ESSAY ON ABUSE

START WITH HISTORY AND DEFINITIONS

THEN REPORTING & INVESTIGATION REQUIREMENT

 INCLUDE THE PATTERN FOR THE ABUSE IN THE INVESTIGATION TO STRENGTHEN

ARGUMENT
o ABUSE LIKELY OCCURRED BECAUSE (CREAC)
 DISCUSS PARENT’S FUNDAMENTAL RIGHT TO FAMILY (CREAC)
o ARGUE SUBSTANTIVE DUE PROCESS RIGHT TO FAMILY
 DISCUSS STATE RIGHT TO STEP IN DUE TO PATTERN OF ABUSE AND HOW THE COMPELLING
STATE INTEREST OVERRIDES PARENTAL (CREAC)
o MATTHEWS BALANCING
 DOES THE INVESTIGATION ESTABLISH ABUSE PER THE DEFINITIONS OF ABUSE IN THE
OUTLINE BELOW
 REMEMBER DUTY TO INVESTIGATE IF THERE IS A CLAIM AGAINST A PRIVATE ACTOR FOR
SUBSTANTIVE DUE PROCESS RIGHTS- DESHANEY

ABUSE IS LIKELY ESTABLISHED BECAUSE NEXT QUESTION WILL LIKELY REQUIRE US TO OUTLINE FOSTER
CARE

 START WITH REASONABLE EFFORTS

o ARE REASONABLE EFFORTS REQUIRED???? (CREAC)
 ANY RIGHTS OF THE FOSTER CHILD THAT MAY NEED TO BE ANALYZED
o NO RIGHT TO FOSTER FAMILY
o NO RIGHT TO BE PLACED WITH SAME FAMILY AS OTHER SIBLINGS
o RIGHT TO PROTECTION WHILE IN STATE CARE
 MD ABBOTT!

Evolving Conception; Children’s Articulation of their own rights and interests (BASIC RIGHTS AT OUTSET OF CLASS)

Prince v. Massachusetts – Labor Laws

 Parental labor laws established

o Myer and Pierce, emphasis is on parental right to rear child. Prince looks at child’s interest
 Guardian cases
 Pierce
o Parent authority to provide religious with secular schooling
 Meyer
o Children can receive teaching in languages other than nations common tongue and
guarded against the states encroachment
o Children individual rights in labor laws established
o First case to discuss children’s rights
o Dictum in Prince is a consideration for Brown v. Board of Education

Brown v. Board of Education- Education rights

 Vindicated rights held by schoolchildren and not by their parents

 Segregation of children in public schools solely on the basis of race
 Equal Rights case under the Fourteenth Amendment.
 Plaintiffs are the actual STUDENTS
 Bolling v. Sharp
o Segregation imposes burden on African American children that constitutes an arbitrary deprivation of their liberty in
violation of due process clause
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  Cooper v. Aaron
o Rebuffed efforts by Arkansas governor and legislature to delay implementing Brown
 Led troops
 “delay in any guise in order to deny the constitutional rights of Negro children could not be
countenanced.”
 In Re Gault
o “Neither the fourteenth amendment nor the bill or rights applies to children alone.”
 Children recognized as people
 Overcomes constitution's failure to mention children
 Children in criminal proceedings have the same rights as adults (6th and 8th amendment)
 Troxel v. Granville
o Grandparents want more visitation rights
o “Parents have the right to choose whether to expose their children to certain people and ideas.” Basically As a right,
parent can parent/raise child in a manner they choose

Constitutional Concerns: - Mix in with above and make into one sentence or two rules.
o Meyers
 Liberty right in Family
 Right, to conceive and raise a child
 Deemed essential
o Pierce
 Child is not a mere creature of the state
 Those who nurture them and direct their destiny have the right and duty to recognize and
prepare for additional obligations
o Prince
 Custody, care, and nurture of the child reside first with the parents
o Troxel
 Third-party grandparents have no right to visitation
 The parent directs the child’s care, custody, and control

Best Interest of a Child:

I. “Best Interest of the Child Standard” (CANNOT DILUTE A FIT PARENT’S CONSTITUTIONAL RIGHTS) -
McDermott
a. McDermott
i. mom unfit, dad away for job, grandparents want child..granted custody over dad…
ii. Dad has fundamental right
b. You should be able to make an educated prediction on who gets custody of a child just by weighing each of
these categories.
c. Best Interest of Child Framed
i. Fight between fit parents
1. Example in a divorce
ii. State proceedings where state injects itself into parenting situations to protect the child
1. Loco parentis
iii. Third-party custody disputes
1. Foster parent
2. Prospective Adoptive parent
3. Relative of child
d. Factors that MUST be taken into consideration:
i. Sex of the children

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 1. When the children are smaller, gender of the children doesn’t carry as much influence. As
they grow older it will take on a greater significance.
2. The older they are, the more of a preference they show for wanting to live with the same
gender parent carries a huge weight. If they cross and want to live with the opposite parent is
does not carry as much weight.
ii. Age of the child
1. Blends into gender
iii. Personal characteristics of each of the children
1. What is it about “that” child that makes it more important that they reside with “that” parent?
Whatever makes this child distinct? It may be a matter of the emotional bonding. If the young
person is very religious and one parent is not, something like this can sway custody.
iv. The Respective home environments that they will provide
1. Literally – WHERE (physically) will these children live? Get your client to take photos of
every room that the child will live in (clean it up first). Take photos of the exterior of the
home. Do this so the judge will have some confidence that the physical structure is suitable
for a child.
2. If the other party does not live in a suitable structure – either get your client or PI to go by and
get photos. The courts in Alabama usually want each child to have their own room. You
cannot have the children sharing the same room, especially if they are of the opposite sex.
3. You have to offer these as a composite exhibit.
v. What will be going on in the home? How many people will be living there?
1. What is the family composition?
a. Too many people crowded into a house, will weigh against parent.
b. Live in boyfriend/girlfriend – this is directly relevant to home environment. They
usually do not like this at all. Client needs to choose boyfriend and children. That is
the bottom line.
2. Domestic Violence?
3. Drug or alcohol abuse?
vi. Parent’s respective ages
1. Age and maturing make a big difference. Too old and too young plays a part.
vii. Character of parents
1. People with big secrets to hide better not get involved in a custody battle.
2. Anything unsavory that can be proven about this parent is relevant. Criminal history is a big
negative.
viii. Stability of parents and home
1. Who can hold a job and who can’t? Has one party moved over and over since the divorce?
2. The court wants to find out who is stable and can provide some sort of stability for the
children. Passing bad checks, evictions, etc. you are describing a lifestyle that is
unwholesome for a child.
ix. Mental stability
1. With custody, the psychological patient (psycho therapist) privilege is waived and does not
apply. Subject to discovery. This is ANY history. Before the battle and during. You can test for
reality of mental stability by asking the court to order a mental evaluation. This is like asking
for a drug test. They will order both parties of the children to undergo the evaluation. You just
don’t know how the report will come out. The psychologist must be paid. This adds to the
cost of the case.
2. Ask your client if they have any mental issues. Have you ever told anyone that you felt
suicidal or if they have been diagnosed for anything?
x. Physical health of each parent
1. The judge is looking for someone who is physically strong enough to care for these children.
Is a physical impairment there that would disable them from property taking care of the
children? This can often seem cruel.
xi. The interest each parent has displayed in the past to provide for the child’s needs
1. This is truly one of the MOST SIGNIFICANT of all the factors
2. The court is looking to see who has been the primary caregiver. If all things are equal, the one
who has provided the primary care will be awarded custody. This is determined by the

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 amount of time the parent has spent with the child prior to filing the divorce. The point is that
a child is accustomed to a certain way of living.
3. You cannot beat a stay at home parent in a custody battle. Unless, they go off the deep end
and do something dangerous during the divorce stage. We want the one with the highest
money making potential in the market place. This is not intended to hurt the party. It is always
about the best interests of the child.
xii. Relationship of each child to his/her siblings
1. Do we want to separate these children from each other? They may be relying on each more
and more during the time of divorce.
2. In the state of Alabama there must be a compelling interest to separate siblings. The
presumption is that if there are several siblings they are better off staying together. This can
be overcome by showing that the children are bonded to different parents to different degrees
to strengthen the bond.
3. Age of siblings plays a factor to some degree.
xiii. Relationship of each child to each parent
1. This is personal dynamic, you describe to the best of your ability. This is where the discussion
of whom has bonded the most gets to be huge.
xiv. Expert Testimony
1. Dueling psychologist. Usually child psychologist. Is one side has one the other should have
one – just to be on the safe side. Testimony of the child: child of sufficient age and maturity
can give their opinion on who they want to live with. At no age is the child’s testimony
dispositive? If they understand the nature of the oath and the affairs, a court may allow
testimony. There is no certain age. If the judge does not want the child to testify you can ask
the judge to qualify the child or you can say “your honor if you do not allow the child to
testify than I would like an offer of proof.”
2. Ways to testify:
a. Can testify in judge’s chambers (on camera). Only the judge being there. If you
object to this, it can’t be done; OR
b. In the alternative is on camera but the attorneys are present and can cross exam; OR
c. In open court
II. Guardian Ad Litem
a. Attorney appointed to investigate on the children’s behalf. If the court does not appoint one you can request
one for the children. They will report and give their opinion recommending who gets custody. Parties pay for
the guardian ad litem.

Abuse and Neglect – Procedures for Abuse and Neglect ---Report, Screen, Investigate

 Child abuse and neglect laws balance parental rights with the state’s duty to protect children. Parents
have a Fourteenth Amendment due process right to direct their children’s upbringing, as established in
cases like Meyer v. Nebraska and Pierce v. Society of Sisters, and reaffirmed in Troxel v. Granville. This
right, described as more precious than property rights, is entitled to deference and protection unless a
compelling state interest justifies intervention, as seen in Santosky v. Kramer and Lassiter v. Department
of Social Services. Privacy doctrines also support family decision-making integrity.
 However, parental rights are not absolute. Prince v. Massachusetts introduced a balancing test for
resolving parent-state disputes over child welfare. Stanley v. Illinois, 405 U.S. 645 (1972), specifically
recognized “[t]he state’s right—indeed, duty—to protect minor children through a judicial determination
of their interests in a neglect proceeding.” Courts recognize that the state's parent patriae authority to
protect children overrides parents' constitutional or statutory rights when there is sufficiently serious
danger to the child.
 The parens patriae doctrine is a legal principle allowing the state to act as a guardian for individuals
who are unable to care for themselves, such as minors, mentally ill individuals, or the incapacitated. It
empowers the government to intervene to protect their welfare and best interests.
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 Reasonably anticipated harm, as well as actual harm, can be a basis for intervention because the state
does not have to wait until the child is actually injured. In an appropriate case, the state may remove a
child from the abusive or neglectful parents’ custody, temporarily or permanently. In some instances, if
one child in a family is removed for abuse or neglect, the child’s siblings may also be removed as
preemptive protection.
 Historically, child abuse protections began with cases like Mary Ellen Wilson in New York, sparking the
establishment of child welfare organizations, laws like the 1974 Child Abuse Prevention and Treatment
Act (CAPTA), and mandatory reporting requirements. Today, child welfare systems address abuse
through investigative procedures, emergency protection orders, adjudicatory trials, and hearings for
permanency or parental rights termination.
 The Child Abuse Prevention and Treatment Act (CAPTA), (42 U.S.C.A. §5106g), as amended by the
Keeping Children and Families Safe Act of 2003, defines child abuse and neglect as, at a minimum:
o Any recent act or failure to act on the part of a parent or caretaker which results in death, serious
physical or emotional harm, sexual abuse or exploitation; or an act or failure to act, which
presents an imminent risk of serious harm.

 Cases that involve abuse and neglect

o Alabama cases involve “dependency” cases (Dependency is an Alabama only term)
 MUST DETERMINE IF STATE HAS SUFFICIENT REASON TO INTERVENE
 Heard in Juvenile court
 Courts in Montgomery County are managed by circuit judges
o Hear custody issues
o Hear abuse cases
 Purpose of a dependency hearing is to protect the child. Not punish the parent.
o How Abuse case starts:
 Person makes an allegation OR receive from mandatory reporters OR anonymous reports
 DHR decides if there is enough information to open a file.
 If enough information, Investigation starts (experienced Social Worker)
 IF enough proof, then makes a finding it’s indicated that abuse occurred
o Safety plan with mom and dad – Open file but don’t take it to court immediately (SEE
SCREEN OUT AND SCREEN IN BELOW)
 No proof
o No further action
 Enough proof plus abuse and sexual misconduct
o The safety plan is not considered to be enough, go straight to court and file an emergency
pick-up order
 The judge determines if the child should be removed from the home.
o 1974 CAPTA (TO SEASON ARGUMENT IF NEEDED)
 Child Abuse Prevention and treatment Act – Requirements and Government Funding
 Develop support programs and services to
o Intake to
 Investigate complaints
 Screen what should be investigated
o Report
o Keep Records
 24 hour hotline
 Allowed reports to be made by persons other than required reporters
 Required guardian ad litem

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 State systems for maltreatment (Civil Child Protection)
o Child welfare court process (page 322)
 Court order
 Emergency protection order
 Preliminary protective emergency removal or shelter hearing
 Fact finding hearing or adjudicatory trial
 Dispositional hearing
 Review hearings
 Permanency hearing
 Termination of parental rights hearing
o Reporting
 Small percentage end up in court
 Majority of reports are investigated
 Referral may be screened in or out
 Screen out
o Does not concern abuse or neglect
o Does not contain enough information
o Response is more appropriate by another agency
o Child responsibility of another jurisdiction
o Children are over 18 years
 Alabama is a child over 19
 Investigate
o Must investigate within a specified time and maintain records
 Determine if mistreated or at risk of maltreatment
 Substantiated (indicated- word used in Alabama in lieu of
substantiated)
o Determine what services are needed or should be provided
 Unsubstantiated (not indicated- word used in Alabama in lieu of
unsubstantiated): An investigation that concludes insufficient evidence
o Humphries v. County of Los Angeles
 Accused of child abuse by unruly child
 Found innocent but name remained on registry
 The teacher needed their name removed because the accused is factually
innocent.
 California said no
 9th Circuit said Yes!
o Reporters may have some immunity from prosecution if reports are made in good faith
 DRUGS
o In Alabama
 The usage must directly impact the health and well-being of a child
 Limits on Intervention
 Grounds for intervention
o Court is determining
 What degree of actual or threatened harm the state must show before it may
intervene and the level of assistance the state must provie to help the family
resolve the risk before removing the child.
 In Re Juvenile
 Case Shows: What a state must show to adjudicate child in light of
constitutional objections
 Limits on searches and inspections
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 o Entering a home during a child abuse investigation constitutes a Fourth Amendment
search.
 Because search may lead to criminal protection of the abusive parent.
 Probable cause is needed
 Parent declines search
 State may intervene but must balance reasonableness and compelling
interest of the child to protect the child from abuse
o The standard for emergency removal varies
 Some courts require a reasonable and articulate suspicion that the child has been
abused or is in imminent peril of abuse
o Self Incrimination
 The Fifth Amendment against compulsory self-incrimination may sometimes
hamper abuse and neglect investigations by permitting the alleged perpetrator to
remain silent.

 Patterns of Abuse and Neglect

 Neglect
o neglect finding may be predicated on the parents’ failure to provide adequate food,
shelter, medical care, or clothing, but only if the parents are financially able to provide
these necessities or have been offered appropriate state assistance
 in Re S.T.
 (1) skin manifestations in infants, such as severe and persistent diaper rash or
other skin breakdown secondary to poor hygiene;
 (2) sunburn, frostbite or ongoing diseases such as recurrent respiratory
infections, which may indicate inadequate clothing or shelter;
 (3) malnourishment;
 (4) physical growth and mental developmental lags, which may be due to
inadequate diet;
 (5) inadequate medical care, such as failure to obtain necessary drugs for the
child and sometimes failure to give children prescribed drugs, or failure to get
necessary immunizations;
 (6) physical appearance indicating prenatal neglect from 120 fetal alcohol
syndrome or physical deformity from drug use; and
 (7) gaps in education.
 Psychological maltreatment
o Psychological maltreatment may be coupled with physical neglect or abuse or may occur
separately. State statutes may not distinguish among emotional neglect, emotional abuse,
and the emotional harm caused by physical neglect or abuse. An emotional neglect case
also may be brought under more general statutory language such as “an environment
injurious to the child’s welfare.” In some jurisdictions, a threat of emotional harm without
a showing of actual harm is sufficient.
 emotional harm from a pattern of behavior which contributes to impaired
emotional functioning of the child which may be demonstrated by a substantial
and observable effect in the child’s behavior, emotional response, or cognition
that is not within the normal range for the child’s age and stage of development,
with due regard to the child’s culture”
o Failure to thrive
 Failure to thrive, or growth deficiency, is a condition in which the child’s weight
and linear growth have fallen below standard measures or have significantly
dropped without a physical cause. Children not treated can suffer permanent

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 physical, cognitive and behavioral problems. Early studies identified maternal
deprivation and neglect as causes of failure to thrive.
 Established by expert testimony
o Why parents treat children badly
 IQ
 Prior Abuse or Product of Abuse
 Psychiatric Problems
 Abuse
o Battered child syndrome
 Continuous prolonged physical abuse in a non-accidental manner
o Shaken baby
 Brain injury inflicted by a person or a caretaker who severely shakes an infant,
resulting in whiplash-type injuries
o The target child
 Some parents single out one child for abuse while leaving other children in the
household unharmed.
 Corporal Punishment
o Factors
 Whether restraint or correction was rendered necessary
 Whether reasonable in manner and moderate in degree
 Sexual abuse
o Often no physical evidence and some children are often not willing to testify against
abuser
 Sexual abuse occurs when a child is engaged in sexual activities that he or she
cannot comprehend, is developmentally impaired and cannot give consent,
and/or violate the law or social taboos of society.
 Oral or genital or anal
 Voyeurism
 Child pornography
o Failure to protect
 A parent who fails to intervene to protect a child (or who takes insufficient
protective action) can be adjudicated neglectful, even though the parent was not
the actual abuser. The child may be removed from the home, and the court may
even terminate parental rights when the abuse is severe.
 Where a battered woman, herself a victim, does not separate herself and
the children from the batterer, she may be held responsible for failing to
protect the children.
 Newborns and positive toxicology
o A report of positive toxicology for a controlled substance does not generally in and of
itself prove that a child has been physically, mentally, or emotionally impaired or is in
imminent danger of being impaired.
 Some districts treat positive toxicology as abuse and neglect
 Some jurisdictions require additional circumstances to find neglect
 In Alabama, there has to be a negative effect on the child
 Punitive Criminal Sanctions are not in the best interest of the addicted mother or
the fetus
 Remember Search and Seizure in Crim PRO- such as consent and
incrimination when done to penalize.
 Duty to Investigate - No right under 14th DUE process for state to protect life, liberty and property from
private actor. Duties owed in limited circumstances to prisoners and involuntarily committed mental
patients in State care. EXAMPLE:

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  Deshaney v. Winnebago
o Claims failure of Social Workers to remove them from the home where the father beat
him violated the Due process Clause of the 14th Amendment. – Action brought by Mother
on behalf of Joshua.
o Facts:
 awarded custody in divorce.
 2nd wife reports child abuse in Jan 1982 at the time of 2nd divorce. Father was
interviewed and denied…no further investigation.
 In Jan 83’ admitted to the hospital with bruises and abrasions- suspected of
child abuse and notified DSS- and ordered to temporary custody of the hospital.
Three days later, a team of doctors, lawyers, hospital personnel, and DSS
caseworkers decided that there was insufficient evidence to retain custody.
Recommended several measures: enroll in preschool, father get counseling, and
father’s girlfriend to move out.
 Case dismissed at recommendation of child protection team
 Month later, another report from emergency room
 No need for further action per DSS
 DSS makes regular visits to home for 6 months
 Not enrolled in school
 Suspicious bruises on head
 Girlfriend still there
 RECORDED incidents…suspected abuse but did nothing about it.
 Nov 1983 in hospital again- suspected child abuse
 Case worker visited home 2 additional times and told Joshua to ill to see her…
took no action
 March 1984 – Joshua is 4 and beat into coma
 Emergency brain surgery
o Series of hemorrhages caused by traumatic injuries to head
over a long period of time.
 Suffered Perm brain damage
 Father convicted of child abuse
o Court: STATE NOT REQUIRED TO PROTECT LIFE, LIBERTY, and PROPERTY from
private actors. 14th Amendment FORBIDS states itself from depriving life, liberty, and
property.
 NO affirmative right to government aid even if the aid is necessary to secure
life, liberty, or property interests.
 Reasonable Efforts
 Adoption Assistance and Child Welfare Act of 1980
o Work to keep children in their homes and, when possible and when removal was
necessary, require states to move aggressively to reunite the family.
 Funding contingency on reasonable efforts to prevent removals and achieve
reunification
 Reasonable efforts
o Prior to placement in Foster Care to prevent or eliminate the
need for removal of the child from the home and make it
possible for a child to safely return home.
o AMENDED: RETURN HOME MUST BE SAFE
 Adoption and Safe Families act of 1997 – REASONABLE EFFORTS REDEFINED:
o Why: States were keeping kids in foster care too long while trying to rehabilitate the
parent
 Reasonable efforts: Shall not be required if the jurisdiction has determined

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  The Parent has Subjected child to aggravated circumstances such as
torture, abandonment, chronic abuse, or sexual abuse. OR The parent
has committed murder, manslaughter, attempted to
murder/manslaughter, or felony assault of another child of the parent.
OR parental rights of the parent to a sibling have been terminated.

FOSTER CARE
1. In the 19th century, the focus was on children of poor families, with debates over whether governmental
control was for the children’s best interest or a means of controlling poverty. Children were placed in
institutions like asylums, orphanages, and reformatories, or sent to families for labor or care. The goal
was rehabilitation and to provide home-like care, with foster care emerging as a non-institutional
alternative to adoption.
2. From 1854 to 1929, Charles Loring Brace and the New York Children's Aid Society relocated a quarter
of a million destitute children to rural homes in the Midwest, known as the "Orphan Trains," though
many were not actual orphans, but children of single parents, sick, or poor families. These children were
often viewed as property, with few legal rights, and while some found loving homes, others were abused
or exploited for labor.
3. By the early 20th century, social services began to evolve, with programs like mothers' pensions and the
Social Security Act of 1935 supporting low-income families. In the 1960s and 1970s, foster care became
more formalized, with federal funds available for placement, even if abuse or neglect was suspected.
4. In 1980, Congress passed the Adoption Assistance and Child Welfare Act, shifting the focus from child
removal to family preservation, aiming to keep children in their homes. The federal government
intervened in the state-operated child welfare system, requiring "reasonable efforts" toward
reunification.
5. However, the act failed to reduce the number of children in foster care because funding for prevention
and other in-home services was capped while funds for eligible foster care children were uncapped.
6. In response, the 1997 Adoption and Safe Families Act pushed for permanency, setting a timeline for
permanency hearings within 12 months of placement and imposing strict deadlines for terminating
parental rights.
o In the Interest of T.G.
 Court prioritized permanency
 Mother does not want rights terminated
 She believes its not in the children’s best interest
 Challenges for youth in Foster Care
o 30-80% of children in foster care experience emotional problems
 The Courts Role in Permanency Planning
o Multiple placements are harmful for children
o Loss of confidence in the system
 Congress and legislatures gave Court role
 Permanency planning
 Courts determine if workers made reasonable efforts to prevent placement
 Conduct periodic hearings
 Sequence of hearings
o Shelter Care
 Initial hearing
o Adjudication
 Trial to determine dependency
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  Has to find the child dependent to have jurisdiction over child
o Neither parent is willing or able to care for child
o Disposition
 Trial for custody
o Review (pre-permanency planning)
 Judicial review and non-judicial review
 At least every three months in a few states
 At least every six months in some states
o Review (permanency hearing)
 Decide new goals for child
 Decide if new goal is adoption
 Return home continues to be unsafe
 Order agency to petition for termination of parental rights

 Foster Childs Right to A Family – No Constitutional RIGHT TO A FAMILY

o Foster parents face additional hurdles
 Must demonstrate that their relationship is sufficiently similar to a parent-child relationship to deserve
constitutional protections
o Smith v. OFFER
 Challenge to the procedures governing removal. Parties assert the NY foster care removal procedures
violate due process rights and the Equal protection clause of the Fourteenth Amendment
 NOT SUBSTANTIVE DUE PROCESS
 PROCEDURAL DUE PROCESS
 Natural mothers intervened with appointed independent counsel
 Footnote describes mother who voluntarily placed child in foster care and the 3-year struggle for
his return
 Foster care in NY is voluntary or involuntary
 Voluntary (physical, mental, economic crisis)
o Sign over child in crisis
o Return in 20 days if no specific date identified
o Can be in institutional care or with family
 Foster parents are licensed by state and compensated
 Contract and either party can terminate
o Parents, state, foster parent share unclear complex roles with respect to child
 Involuntary
o Court order for abuse or neglect of natural parent or delinquent minor in need of
supervision
 State can remove at its discretion (PROCEDURES)
 Return to natural home
 Move to another facility or foster home
 Gives 10 day notice
 Foster can object and request a conference
o Can appear with counsel and submit reasons why child should stay
o Decision made in writing within 5 days
 If removed, may appeal to DSS for hearing
 Hearing subject to judiciary review
 REMOVAL is not stayed pending hearing
 Another removal safeguard
 Family court has jurisdiction to review for placements that are 18
months or longer

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  Argument – MUST HAVE AN INTEREST TO HAVE PROCEDUREAL DUE PROCESS.
ARGUES HAS A LIBERTY
o Right to family Privacy as per Prince v. Massachusetts (Biological family – custody, care,
and nurture first reside with parents)—free from state interference
 Uh…no—foster care parents: WHY:
 You are contracted with the state to provide care
o Ok..so, You develop emotional ties
 You get the most LIMITED constitutional liberty
 Even with the limited liberty
 Does not trump the Constitutionally recognized liberty interest of the
biological family
 VERY NARROW….
 State pre-removal is not constitutionally defective
 Argument – HAS LIBERTY…now what process is needed?
o Procedural due process with limited constitutional liberty
 Before deprived of protected interest, must be afforded
 Test (Mathews v. Eldridge)
 Private interest that will be affected by the official action
 Risk of an erroneous deprivation of such interest through the
procedures used and
Provable value, if any, of additional or substitute procedural safeguards
 Government interest, including the function involved and the fiscal and
administrative burdens that additional or substitute procedural
requirements entail
 Court finds that NY procedures are constitutionally adequate
 Pre and post hearing
 § 392 hearing is available in and outside of NY
 CONCURRING JUSTICES
 THIS IS WHOLLY A RELATIONSHIP CREATED BY THE STATE
 TEMPORARY
 NO NEED TO DECIDE A LIBERTY INTEREST- JUST SAY NO—
NOT AN INTEREST UNDER DUE PROCESS
o SIBLINGS- NO CONSTITUTIONAL PROTECTED RIGHTS WITH RESPECT TO PLACEMENT OF OTHER
SIBLINGS
 In Re Interest of Meridian
 Child and parent have a substantive right to parent-child relationship
o Companionship, care, custody, and management of child and reciprocal right to be raised
and nurtured by biological or adoptive parent
 HERE- THE CHILD RELATIONSHIP IS RELINQUISHED-
o NO ONE IN CASE HAS STANDING
 Children right to Services and Protection from Harm
o MD v. Abbott (page 508)
 Children filed § 1983 against state
 State system exposes them to serious risk of abuse, neglect, harm to physical and psychological
well-being
 Court
 Substantive Due Process Right
o DeShaney v. Winnebago
 A special relationship exists between the State and children when the State
“removes them from their natural home and places them under state
supervision.”

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  Foster Care children are entitled to protection from physical abuse and
violations of bodily integrity and psychological abuse
 Deliberate Indifference
o Demonstrate that the State’s conduct shocks the conscience
 Acted or failed to act despite its knowledge of substantial risk of serious harms.
 Causation
o Identify with particularity the policies or practices they allege cause the constitutional
violation and demonstrate a causal link.
 Types of Placements (multiple choice type on exam)
o Alabama
 Custody is for children
 Guardianship is for adults
o 51% of children exiting care were reunited
o 10% went to live with other relatives
o Foster Placements with Non-Relatives
 The most common form of foster care
 Foster care parents are:
o licensed and supervised by the state,
o paid monthly stipends for their care and
o may be de-licensed for misconduct
o Provide care until:
 the child can be returned to biological parents home;
 free for adoption;
 Ages out of adoption
o Kinship placement
 Under federal foster care (35% of all foster care)
 States shall consider giving preference to an adult relative over a non-related caregiver, provided
the relative meets all state child protection standards. 42 USC § 671 (a)(19)(2019).
 Not mandatory to place child in the home
 State statute determines who is defined as a relative
 May not define a second cousin as a relative
 Some states expand it to those who have significant relationships
 DHR is supposed to ask about any known relatives
 Goal is to keep the family intact
 DHR will complete a Child Abuse Report on person
 Child can be adjudicated as Dependent in Alabama
 Means adjudicated as abused
 Alabama uses Dependent
 Alabama (Agreements outside of DHR)
 HAS DELEGATION of parental authority documentation
o Temporary time period to provide care for a child
o One Year
o DHR is not involved
o Agreement between parent and caregiver
 Consequences
 Kin can interfere with parental bond by keeping the child from the parent
 May not provide enough supervision because too close to parent
o Does not provide adequate protection and supervision
 Complications of licensure and payment
o Could be that the children don’t receive the necessary services
o Could be that parents don’t receive the necessary services
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o Racial and Ethnic Matching
 Not considered unless its ICWA (Indian Child Welfare Act)
o Religious Matching
 States can consider the preference but is not bound to march to these preferences
 So long as the state makes reasonable efforts to assure that the religious needs of the children are
met. Wilder v. Bernstein
o Institutional Care
 Placement and Poverty
 Late 1700-early 1800s
o Poor children were taken from families and sent out as apprentices
 OR
o Institutionalized
 Almshouses
o Assistance in poor’s home OR
o Boarding out in homes of prosperous members of the community
 Resembled an auction
 Lowest bidder gets child with care paid from local government funds.
o Thought to make poor accustomed to getting paid and no longer look for work
 Institutions were needed
 Poverty is a result of poor morals
 Lack of thrift and industry
 Overindulgence in alcohol
 Unwilling to work
 NO REASON to keep a poor family in tact
o Almshouses failed
 Ill arranged, warmed and ventilated
 Conscience is weakened
 Stagnant atmosphere
 NOT focused on strengthening the family
 Asylums
o To provide food, clothing, housing, religious instructions, proper food, clothing, housing,
religious instructions
o DID not prepare kids for real-life
o Helped start the work on Children’s Aid SOcieity
 Place children between 2-10 with families
o FOCUS per White House Conference
 enable mothers to keep their children.
 Congress adopted Social Security in 1935
 Provide support for single-parent families
 Expanded to Medicaid and Food Stamps and HeadStart
 Types of Facilities
o Court decides
 If the state’s proposed placement is the least restrictive (most family like)
 most appropriate setting available in close proximity to the parent’s home
 consistent with the child’s best interests and special needs

 Balancing factors such as the emotional ties and relationships between

the child and household members/caregivers
 Capacity of parents to provide a safe home and adequate food
 Mental and physical health needs of the child
 Mental and physical health of parents

Page 14 of 34
  Presence of domestic violence in the home
Residential treatment facilities
o
 For children who have been neglected,
 have negative and disruptive behavior patterns
 have been trouble with the law,
 do not respond to less restrictive form of treatment
 need considerable structure in their lives in order to further progress
 PERMANENCY PLANNING FOR OLDER YOUTH
 May be hard to place
 Independent living facilities
o Classes and stipends
 How to budget
 Mail a letter
 Keep house
 Alabama
o Child can stay in care until 21
o Hope Scholarship for College
 State pays
 Must stay in care in some sort of program

Termination of Parental Rights – “few consequences of judicial action are so grave as the severance of natural family ties.”

 Children have right to counsel in TPR (page 27)

 Burden of proof is on the party seeking to involuntarily terminate parental rights
 Why: Termination of parental rights is to free the child for adoption
 COUNSEL FOR PARENTS IN TPR: The Fourteenth Amendment due process clause does not require the appointment of
counsel for indigent parents in all termination proceedings. Lassister v. Dept. of Social Services
o In the state of Alabama, parents are appointed counsel
o Juvenile court may determine whether to appoint counsel on a case by case basis
o Uses Matthews v. Eldridge Balancing test
 Private interests at stake
 Important interest Prince v. Mass
 No right to counsel in the absence of at least a potential deprivation of a PHYSICAL liberty
 Government’s interest
 Risk that the procedures used will lead to erroneous decisions
 Parents have the right to appeal an order terminating parental rights. M.L.B. v. S.L.J
 Incarceration alone is insufficient to terminate parental rights
o HOWEVER, Statutory reasons outlined in Ala. Code 12-15-319 are grounds
o Some states look to length of sentence, age of child (developmental, emotional, and welfare of child)
 Ala. Code 12-15-319 Grounds for termination of parental rights (PRINT)

o State has deemed parent unfit- Alabama has grounds for termination in Ala Code 12-15-
319
 Neglect/Abandonment
 Abuse
 Incapacity
 Conviction of and imprisonment for felony
 Manslaughter/Murder of another child of the parent (or aiding or abetting the
murder)
 Parental rights to a sibling have been terminated
 Parent convicted of rape
 Failure to provide support
Page 15 of 34
  Failure to maintain constant contact or communication with child or maintain
regular visitation as per plan with DHR
 Involuntary termination by state
o Rules (TWO PRONGS)
 Clear and convincing evidence for statutory termination
 In Alabama, we can now weigh if the child has sufficient ties and connections to the foster parent
to terminate parental rights.
 Preponderance of the evidence that severance is in the children’s best issue
 Child will benefit from severance
 Child will be harmed if severance is denied
 Alabama Cases
o W.C.M- Rule in Alabama – One parent seeking to terminate the rights of another
 (MOM had no court order for custody or child support)!!!
 Mom wants rights terminated because of father’s sporadic visits with the child.
 Visits confuse and upset child.
 COURT SAYS NOT ENOUGH!
 Dependency determination is not required
 “[W]hen one parent seeks to terminate the other parent's parental rights, a ‘finding of dependency’
is not required, and the trial court should determine whether the petitioner has met the statutory
burden of proof and whether that termination is in the child's best interest, in light of the
surrounding circumstances.
o first, the court must find that there are grounds for the termination of parental rights,
including, but not limited to, those specifically set forth in [Ala. Code 1975, § 12-15-
319(a)].
 Supported by clear and convincing evidence

 Second, after the court has found that there exists grounds to order the termination of parental
rights, the court must inquire as to whether all viable alternatives to a termination of parental
rights have been considered.
o Ex parte Madison Cnty – Foster parent terminate parental rights
 Foster parents have taken over! Intervened to have parental rights terminated and filed motion to have DHR
relieved of making reasonable efforts to rehab mother and father. –no one opposes motion???
 Foster family also objected to first cousin’s motion to intervene for placement because has a sibling. SAYS
NOT FAMILY. WON.
 DHR files motion to dismiss and will continue reunification and also motion to strike foster parents as
intervenors. DENIED…Trial commenced…motions to dismiss parental termination and for continuance
denied. DHR was allowed to withdraw petition to terminate parental rights. HOWEVER, foster parents
were allowed to continue to litigate the termination over DHR’s objection
 Court entered order terminating parental rights and child custody was awarded to Kids Love and
child remained in foster parent home because DHR withdrew

Social Class, Ethnic and Racial Bias; Finding a cure

 Racial bias in Foster Care – CULTURAL COMPETENCE

o African American live in poverty or are incarcerated more and therefore more represented in foster care system
 OR
o Embedded racism in institutions create the disparity and this is why they represent more in foster care system
o Effectively and respectfully respond to people of all cultures, languages, classes, races, ethnic backgrounds,
religions in a manner that recognizes and, affirms, and values the worth of individuals, families, and communities
and preserves and protects the dignity of each.
o Cultural competence needed at all stages:
 Reporting

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  TRAIN mandatory reports to distinguish neglect from poverty
 Investigation
 Service delivery
 Removal
 Placement
o Appoint culturally competent lawyers quickly whenever removal is suspected
o Prioritize family care through in-home service programs over foster care
 Community Foster Care: Collective impact
 Family more involved in the foster care system
 Equip with tools to care for own children
o AFRICAN AMERICANS enter foster care system in the 1950s
 The Indian Child Welfare Act
o US Bureau of Indian Affairs historically facilitated removal of large numbers of Indian children from their homes
for placement with non-Indian parents.
o ICWA of 1978, 25 USC § 1901
 CONGRESS found an alarmingly high percent of Indian family being broken up for unwarranted reasons
and children placed in nontribal public and private agencies
 Preserves cultural identity
 Limits removal of Native American children from their tribes
 Protect the best interest of Indian Children
 Promote stability and security of Indian tribes and families by the establishment of minimum
Federal standards for removal and placement in homes unique to indican culture
 Provide assistance to Indian tribes in operation of child and family programs
 Indian child
 Any unmarried person under 18
o A member of an Indian tribe
 OR
o Eligible for membership and the biological child of tribe member
 Preference to
 child’s extended family
 other member of tribe
 other Indian family
 Factors:
 Must show remedial efforts before involuntary termination
 Serious harm emotional or physical harm will result from the parent's continued custody
o Evidence standard: Reasonable doubt
 Including testimony of qualified expert witness
 Applies in ALL proceedings
 Termination
 Preadoptive
 adoptiopn
o Adoptive Couple v. Baby Girl
 Impregnated mother while in military
 Wanted marriage
 Mother did not
 Mother asked if he would relinquish parental rights
 Thought was relinquishing parental rights to the MOTHER
 Found out it was to be for child’s adoption
 Brought case to stop adoption under ICWA
 Court need not establish if Brown was a parent under ICWA, even if he was
 Had not established parental rights under S.C. State law

Page 17 of 34
 
Never had custody

Abandoned before birth

ICWA was established for UNWARRANTED removal of Indian children from Indian families due
to cultural insensitivities and bias
 Narrowed ACT to “existing Indian family”
 REMOVING CHILDREN FROM HOME: Religious Practices and Bias sets standards
o In re Texas Department of Family Service
 Failed to investigate
 Received an anonymous tip
 Warrantless entry
 Seized all children instead of just one child where abuse was suspected
 Ambiguous law (Section 1983)
 May not seize absent warrant, parental consent, or exigent circumstances
o Exigent Circumstances: Reasonable cause that the child is in imminent danger of
physical or sexual abuse at the time they are seized from their home.
 Child welfare workers must weigh the chance of abuse to each child in the household before
removing the child

Representing Children (will be on the test)

 Framework for analyzing role of child’s lawyer

o In Domestic Relations (In Alabama)
 Parents are parties to that action (divorce, custody, etc).
 Child is not entitled to an advocate (guardian ad litem)
o Court has discretion to appoint
 Parents pay not the court system
o In Juvenile Cases (In Alabama)
 Children are still not parties, but because it’s dependency
 Child gets guardian ad litem
o Guardian appointed and paid by court system
o In Re Gault
 Children in criminal proceedings have the right to the same representation as adults
 Constitutional failure to overlook children
o Minors have procedural and substantive rights
 The effectiveness of the law and its impact on children's families depends on how policymakers promote
and implement it.
o All children should have an advocate when their interests are at issue in a case
 Access to
 primary knowledgeable person
o who guides child through court and investigative process,
 protects legal rights,
 identifies other services for the child,
 look out for the child's emotional well-being and best interests
o When else a child may need a guardian to protect their interests
 Mental health proceedings
 Paternity actions
 Emancipation matters
 Parental termination
 Adoptions
 Juvenile delinquency
 Domestic violence
o Trained attorneys are critical, BUT
Page 18 of 34
  They Often have the least experience
 The Lowest status
 Receive the lowest compensation
 There are inadequate resources allocated to the representation of children
 There is rapid turnover because some regard it as a stepping stone
 Low-quality work
o Handout From Class 9/26/2025
 QIC Best Practice Model
 Listen
o Enter Child’s world—Talk to them
 Relationship building (foundation for all other services)
o Meet the child where they are and strive to understand how the child views
their situation. Most children regress when exposed to trauma or stressful
situations and may blame themselves for family problems. Enter the child’s
world by:
o Build trust and establish rapport
 Ask where they want to talk
 Demonstrate to a child that you are willing to take time to listen
 Acknowledge the child’s feelings
 Avoid Judgment
 Don’t impose your opinion or draw conclusions
 Keep promises
 Never make promises that you cannot keep
o Follow through
o Be honest
o Engage without being invasive
o Be patient
o Make eye contact
 Be aware of your facial expressions
o Allow the child time to respond
 Give the child your undivided attention
o PERSONAL SPACE is important
 Establish boundaries
o Be proactive in attempt to connect with child with regular visits
 Keep the first meeting short
 Break up conversations and time into smaller visits
 Why: May have shorter memories and unable to focus or
understand large amounts of information.
 Focus on one topic
 Keep responses simple, short, straightforward, and
concrete
 Questions to ask: think of other questions to ask:
 Tell me what happened last night?
 Ask about family members or others involved in case?
 What concerns do you have about going home?
 Explain Roles and Responsibilities
o Ensure the child understands the relationship
 Advocating for child’s best interest
 Example: If child is showing signs of trauma, advocate
for the child to be evaluated and coordinate your
interview strategies with a counselor
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  Explain what a lawyer is
 Speak on a level the child understands
 Explain your role
o Help get the child’s voice an active part of the
case
 You are their voice
 Explain that there is a lawyer for the state as well
 Explain who the judge is
 Children may not understand how a court order could
affect their lives
 Explain that the judge listens to all sides of the case and
will decide
o Do not impose your beliefs in place of the child’s best interest
 Child’s best interest standards from above

a. Judicial evaluation: Best Interest of the child standard

i. Balancing factors such as the emotional ties and
relationships between the child and household
members/caregivers
ii. Capacity of parents to provide a safe home and
adequate food
iii. Mental and physical health needs of the child
iv. Mental and physical health of parents
v. Presence of domestic violence in the home

o Assess Safety- A child is safe if there are no threats to which they are vulnerable or if
there protective capacities present to protect the child from the threats to which they are
vulnerable. Ask: Can you remove the danger and protect the child:
 Protect child without overacting
 Identify threats
o Specific and observable
o Risk is out of control and has immediate or imminent impact
o Will result in severe negative consequences to child’s well-
being
 Identify vulnerabilities
o Just because there is a threat, doesn’t mean there is a
vulnerability
 Assess age
 Lack of protective capacities
 EXAMPLE: Swimming pool is dangerous for toddler
but not so much for teen lifeguard.
 Protective capacities
o Things which help to counteract the risks?
 WHO OR WHAT can help in this situation to
minimize or eliminate?
 SAFETY is different than a case plan!!!
 Counsel – Rules of responsibility require you to COUNSEL
o Actively Evaluate Needs
 Stress problem-solving
 Understand what is necessary to the client’s well-being- psychological, medical,
home studies, criminal history, education records.
Page 20 of 34
  Read DHR records and case notes!
 Obtain the necessary releases or signed consent forms
 Understand what the court must legally consider
o Advance Case Planning
 Case planning should be
o Specific
o Measurable
o Achievable
o Relevant
o Time Specific
 Things to consider
o Consult parents and the client
 Interview friendly witnesses
o Goals
 Change behaviors, obtain commitments
 Treatment plans
o Make sure it addresses any threats, vulnerabilities, and
protective capacities from safety plan
o Target those issues and identify how to reduce or influence
 Discuss and Identify – Know what’s available in your area
o Counselors
o Levels of foster care
o Family resources
o Services available through schools
o Health and Mental Clinics
o Recreational opportunities
 Advocate
o Develop Case Theory (Big Picture)
 Address the
 Facts of the case
o Identify child’s needs
o Parent’s Needs
o Goals
 Longterm
 Shorterm
 The law
 The result you think best
 Example:
 This is a mother who is working the third shift and cannot correctly
supervise her children. Court should identify short-term caregivers or
assistance when mother unable to supervise.
 This is a mother with a chronic mental condition incapable of caring for
child. The court should identify alternative long-term caregivers and
treatment plans for the mother.
o Advocate effectively
 Long-term goal is a permanency goal
 Each need identified while developing the case plan should be matched to the
advocacy corollary
 Least adversarial

Page 21 of 34
 o Example: Child needs medical care: What is the least
adversarial and quickest method to meet this need?
 Be prepared to utilize more adversarial methods, if necessary to address
need or realize the goal
o Someone one in case plan not following thru such as a case
worker
 Address it
 Change course if needed
 Follow up and FOLLOW THRU

Child’s Right to Sue

 Kingsley v. Kingsley
o Capacity to sue as an unemancipated minor
 Historically unemancipated minors do not have the legal capacity to initial legal proceedings in their own
names
 Procedural impediment
o Does not unduly burden a child's fundamental liberty to be free of physical and emotional
violence at the hands of a caretaker
 No longer a procedural impediment
o If other petitions for parental termination are filed on child’s behalf
 Know page 252- Model Rules 1.14 (The child is the client)
o In making decisions about representation, am I seeing the case, as much as I can, from the client’s point of view,
rather than from an adults point of view
o Does the child understand as much as I can explain about what’s happening in the case?
o If my client was an adult, would I be taking the same actions, making the same decisions and treating them the same
way?
o If I decide to treat my client differently from the way I would treat an adult in the same situation, in what ways will
my client concretely benefit from that deviation? Is that benefit one which I can explain to my client?
o Is it possible that I am making decisions in the case for the gratification of adults in the case, and not for the child?
o Is it possible that I am making decisions in the case for my own gratification, and not for that of my client?
o Does the representation, seen as a whole, reflect what is unique and idiosyncratically characteristic of this child?

Child as client

 When children are able to do so, they should be allowed to direct representation just as any other client would unless the
child has diminished capacity.
o What a lawyer may do depends on the rights of the child
 REMEMBER A CHILD’S RIGHTS FROM ABOVE DEPENDING ON THE SITUATION YOURE
PRESENTED WITH!—you may have limits!
 If a lawyer is aware the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or
rectify the guardian’s misconduct
 Child can bring a damage action against guardian for breach of duty, however, if the guardian is expected to assist the
tribunal in determining the reasonableness of a proposed settlement, the guardian may be entitled to absolute immunity.

Counsel’s role in abuse, neglect and adoption cases

 REMEMBER: Alabama calls it dependency- no transcript in dependency actions

 Child’s right to counsel in TPR case (CHILD HAS A RIGHT TO COUNSEL IN TPR PROCEEDINGS)
o Children have a fundamental liberty interest at stake in deprivation TPR proceedings
 Own Safety
 Health
 Well-being

Page 22 of 34
  Interest in maintaining family integrity
 Having a relationship with biological parents
o Those interests are still at stake after the child is placed in state custody, INTERESTS:
 Safe living conditions
 Services necessary to protect from physical, emotional, and psychological harm
o Due process
 Matthews v. Eldridge
 Private interest will be affected by the official action
 Risk or erroneous deprivation of such interest through procedure used and probable value
substitute procedural safeguards
 Government interest
o Function involved
o Fiscal and administrative burdens the additional or substitute procedural requirements
would entail

Counsel’s role in delinquency and status offense cases

 Gideon v. Wainwright
o Sixth Amendment right to Counsel Affirmed right to counsel in criminal cases with threat of imprisonment in state
and federal cases and for felony and misdemeanor cases
o In re Gault
 Juveniles in delinquency cases have the same right to counsel rooted in the Fourteenth Amendment Due
Process Clause
 Mut have notice
 Presence of counsel
 Cross-examination of a witness
 Protection from self-incrimination
 Narrow reading
 May not be at all critical stages
 Only at adjudication and where state custody is possible
 Indigent status
o Varies by jurisdiction
 Judge can do
 Public defender can do
 Clerk of court can do
o Look at
 Federal poverty guidelines
 Financial status of juvenile
 Financial status of juvenile parents
 Some jurisdictions
 Deemed not indigent if hired counsel
 Juvenile must pay for public defender
o Fees
 Can include
 GPS monitoring
 Placement
 Public defender fees
 Failure to pay can trigger
 Contempt
 Judgments
 License Suspension
 Civil actions to collect unpaid fees and costs

Page 23 of 34
  Fees can accrue even before adjudication
 Must still pay
 Fees are often not designed for
 Punishment
 Restitution
 Rehabilitation
 Fees often serve no purpose
o Types of indigent defense
 Public Defender Offices
 Employ staff attorneys who practice indigent defense
 Assigned counsel
 Court appointed at state list from private bar members
 Panel attorneys
 Private attorneys appointed at federal level
 Contract attorneys
 Private attorneys through:
o Bar associations
o Private firms
o Groups of attorneys
o Nonprofits corporation
 ACROSS SOME JURISDICTIONS: MANY JUVENILES ARE LEFT DEFENSELESS AND WITHOUT COUNSEL!!!
o Why:
 Waiver of counsel
 Juveniles don’t understand long-term consequences
 Excessive caseloads
 Inadequate compensation for juvenile lawyers
 Many jurisdictions cap hours billed to a specific case
 Lack of juvenile-specific training for lawyers
 Developmental differences between Juvenile and Adult Representation that support importance of juvenile-
specific counsel:
 Juveniles lack emotional self-regulation
 Increased susceptibility to external social influence
 Less able to properly assess long-term consequences
 Limited internal oversight of juvenile indigent defense practices
 Advocacy in the area
o Believe children should be afforded right to counsel at all “Critical states” of delinquency
 Pre adjudication
 Interrogations
 Identifications and lineups
 Responses to charges in court petition
 Detention hearings
 Adjudication and disposition hearings
 Hearings on issues of transferring jurisdiction so that the child is tried as an adult
 Probation and parole hearings
o Suggestions on how to solve
 Establish nonwaivable right to counsel
 Establish a state-funded system for juvenile indigent defense
 Assume all juveniles are indigent and appoint counsel
 STATUS OFFENSE
o Charges conduct that is sanctionable only because a minor commits
 Truancy

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  Running away from home
 Incorrigibility
o Several states grant alleged status offenders right to counsel
 In Re Gault- limited to DELINQUENCY proceedings…not status hearings
 Some Courts look to see if the status proceedings might have resulted in child’s placement in state
custody
 Majority view
 Advocate for child’s wishes rather than the best interest
o Depends on child’s age and ability
 Lacks ability
 Courts may appoint guardian ad litem as substitute decision-maker

Counsel Role in Appeals

 Trial lawyers have an obligation to tell the client they have a right to appeal
o Statutory
 OR
o State constitution
 Most offices don’t have a budget for an appeals lawyer
 No U.S. constitutional right to appeal in United States
 Alabama
o Guardian ad-litem may appeal
o Appeal from juvenile court goes to Circuit Court

Counsel’s Role in when Youth are tried as Adult

 IAC – Will be on the test. Look at page 297 - MEES

o Strickland v. Washington
 Defined under 6th and 14th amendment
 Requires habeas corpus relief if it is shown that counsels conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
result.
 Elements
o Demonstrate that counsels performance fell below an objective standard or
reasonableness
 Strong presumption counsel is effective
 Was investigation thorough (is there evidence it was not?)
o Demonstrate that he was actually prejudiced by counsel’s dereliction of duty
 Establish counsel’s deficient performance rendered the outcome of the
proceedings unreliable and fundamentally unfair
 Actual and substantial disadvantage, infecting entire trial with error of
constitutional dimensions
o Avoided conflicts? Was loyal?

Criminal Abuse and Neglect

 There are criminal statutes for child endangerment that operates against a parent, guardian, or other person supervision the
welfare of a child under 18 years of age
o Can operate against a minor as well
 Example
 15 year old abuses a 9 year old
o Some statutes allow for corporal punishment
 Disciplinary privilege

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  Distinguish between reasonable discipline and excessive discipline (abuse)
 Ogin
o Intentionally, knowingly, or recklessly cause bodily injury to another
 Bodily injury
 Impairment of physical condition or substantial pain
o Substantial pain inferred from offenses
o Parent has a duty to protect well-being of child
 Advance health of:
 Physical
 Mental
 Emotion
o Parents have right to raise child – Troxel
 BUT-Force fell outside the criminal statute
 Look at
o Degree of force used
o Age of child
o Physical and mental condition
 Other approaches other than criminal charges
o Parenting classes
o Emotional/mental counseling
 Children may bring tort cases against an abusive parent
 Parallel proceedings are permissible
o Civil and Criminal proceedings serve different purposes
o Does constitute in double jeopardy

Sex Abuse

 There is no profile of a child molester!

 Child is engaged in sexual activities that they cannot comprehend, for which they are underdeveloped or unprepared and
cannot consent.
o Violate genital
 Oral
 Anally
o Child pornography
o Voyeurism
 Basis for criminal intervention
o Lawrence v. Texas
 Two competent adults engage in private, consensual sexual activity, their conduct is an exercise of liberty
protected by the Due process clause of the Fourteenth Amendment
 DID NOT INVOLVE MINORS
 No RIGHT to privacy when the conduct involves minors!
o Statutory rape
 Strict liability
 Most states do not have a defense for mistake of age
 States that do only allow this defense for older underage children and not younger
 Gender neutral
 No force required!
 Incapable of consent
o Proving the case – Pit the word of child over that of respected adult
 Cases generally come down to credibility
 Often confused by dates and times

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  Hesitant or recants
 Memory deficits
 Led to contradict previous statements if not spoken to in age appropriate terms
 Children can be found incompetent to testify
 Cognitive or verbal abilities may be impaired
 How to prove
 Expert testimony
o Medical expert
 Physical evidence
 Scarring
 Tearing
 Psychological evidence
 Describe Behaviors commonly observed in Sexual Abuse Children:
o Describe the class of children who exhibit these types of
behaviors
o Lay out testimony that the particular child is exhibiting these
behaviors
 Nightmares
 Sleep disturbances
 Acting out
 Depression
o Not substantive evidence
 Used to rehabilitate child’s credibility
 Behavioral science testimony on whether a child was sexually abused
o Expert testifies and says child was abused in their opinion
 Behavioral science to rehabilitate child’s credibility following
impeachment
o Expert testifies and rebuts and says
 Children recant
 Children Delay in reporting
 Behavioral Science that child’s development is impeached
o Expert says child can determine what’s reality
 Example: Defense argues child cannot differentiate
fact from fantasy
 Behavioral science testimony that particular child or sex abused kids
generally tell the truth
 Behavioral science testimony describing profile of sexually abused
child
o New Hearsay exceptions
 May not allow defense to question evidence from a child who is physically
available
 SEE Maryland v. Craig - below

o Maryland v. Craig – Confront child witness

 Sixth Amendment (in Criminal prosecutions, enjoys the right to confront witnesses)
 Insures that the witness will give statements under oath
o Impress on witness the seriousness of the matter
o Guard against lying
 Forces witness to submit to cross
o Greatest legal engine for discovering the truth
 Permit jury to decide the defendant fate by observing the demeanor of witness

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 o Aids in assessing witness credibility
 There is no absolute right to confront the accuser under the Sixth Amendment
 Sixth Amendment reflects a preference for a face-to-face confrontation
 This may be satisfied absent
o Physical or face-to-face at trial

o Must be done only where denial is necessary to further public policy and only where the
reliability of testimony is otherwise assured
 Rule: Does not prohibit a procedure that ensures the reliability of the evidence by subjecting it to rigorous
adversarial testing, and thereby preserves the essence of effective confrontation.
o Interest of J.C. (Child not available to testify)
 In a case involving a child that does not testify, does this violate the Sixth Amendment
 Crawford v. Washington
o Primary Purpose test: (totality of circumstances)
 Statement cannot fall within the Confrontation Clause unless its primary purpose
is a testimonial.
 Was it to gather police evidence?
 Look to see if there was a pervasive police presence.
 Statements made by very young children will rarely if ever implicate the
confrontation clause.
th
o 6 amendment admissibility of hearsay
 Testimonial (not admissible) – aid in police investigation
 Objectively indicate no such emergency, used to prove past events
potentially related to criminal prosecution
o Grand jury testimony
o Preliminary hearing
o Former trial testimony
o Statements resulting from police interrogations
 Non-testimonial (falls under FRE to determine admissibility)
 Statements made to medical personnel
 Factors to consider:
 Ex parte (defendant not in court) in court testimony where the declarant
would reasonably have believed statements would be used for
testimony purposes and where the defendant was unable to cross-
examine the declarant
 Formalized testimonial materials such as confessions or depositions
 Statements made under Circumstances that lead witnesses to believe
the statements would be made at trial.
o Sex offenders
 Average prison decision is 9 years
 Most plea to lesser charges
 Some states place repeat sexual offenders in civil confinement for Dangerous rapists diagnosed with NOS
paraphilia (In re State v. Shannon S.)
 Some sex offenders are required to register and community notification is required – Meagan’s Law
 Family was unaware sex offender living across the street
 Kidnapped, raped, and murdered
 Cannot live by or visit schools, playgrounds, parks, day care
 Congress enacted Wetterling
o No mandated community notification
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 o Tier I- 15 years
o Tier II-25 years
o Tier III- Life
o Amended with SORNA (overall purpose)- SAFETY concerning convicted adults…what
about kids?
 Minimum state requirements for registration
 Requires registration
o A 14 year old and older Juvenile
 Sex act by threat, violence, by force, or drugging the
victim
 Some register only on a discretionary basis with the
state.
 Notification to community
 Loopholes allow offenders to relocate and not register
 22 states have implemented in 2022
o Child Pornography
 Ferber
 Child porn a 1st amendment right?
o Intrinsically related to sexual abuse of children
 Permanent record of child participation and exacerbated by circulation
 It’s difficult to halt exploitation that occurs when distributed
 TESTS:
o State Interest
 The state has a strong interest in safeguarding psychological and physical well
being of children
 COMPELLING
o Miller Test
 Does work, taken as a whole, appeal to the prurient interest of the average
person?
 On its face, not obscene…But if used to sexually exploit children, then
patently offensive.

ADOPTION- Alabama

2. Adoption was unknown at common law. There was no such thing as adoption in England. “Only God can create an heir and
the government cannot interfere and make one family part of another for purposes of heirship.”
3. Adoptions can be arranged

i. Private: Pre-arranged between the parties with counsel

ii. Public adoption: With governmental agency
[Link] who has parental rights
iv. In Alabama
1. Child of the age of 14 or older must consent to adoption
v. Can be international or international
4. Adoptions in Alabama are handled by the Juvenile Courts.
i. Termination is handled in Juvenile Courts and then case goes to the probate court.
ii. Filing focuses on domicile-where the parents live when it comes to if the AL courts have jurisdictions over
adoption; if parents are unmarried, the court looks to the mother’s domicile

5. Who may adopt

a. Must be within the state enumeration of persons allowed to adopt a child
b. Must be in the best interest of child

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6. State have requirements such as:
a. In Alabama, child over 14 must consent to adoption
b. Minimum age
c. Residency
d. Criminal background checks for
i. Child abuse/neglect
e. Preference goes to relatives in both states and federal law
i. Process is fast-tracked
ii. No protected right, but agencies frequently attempt to place children with relatives
1. Most states allow adult adoption, which is subject to particular restrictions
a. Alabama
i. Total permanent disability; or intellectual disability; or written consent + already
related by blood or marriage; or consent in writing + adoptive parents are
married man & woman.

7. Consent
a. There must be consent with adoptions. In all cases, biological parents' parental rights must be terminated before
adoption begins completed by judicial determination
1. The parent must consent
a. In almost all states must be in writing
b. May need to be under oath
c. May require witnesses
d. Alabama requires a notary
e. In Alabama, although a minor does not have capacity to contract, minor parents can
consent to adoption.
2. Voluntary Consent adoption is the perfect adoption because both parents voluntarily sign over the
rights for the child to be adopted.
a. Father unknown (REMEMBER PUTATIVE ANALYSIS FROM ABOVE): The law
wants the mother to put ANY and ALL names of men who she BELIEVES MIGHT
be the father of the child. However, a lot of times you will find that this person is
either unknown or the mother doesn’t want to put anything. The law DOES NOT
want this father unknown business. Many women perjure themselves in saying that
they don’t know.
b. It is not a guarantee that the father would be given custody of the child, but it gives
them an opportunity to be heard and to oppose the adoption. However, he doesn’t get
this legal right if his name is listed as unknown.
c. MUST REGISTER AS PUTATIVE FATHER!!!!
i. Rights of the father with adoptions
1. Heidbreder: Consent of the father wasn’t required when he registered
as a putative father outside the statutory window provided in the text
and can’t retain interest in a child in a pending adoption.
3. Involuntary termination of parental rights by state agency (ALABAMA is DHR)
a. State has deemed parent unfit- Alabama has grounds for termination in Ala Code 12-15-
319
i. Neglect/Abandonment
ii. Abuse
iii. Incapacity
iv. Conviction of and imprisonment for felony
v. Murder/Manslaughter of another child of the parent (or aiding or abetting the
murder)
vi. Parental rights to a sibling have been terminated
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 vii. Parent convicted of rape
viii. Failure to provide support
ix. Failure to maintain contact or communication with child
b. Involuntary termination by state
i. Rules (TWO PRONGS)
1. Clear and convincing evidence for statutory termination from Ala.
Code 12-15-319 (above)
a. In Alabama, we can now weigh if the child has sufficient ties
and connections to the foster parent to terminate parental
rights.
2. Preponderance of the evidence that severance is in the children’s best
issue
a. Child will benefit from severance
b. Child will be harmed if severance is denied

c. Judicial evaluation: Best Interest of the child standard (SEE 58-60 for detailed analysis).
i. Balancing factors such as the emotional ties and relationships between the child
and household members/caregivers
ii. Capacity of parents to provide a safe home and adequate food
iii. Mental and physical health needs of the child
iv. Mental and physical health of parents
v. Presence of domestic violence in the home
ii. In ALABAMA
1. Cannot terminate parental rights and avoid child support
2. Can terminate rights, give up custody, and still owe child support
3. Adoptive parents acquire the same rights as parents id under the constitution
4. Alabama Code 26-18A-7 on consent and 26-10A-13 on timing of withdrawal
a. 5 day grace period
i. In Alabama, if mom changes her mind, she has a 5 day grace period from the
date she signed the relinquishment papers to withdraw her consent to the
adoption. If you get this process wrong, the courts tend to go against the
parent who has placed this child up for adoption so watch out! Court
presumes it is in the best interest of the mother to be reunited with the child.
1. Requirements:
a. Notify the court of jurisdiction,
i. If unknown, notify
ii. Adoption agency (DHR), OR
iii. Adoptive parents
b. In writing,
i. Certified mail (best if file in person in the court of
jurisdiction)
c. Within 5 days of signing
b. 6-14 day hearing period
i. After the 5 day grace period, mother is entitled to a hearing on her attempted
withdraw and this GOES TO THE BEST INTERESTS OF THE CHILD and
her character is not quite relevant (wasn’t during grace period). Have to
prove that the biological mother raising the child is in their best interest over
the adoptive parents. This is often a huge hurdle since most adoptive parents
have to pass through the adoption process before they are eligible to adopt.
c. After 14 days
i. Must prove FRAUD, DURESS, or MISREPRESENTATION on the part of
the adoptive parents or the agency. This must come from the other side of
the table. This is a QUESTION OF FACT that must be proven.
ii. Only have ONE YEAR to plead this. Exception if the child was kidnapped
(hasn’t happened yet).
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 iii. Petition of Steve B.D.(EXAMPLE FOR REVOCATION)
1. A natural parent should be able to revoke consent to adoption unless
estopped
2. Estppped from revocation in this case, but Court also articulated a new
standard
a. In the absence of fraud, duress, or undue influence, consents to
adoption become final and irrevocable upon execution of the
consent to adoption by natural parents and delivery and
surrender of the child to the adoptive parents.
b. Reunification must be Must be in best interest of child and
revocation must be in with 14 days of birth or consent
d. Days 15-365: can’t be revoked absent proof of fraud or duress perpetrated by agency
e. Days 365 days: child will only be returned if proof of kidnapping and subsequent
adoption
Consequences of Adoption
● Terminates rights of natural parents
● Creates new rights in adoptive parents
● Some statutes define consequences
● Adoptive children inherit from the adoptive parents not the natural parents; doesn’t include class gifts
● Check state statutes
■ Some states require it to say ”heirs” and not “issue.”
■ Proceedings records are sealed to protect the child’s interest

 Proceeding records are sealed to protect the child’s interests

 Divorce is handled in Domestic Relations Court
 Juvenile court jurisdiction over adoption cases
 Juvenile courts terminate parental right
 Even if the parent consents, still needs to be done in juvenile court
 Once juvenile court terminates parental rights
o Goes to probate court
 Gives parent the adoption court
 Legal decree of parenthood
 Acquire status right and obligations that other parents have under constitution
 How may a child be adopted
o Three steps
 Child must be available for Adoption
 Parent must consent
o In almost all states, must be in writing
o May need to be under oath
o May require witnesses
o Alabama requires a notary
 OR
 Parental rights must have been terminated
 Must be within the state enumeration of persons available to adopt a child
 Must be in the best interest of the child
 May adopt nationally or internationally
o From non-profit
o Thru state DHR
o Independently: Private placement arrangement by private persons and adoptive parents
 In Alabama

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 o If over 14, child must consent to adoption
o Minor parent
 Has to consent as well, even though has incapacity (minor), has to consent
o Revocation is 5 days in Alabama
 Unwed parents
o Have a right to notice
o Rights to withhold consent
o Stanley v. Illinois (unwed father’s rights)
 Fundamental due process right to privacy in ordering family (raise and conceive parent), duty to parent the
child, direct upbringing, and deciding who has visitation with the child.
 Strict scrutiny
 Equal protection
 Treated differently than unwed mothers
 Treated differently than married parents
o Suspect classes that trigger strict scrutiny: race, religion, national origin, and alienage.
However, this is not an exhaustive list.
o Gender is a suspect classification
 Intermediate scrutiny
 further an important government interest (lower burden than
compelling state interest required by strict scrutiny test) and
 must do so by means that are substantially related to that interest.
 Two unmarried individuals are not usually eligible to adopt a child
 Individual unmarried adult may be eligible to adopt
 Grandparents may be eligible to adopt
 There are adult adoptions
 Several state and federal laws prohibit discrimination based on a person’s disability
o Case by case basis
o Look to best interest of the child
 Separate adoption of siblings
o No constitutional right for siblings to be adopted together or to be fostered together

Medical Decision making in Children’s Rights

 Minor lacks the capacity to consent

 However, in medical field, there are exceptions
o Parham v. J.R.
 Rule: A child’s liberty and due-process rights are not violated when parents or guardians have
the child voluntarily committed to a mental institution if the commitment procedures involve
independent medical review.
 Matthew Balancing:
 children have the same liberty rights as adults against erroneous medical diagnoses
and unnecessary confinement. Parents, however, have broad rights in raising their
children as they see fit, which includes most medical decisions, regardless of the
child’s opinion. Parental discretion is subject to governmental control when the child’s
physical or mental health is jeopardized. Although parents should retain a substantial
role in the decision to voluntarily commit a child, the deprivation of liberty invokes
due-process rights that must include independent review by a neutral factfinder, such
as a staff physician.

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