A Child's Constitutional Right to Family Integrity and Counsel in Dependency Proceedings

• Publication year: 2023

A Child's Constitutional Right to Family Integrity and Counsel in Dependency Proceedings

Rachel Kennedy

A CHILD'S CONSTITUTIONAL RIGHT TO FAMILY INTEGRITY AND COUNSEL IN DEPENDENCY PROCEEDINGS

ABSTRACT

Since the child welfare system's inception, abuse and neglect laws have conflated poverty-related neglect with active parental violence and willful neglect. The ensuing state surveillance has disproportionately harmed poor children and children of color. Pursuant to the state's expansive parens patriae authority, countless families are investigated, and thousands of children are separated from their caretakers each year—only to be returned within days or weeks after a finding that the reasons for removal were unsubstantiated. Other children risk drifting in foster care limbo until they experience the termination of parental rights—an adjudication so severe that some courts call it the "civil death penalty." Mounting empirical evidence on the racial disparities and trauma caused by the child welfare system has resulted in increasing calls for its abolition.

Despite the prominence of family values in American discourse, the Constitution does not speak to the family, and the Supreme Court has shied away from addressing children's rights in the family context—leaving children without a meaningful mechanism to assert their rights in dependency proceedings. Notwithstanding the Court's silence, this Comment argues that Supreme Court jurisprudence implies children have a constitutional right to family relationships free from unwarranted state interference—in other words, a right to family integrity.

Recognizing a child's right to family integrity has significant implications for the child welfare system. In the 1960s, the Supreme Court confronted how the juvenile justice system's procedural informality harmed children's liberty interests. As a result, the Court recognized a child's right to counsel in delinquency proceedings. However, the Court has yet to afford children such protection in dependency proceedings despite similar harms inflicted by the child welfare system's procedural informality. This Comment argues that to adequately safeguard a child's right to family integrity, children must be guaranteed the due process right to counsel in dependency proceedings.

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TABLE OF CONTENTS

INTRODUCTION..........................................................................................913

I. A CHILD'S CONSTITUTIONAL RIGHT TO FAMILY INTEGRITY............917

A. The Evolution of Children's Rights .........................................918
B. Supreme Court Jurisprudence Defining the Right to Family Integrity.................................................................................. 921
C. Circuit Court Applications of a Child's Right to Family Integrity.................................................................................. 926
D. A Critical Reflection: What Difference Does a Child's Right Make? ...........................................................................932

II. THE CONSEQUENCES OF INADEQUATE PROCEDURAL PROTECTIONS FOR CHILDREN IN DEPENDENCY PROCEEDINGS......................................933

A. The Origins of the Child Welfare System and Modern-Day Disparities.............................................................................. 934
B. The "Swinging Pendulum" of Child Abuse and Neglect Legislation.............................................................................. 937
C. The Harm Children Face Throughout Dependency Proceedings............................................................................ 942
D. An Inflection Point: Reckoning with the Realities of the Child Welfare System ....................................................................... 947

III. CHILDREN MUST BE GUARANTEED COUNSEL IN DEPENDENCY PROCEEDINGS: A DUE PROCESS ANALYSIS.....................................948

A. The Child's Interests at Stake.................................................. 950
B. The Risk of Erroneous Deprivation: CARTA's Inadequate Protections ............................................................................. 951
C. The Value of Additional Safeguards: Giving the Child a Voice ......................................................................................955
D. The Government's Interests Implicated by a Child's Right to Counsel .................................................................................. 956

IV. IMPLEMENTATION: ENSURING THE EFFECTIVE ASSISTANCE OF COUNSEL........................................................................................958

CONCLUSION.............................................................................................962

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INTRODUCTION

One seemingly ordinary night in Brooklyn, Maisha Joefield tucked her five-year-old daughter Deja into her princess bed.¹ Exhausted, Maisha put on headphones and took a bath.² After soaking, she exited the bathroom—only to discover a mother's nightmare.³ Deja was missing.⁴ Maisha began "frantically searching."⁵ Little did she know, Deja had wandered across the street toward a familiar destination: her great-grandmother's apartment.⁶ Deja's short journey was intercepted by a passerby who called the police.⁷ Despite Maisha's reasonable explanation and the officer's observation "that Deja appeared well looked after,"⁸ Deja was taken into Child Protective Services ("CPS") custody and Maisha was charged with child endangerment.⁹

Over the next four days, five-year-old Deja was surrounded by strangers as she faced periodic interrogations about her home life.¹⁰ Deja's great-grandmother repeatedly requested that CPS transfer Deja to her custody while Maisha's charges were pending.¹¹ CPS contacted Deja's pediatrician and school administrator, who both reported that Deja was intelligent for her age and well supported at home.¹² Still, CPS kept Deja separated from her family.¹³

Finally, the case was presented to a judge.¹⁴ The judge determined that Deja's "risk of emotional harm" caused by the CPS-facilitated family separation outweighed the risk of possible neglect, and the judge ordered CPS to return

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Deja to Maisha's care.¹⁵ The hellish chapter of family separation appeared to close for Deja and Maisha, but the effects were far from over.¹⁶ Although Maisha was never convicted of child endangerment, her name remained on the state registry of child abusers.¹⁷ The registry prevented Maisha, a former daycare worker and single mother, from continuing to work with children.¹⁸ Meanwhile, Deja experienced ongoing harms.¹⁹ Deja's school administrator later reported that Deja was "not doing as well as she used to before she was removed from her home."²⁰ Years later, Maisha mourned that Deja was never quite the same after her forced displacement—"she was always second-guessing if she did something wrong, if I was mad at her."²¹

When people think about children removed from their homes due to abuse or neglect, they may conjure up headlines of horrifying accounts of harm: children intentionally starved, abandoned, sexually abused, or battered by their parents.²² These tragedies rightfully rile the public's sensibilities, and the state has a clear interest in protecting children from such harms.²³ However, most children impacted by the "child welfare system"²⁴ enter the system not because

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of newsworthy parental violence, but because of allegations of nebulously-defined neglect.²⁵ This reality raises critical concerns about the system's design to "err on the side of removal."²⁶

When determining whether to remove a child at risk of abuse or neglect, a judge faces a weighty question: "What if I do not issue a removal order and something bad happens?"²⁷ The consequences for the child could be fatal.²⁸ Yet, there is a parallel, far less sensationalized concern inherent to every child removal decision: "What if I do issue a removal order and it was unnecessary?"²⁹ For children like Deja, an unfounded removal is not a neutral incident for the

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child³⁰ or the parent.³¹ Even brief instances of family separation carry far-reaching consequences.³² As a former foster child described it, removal and placement in foster care is like chemotherapy: it can be lifesaving, but it is "inherently toxic and should only be used as a last resort."³³

This Comment argues that children have a constitutional right to family integrity,³⁴ which is routinely jeopardized under the current child welfare system. Alarmingly, Deja's story is far from an anomaly.³⁵ To safeguard a child's right to family integrity, this Comment argues that the child has a procedural due process right to counsel in dependency proceedings.³⁶ Although others have previously argued for a child's right to counsel in dependency proceedings,³⁷ this Comment uniquely roots the argument in the child's right to family integrity.

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Part I of this Comment establishes a child's constitutional right to family integrity by discussing the evolution of children's rights, tracing Supreme Court jurisprudence defining family integrity, and analyzing circuit court recognitions and applications of a child's right to family integrity. Part II surveys the history and current state of child welfare law and details empirical research on the harm inflicted by child welfare policies in practice. Part III employs the Mathews v. Eldridge framework to analyze the child's and government's interests at stake in dependency proceedings and argue that children have a due process right to counsel. Finally, Part IV discusses practical implementation considerations and counterarguments, ultimately highlighting why it is critical to anchor a child's right to counsel in the child's fundamental right to family integrity.

I. A CHILD'S CONSTITUTIONAL RIGHT TO FAMILY INTEGRITY

Despite the universal experience of childhood, the Supreme Court has long been reluctant to carve out children's constitutional rights.³⁸ Nonetheless...