services until 21st birthday
o Blended sentencing juvenile + adult sentence
Probation
o Sanction must frequently imposed
o Voluntary or involuntary
o Conditions must be reasonably related to rehabilitation or offense committed
o Court may hold periodic hearings to review the juveniles compliance and to consider probation staff reports
Court may require parents to participate in the disposition
Victims rights
o Every state juvenile justice code grants rights to victims of juvenile crime
o Right to:
Receive notice of juvenile court proceedings
Attend juvenile court proceedings (even if otherwise closed)
Heard through the proceedings
Make statement at disposition phase
Participate in compensation programs
Learn of names and addresses of the offender and his parents
Receive notice of the offenders release from custody
Supervised aftercare = parole for kids
o involves assistance to help kids get jobs
o tracks juveniles and what they are doing
Expungement or Sealing of the Record
o When occurs, the record of juvenile crime is deemed to never have existed
o traditionally (up until 20-25 years ago): there was a near absolute right to have a record expunged
o Now these statutes are not unconditional (can get to the record)
expungement is not as available as it used to be
if it was a felony or a repeat offense, then it may not be expunged
o Not automatic, must ask for it!!!
many kids do not realize they can do this when they turn 18
juvenile lawyer needs to tell parents and child about this so they know.
Interagency Sharing
o good to reduce costs
o confidentiality issues though
needs to be tailored to keep in mind the childs confidentiality
Interstate Compact
o if a juvenile is in confinement or in aftercare in one state, and the family moves to another state, than the first
state will transfer its authority to the new state
Prevention programs
 o prevention vs. reaction
Very important in juvenile justice today
bullying in schools: most promising strategy is prevention programs in school
midnight basketball games in high school
after school programs
avoid delinquency instead of reacting to it after it happens
Will never prevent 100%, but rather reduces the numbers
Restorative Justice
o Bringing together the individuals who have been affected by an offense and having them agree on how to repair
the harm caused by the crime w/ the goal of restoring victims, offenders, and communities in a way that all
agree is just
o Court seeks a balanced approach least restrictive disposition that enhances the accountability, provides victim
relief, and protects the community
o Parts:
Juvenile restitution
Paying back the victim/community through money or services
Have to take ability to pay into consideration
Cant be for an amount exceeding the actual loss suffered
Community service
Especially helpful when relates to the wrongdoing and isnt just a form of punishment
Juvenile Victim-Offender Mediation
different than regular mediation:
o used when the victim has acknowledged he committed the crime, and the victim
directly explains to the offender the consequences of the crime
o done way less frequently than the other two parts
Right to Treatment
Private Litigation
o Private lawsuits challenges awful conditions in juvenile correctional institutions
o Federal courts have fashioned minimum care and treatment standards, sometimes after finding conditions that
violated the 8th Amendment
o Not very successful
US Justice Department Initiatives
o Civil Rights of Institutionalized Persons Act
Authorizes the DOJ to sue state and local governments in federal court to remedy conditions that deny
constitutional rights to persons in public institutions
Court may order equitable remedies
Only systemic conditions (nothing thats happened to individuals)
Is a vehicle to enforce constitutional rights
o DOJ has had some success
Overcrowding
39% of juvenile detention and confinement facilities have more residents than available beds
Crowding dangerous AND detrimental to rehabilitation
Many children placed in secure confinement that arent threats to themselves or the community
Mental Disabilities
32% suffer from mental disabilities
2/3 met criteria for at least 1 psychiatric disorder
Juvenile justice system is the only place for some kids to get mental health care
o Mental health care for kids collapsed in 1990s
o Huge risk when commit to system to get mental health care when do they get out?
 Privatizing Juvenile Corrections
59% juvenile residential facilities are privately ran
Worst conditions there (by far)
Boot Camps
Also known as shock incarceration program
Idea was to instill discipline through quasi-military basic training
No significant difference on recidivism rates
Success Story Missouri (The Gold Standard)
Small regional, community-based facilities that enable highly trained staff to treat delinquent children w/ constant
therapy in small-group settings
College-educated youth specialists
Little violence or gang activity and no suicides
Decentralization
Individual Treatment Plan (ITP) for each youth
Recidivism rate -2/3 below most other states (only 10%)
All of this is less expensive than large-scale juvenile confinement
Roper v. Simmons violation of 8th to impose the death penalty on offenders who were under 18 at time committed their crimes
Miller v. Alabama JLWOP is violation of 8th

Appeal
o B/f Gault, appellate review of delinquency dispositions was a relative rarity
o States today provide a statutory right of appeal now
o B/c of budgetary constraints, many juvenile statutes or rules now permit audio-taped or videotaped transcripts rather than
stenographic transcriptions
Juvenile Courts Future
o Nobody is going to abolish the juvenile court
o Surveys indicate that most people prefer prevention and have a good feeling about the juvenile court system