by Elaine Chiu
Associate Professor of Law, St. John’s University School of Law
This is an abridged version of the original document by Elaine Chiu. To view the original in its entirety, click here.
Note: Highlights/comments in purple are those of TransActive staff.
When the laws of a community reflect a dominant culture [i.e., parents of non-transgender children) and yet many of its members are from other minority cultures (parents of transgender children], there is often conflict. When this conflict occurs in the legal regulation of the parent-child relationship, the consequences are tremendous for the children, the parents, and the State.
This Article focuses on the federal statute criminalizing female genital surgeries, and, in doing so, it makes two major claims.
The first claim is that the decisions of minority parents are scrutinized and regulated to a greater degree than the decisions of parents from the dominant culture, even when their decisions are strikingly similar. For example, breast implant procedures, intersex surgeries, and the administration of growth hormones are arguably analogous to female genital surgeries [or puberty blockers/cross-gender hormone therapies], and yet they are severely under regulated.
The result is a differential in the autonomy of parents that is explained more by cultural differences than by an objective interest in the protection of children.
The second claim in the Article is a prescription for how the law can minimize this culture differential.
This Article advocates for the adoption of procedural reforms to ensure cultural mindfulness or “hard second looks” at both the administrative and legislative levels in child welfare.
Introduction
I. The Parent-Child Relationship and Its Legal Regulation
II. The Culture Differential in Parental Autonomy
III. A Hard Second Look: Intercultural Decision Making
Every eight seconds a baby is born in the United States.1 In that moment, a very special relationship between parent and child is born. Numerous sources of law govern this relationship,2 including state and federal law, and even the U.S. Constitution.3 As a result, the relationship between parent and child is not simply between parent and child. Rather, the state, with all of its power and authority, is also involved.
The parent-child relationship also feels the heavy hand of another influence — the cultural background of the parents.4 Culture dictates what are optimal, appropriate, and acceptable parenting practices.
What one group accepts may be considered unacceptable or even abusive and neglectful by another group.5 For example, many American parents warn against picking up a baby every time the baby cries for fear of spoiling the baby, while New Guinea parents believe allowing a baby to cry harms the child’s immediate well-being and permits the spirit of the child to escape through their open fontanelle.6 While parents in both countries share the ultimate goal of avoiding harm to the baby, they differ on how to achieve it.
While we should celebrate our increasing diversity, it is also a challenge for our rule of law and our democratic ideals. The composition of the American populace is changing, but the laws governing the populace are not keeping pace. Thus, the laws are out of step with the population that they govern. Significant obstacles prevent the law from keeping pace with demographic changes. These include inequalities in political power and inefficiencies of the modern legislative process.7 This Article discusses a more deeply entrenched obstacle to legal change, and that, once again, is culture.
In the United States, the values and beliefs of the dominant culture [i.e., gender normative] determine the law. The dominant Anglo American culture blends our British roots with certain distinctly American values.8 Like parenting, the law is a product of Anglo American culture.9 For example, early British common law focused on the rights of parents and the duties owed by children to their parents.10 The first two Supreme Court cases on the parent-child relationship framed the legal question in terms of the individual rights of parents versus the state.11 In contrast, today, many jurists view the goal of the child welfare system as the protection of the rights of children against the conflicting rights of parents.12 The dominance of the rights paradigm reflects the value placed on individual rights by Anglo American culture.
In her book, Child Abuse and Culture: Working With Diverse Families, Dr. Lisa Aronson Fontes further explains how the dominance of certain cultural norms leads to bias and unfairness.
13 She notes that“ regardless of their own cultural background, most professionals in North America have been schooled to see people from the dominant [proponents of gender conformity] group as the norm and people from other groups [gender non-conforming and allies to the gender non-conforming] as deviant,”14 and these “cultural norms shape how we evaluate abuse and risk.”15 The strongest evidence of this cultural bias is the disproportionate numbers of “black children who are in the child welfare system and permanently removed from their homes, despite similar rates of abuse across racial groups.”16Understanding this cultural bias in the regulation of parents is a necessary part of any serious undertaking to resolve the challenge of multiculturalism for the law. As Professor Martha Minow explains, the hardest struggles over cultural differences in our liberal democracy are about children (rather than women).17
Honest consideration of the centrality of choice should make it clear that children, not women, lie at the heart of questions of cultural clash and accommodation. Indeed, children are the prime targets of socialization, and children, even in liberal societies, are not viewed as yet capable of choice.
Any genuine effort to enable choices must focus on children. Yet any such effort then collides forcibly at the heart of culture, at the center of immigrant communities, at the core of Third World societies, even at the most fundamental freedoms — to reproduce and raise children — ensured by law to individuals in Western, democratic societies . . . Reconciling what it takes to equip children as choosers with what it takes to respect parents and communities as child rearers is as hard as any task gets.18
A. The Social Significance of Parents
Although the living patterns of human beings vary over time and across cultures, there is one element that is nearly universal: the social unit of parent and child.
In a way that seems entirely natural to most people, the primary responsibility for . . . [the protection, nurture, and education of children] . . . falls to parents. It is the biological parent or the adult acting in his or her place who must assume the central task of overseeing the physical, intellectual, and emotional development of the child into adulthood.19
Some believe that the very survival of humanity depends on parents “rearing their young with the best possible care and optimal concern.”20
The nearly universal reliance on the parent-child unit is due to the widely held belief or assumption that parents love their children.21 A “cherished folk belief is [that] human nature compels parents to rear their young with solicitousness and concern, good intentions, and tender and loving care.”22 Parental love has even been described as a presumption of natural law.23 William Blackstone wrote that the “natural bonds of affection lead parents to act in the best interests of their children.”24
Aside from loving their children, what else is it that parents do? There are certain goals in common for most human parents. These include the physical survival and health of the child, the economic independence of the child upon reaching maturity as an adult, and the capacity to maximize other culturally important values.25 In striving toward these goals, parents have three primary roles: provider, decision maker, and teacher and role model.
Parents make countless decisions for their children that range from mundane to fundamental in nature. For example, everyday decisions address when and what a child eats, when and how much a child sleeps, where and with whom a child sleeps, how a child dresses, and how a child grooms his hair. More critical decisions involve the determination of where and with whom a child lives, with whom a child interacts outside of his home, and how frequently and for how long.26 There are also the important choices parents make about the education and schooling of their children, their religious upbringing, and their medical care.
In addition to functioning as decision makers for their children, parents also serve as teachers and role models. Thus, it is not surprising that children mimic their parents in certain ways. For example, children seem to acquire their attitudes about gender from their parents27 and this contributes to the tragic cycle of domestic violence.28
B. A Triad of Right, Responsibility, and Restriction
Given how much society relies upon parents for the serious tasks of raising and taking care of children, it is only fitting that the law hold parents in special regard.29
In the United States, this special regard is reflected in a triad of right, responsibility, and restriction. While parents may enjoy certain rights with respect to their children, they also have many legal responsibilities.30 As the Supreme Court wrote, “parents generally ‘have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.’”31
In addition to affirmative obligations, the law also imposes restrictions on parents.32 This multi-layered legal treatment of parents is located in a myriad of laws that range from the common law to statues, from civil rules to criminal offenses, and from federal law to local law.
1.The Right of Parental Autonomy
As recently as 2000 in Troxel v. Granville, the Court’s plurality elevated parental autonomy over other individual freedoms. A “parent’s interest in the care, custody and control of her child,” the Court held, is “perhaps the oldest of the fundamental liberty interests recognized.”33 Lower federal courts have declared parental autonomy “the most venerable of the liberty interests in the Constitution”34 and placed it within the realm of human rights.35
While parents provide for and teach their children, it is often their role as decision makers that the fundamental right to parental autonomy protects. Meyer and Pierce concerned educational decisions,36 but both have been cited in a wide variety of other contexts. For example, the Supreme Court in Troxel upheld a mother’s right to decide how much time to allow her children to visit with their paternal grandparents.37 The lower court overrode the mother’s decision, but the Supreme Court reversed, explicitly relying on the presumption that parents act in the best interests of their children.38 This is significant because it highlights how the strong belief in parents’ love for their children leads to the legal protection of their decisions.39
2. Responsibility and Restriction
Though courts zealously guard parental autonomy, it is far from an absolute right. The law also mandates certain responsibilities and sets forth particular restrictions in trying to balance two distinct paradigms in family law: the interests of the state as the guardian of children, and the interests of children as autonomous individuals with independent rights. The paramount goal of both paradigms is the protection of children.40 This goal trumps parental autonomy. The balancing of parents’, children’s, and states’ rights make regulating the parent-child relationship complex and challenging. I briefly describe the two paradigms because they help to explain the restrictions and responsibilities imposed upon parents.
Paradigm #1
In the first paradigm, the state regards itself as parens patriae of all children in its jurisdiction.41 It shares the tasks of parenting with individual parents.42 Consequently, the state has an interest in protecting the welfare of children and thus “has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare.”43 For example, the state may require children to attend school and forbid children from working.44 The state also enforces parents’ obligation to support their children.45 For example, every day, law enforcement officials and judges garnish wages, revoke driving licenses, and even imprison deadbeat parents.46 There is a fundamental Anglo American belief that parents ought to be responsible for the welfare of their children47 and that the state, as parens patriae, ensures that they are. In addition to setting the rules, the state as parens patriae exacts severe penalties in the child welfare system upon parents who violate the rules.48 All fifty states have child welfare agencies dedicated to protecting children.49 These agencies interfere with parental autonomy when parents have committed crimes against their children50 (child abuse) or failed their basic responsibilities toward them (child neglect).51
[An argument could be made that, given the statistics of depression, loss of self-esteem, high-risk behavior and suicidal ideation rejection or denial of a child's gender non-conforming or transgender identity is, at the very least, child-neglect.]
In order to work, this first paradigm requires a hierarchy. The Supreme Court has written that individual parents outrank the state in their shared parenting of children.
It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder . . . . And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.52
Thus, courts evaluate the parens patriae actions of the state against the privileged place of parents.53
This approach conceptualizes children in two distinct ways. First, children are persons, but they lack full status under the law.54 They acquire status only through the passage of time and the attainment of minimum ages. As a result of this incomplete status, there is “no place for children’s voices or for recognition of children’s personhood.”55 Instead, “the voice of children as a group [is] . . . subordinated to that of their presumptively caring, affectionate parents.”56 Both individual parents and the state as parens patriae exercise authority over children.57
Paradigm #2
Alternatively, children are not persons, but rather they are property. Professor Barbara Bennett Woodhouse reinterprets Meyer and Pierce as reflections of a “property-based notion of the private child.”58 This is consistent with a legal system that values “private ownership, hierarchical structures, and individualist values against claims of collective governance.”59 Under this conception, individual parents and the state own children.60
The second paradigm imagines the state not as an additional parental figure, but instead as an arbiter in disputes between parent and child. The end purpose of the state is the same: the welfare of children. However, the nature of the state’s decisions has changed. No longer does the state make its own assessment of what is best for children; instead, the state has to decide between allowing children to decide for themselves or subjecting children to their parents’ authority.61
Paradigm #3
This role as arbiter offers yet a third perspective on children. Children are full persons and are neither the property of the state nor individual parents. The rights of children are comparable to the rights of adults, but are not exactly the same.62 Subsequently, the Court has continued to struggle over the competing rights of children and their parents.63
C. The Strained Coexistence of State, Parent, and Child
Society relies tremendously on individual parents to raise children. However, as the triad of right, responsibility, and restriction expresses, this reliance does not translate into unlimited freedom. The final objective of society and its laws is not to respect individual parents, but instead to ensure the welfare of children. The law views the right of parental autonomy as a means toward that end.64
In most families, the means and end intersect. Several scholars explain how the best way to protect children is to protect the autonomy of their parents.65 Professor Katherine Bartlett believes that parents need the security of autonomy from state interference to act in the best interests of their children.66 Professor Janet Leach Richards suggests that parental autonomy leads to family unity and closeness.67 Even the famous Professor Joseph Goldstein in his continuity of care theory states that “the right of parents to raise their children . . . free of coercive intervention, comports well with the children’s psychological and biological need for unbroken continuity of care by his parents.”68
However, there are families where the means and the end are not aligned and where children need protection from the harmful [often unintentionally so] acts of their parents.
[For transgender spectrum children and adolescents, this is where the parental and societal expectation of gender conformity can lead to inaction, rejection and the denial of beneficial and supportive professional care.]
The interest of these parents is still to be free from state intervention; however, such interest contradicts the welfare of the children. What should happen in these families? Should the means of parental autonomy be sacrificed in the name of child protection? Or should child protection be vulnerable to the preservation of freedom?
The dramatic language the Court used to describe the fundamental nature of parental autonomy suggests strict scrutiny as the proper level of analysis. The state may interfere with the fundamental autonomy of parents only when the state action is narrowly tailored to achieve compelling state interests. For example, in the context of child abuse, strict scrutiny would require actual or threatened harm be of a serious and unjustified nature before a state can act. Protection from minimal physical pain would not be sufficiently compelling.69
[In cases where a non-custodial parent who is not supportive of a child's transgender identity wishes to wrest custody from the supportive, custodial parent, they will allege (historically without foundation) that the custodial parent is planning to have body-altering surgery or hormonal therapy performed on the minor child. Family judges, dealing with a circumstance with which they most likely have no previous experience, will err on the side of caution and order an emergency hearing or, at times, an emergency change of custody. This immediately puts both the supportive parent and the child in defensive position and can have a long-term negative impact on the well-being of the transgender child.]
Despite the appeal of the strict scrutiny standard, the Supreme Court has been inconsistent in its choice of a level of analysis.70 The Court has used the rational basis test in some cases71 and has failed to identify precisely what test it was using in other cases.72 Many observers73 and even one of the Justices74 are frustrated by the Court’s wavering on this issue. The only consensus is that while the Supreme Court has not always applied strict scrutiny, recent cases appear to reject the rational basis test, instead using some form of heightened scrutiny in analyzing state actions against parents.75 Unable to theorize with satisfaction the Court’s analyses across cases, legal scholars instead offer their own opinion of the appropriate balance between parental autonomy and child welfare.76
The majority of parents in the United States are not troubled by this confusion in constitutional jurisprudence. For them, there is very little interference by the state in their lives. From the moment of their children’s births, they exercise tremendous authority over their children. Parents decide what clothing a child wears [almost exclusively gender stereotypical attire], what food and when a child eats, where a child lives, what language she speaks, where she goes to school, what faith the child practices, and with whom she associates and for how long. Although there are minimum educational, shelter, food, and medical care requirements, and prohibitions against child labor and excessive corporal discipline, for many parents, the state’s boundaries are symbolic and do not affect the decisions they make.77
However, for an important minority of parents, the laws are real incursions of their parental autonomy. Having described the complexity of the legal regulation of the parent-child relationship, I turn in the next part to the first claim in this Article: parents from the dominant culture enjoy more autonomy than parents from minority cultures. While others have focused on the race differential,78 this Article emphasizes a culture differential. This differential may be less obvious but also poses difficult questions of equality and justice.
The differential leads to a grave lessening in the enjoyment of a constitutionally protected right. Parents from minority cultures experience it in an assortment of ways. For instance, agency representatives may require parents to explain or justify particular parenting decisions. They may compel parents to go to testing and parenting programs, or impose other restrictions.79 State laws may prohibit parents from making certain culturally derived decisions for their children. Such prohibitions may apply universally, but actually burden only parents from specific minority cultures because only those parents are inclined to do what is outlawed.80 Finally, the state may even terminate an individual’s parental rights.81 Because of the serious consequences, the culture differential is significant and thus warrants a careful examination.
The origins of the culture differential lie in three basic truisms. First, parenting is a cultural construct. Second, laws on parenting are also a cultural construct. Third, when the culture of a parent does not match the culture of the law, a culture clash arises. In such cases, the law will typically emerge victorious, leaving parents with a loss of their autonomy and quite possibly, a loss of their children.82
Traditional modes of child care and socialization are often maintained long after marked changes have occurred in other realms of culture such as religion, politics, and economics.”83 Ironically, parenting practices last longer because people fail to appreciate that parenting is a cultural construct. “The child-rearing practices of one’s own culture may seem ‘natural,’ but in actuality they may be unique in comparison with others.”84 By equating what seems natural with what is right, parents not only fail to question their own practices but also seek to impose their practices upon others.
The laws governing parenting are products of culture that reflect these persistent parenting practices. After all, the very same unquestioning individuals who grew up to parent according to culturally determined practices also write the laws. Lawmaking is a human enterprise. Indeed, family law has operated throughout history as a tool for reinforcing cultural norms.85 It rarely has functioned to initiate cultural change.86
Exacerbating this predicament is the fact that decision makers in the child welfare system overwhelmingly belong to the dominant Anglo American culture. These decision makers include judges,87 state or local attorneys, police officers, and social workers.88 The lens through which they interpret and apply the laws is the lens of their own culture, the dominant [gender conforming/normative] culture. Thus, even if the substantive laws were more culture neutral, there is still the lens of the individual decision makers confronting minority parents.89
A. Lessons from Intercultural Relations
Anthropologist Jill Korbin begins with the premise that child abuse and child neglect occur in all cultures and communities around the world and have occurred throughout history.90 Indeed, such instances occur with enough frequency that we have been to forced to recognize that child abuse and child neglect “are well within the repertoire of human behavior.”91 In a subset of these determinations concerning child abuse and child neglect, however, there is a defining cross-cultural context.92 For this context, there are two different perspectives that are both essential to the appropriate identification of child abuse and child neglect.93 She terms these perspectives the emic perspective and the etic perspective.94 The former is “the viewpoint of members of the cultural group in question,”95 and the latter is an outside, wider perspective.96
To use an example to explain these two perspectives, Korbin compares the East African practice of scarification to orthodontic work in Western cultures.97 Scarification is the tradition of marking the face of children with lacerations so that children can later participate as adults in their East African tribes. The failure to do so is an act of parental neglect or abuse in the cultural context of such tribes.98 The etic perspective on scarification and on orthodontic treatment for children is the same: namely, the physical pain that is caused to children. This perspective alone, though, does not provide a complete understanding of these parental practices. In addition, the emic perspective warrants consideration. She notes that “viewed within their [cultural] contexts, both are practices that are aimed at benefiting the child by making him or her physically acceptable to other members of the culture.”99
What happens when the consideration of both emic and etic perspectives results in a disparity?100 This is most likely to occur with childrearing practices that are viewed as acceptable by one group but as abusive or neglectful by another group in a cross-cultural situation.
B. A Hard Second Look: Intercultural Decision Making
How can the law mandate that lawmakers, judges, and social workers incorporate both an emic perspective and an etic perspective in their decision making? The child welfare system should not simply rely on the civic inclinations of individuals to take hard second looks. Instead, with the right of minority parents to provide for the best interests of their children at stake, such looks should be uniformly required. To close the cultural gap in parental autonomy, I propose that the child welfare system adopt procedural reforms aimed at the injection of the emic perspective in decision making.
There are two current measures that could effectively mandate the emic perspective. The first is a little-known, unique statute in California. The second is an approach to decision making used by an increasing number of child welfare agencies across the United States. Below are brief descriptions of both measures.
Section 16509 of the California Welfare and Institutions Code affirmatively states that:
Cultural and religious child-rearing practices and beliefs which differ from general community standards shall not in themselves create a need for child welfare services unless the practices present a specific danger to the physical or emotional safety of the child.101
This statute was passed in 1982 as part of a package of amendments to an older 1969 law.102 What is extraordinary about the statute is not its protection of religious child rearing practices. There have been many times when states have given parents protection for their religiously motivated decisions.103 Its uniqueness is the protection that it extends to culturally motivated parents. No other state does this.104
The primary motivation in 1982 for all the amendments was to move the state foster care system firmly toward the goal of family reunification or family preservation.105 The motivations for this specific protection of cultural practices were more complex. In an oft-repeated quote from the 1979 medical neglect case of In re Phillip B., a California judge explained that “inherent in the preference for parental autonomy is a commitment to diverse lifestyles, including the right of parents to raise their children as they think best.”106
The import of this statute is quasi-procedural, not substantive. It provides that differences in culture alone do not warrant the interference of the state. To the contrary, there must be a specific danger to the child before state action is justified. This requirement of a specific danger does not add anything substantively new to existing child abuse and child neglect definitions in California. The existing definitions already require such physical or emotional danger.107 What this special statute in California does is to mandate decision makers to take a hard second look. In this heightened consideration, decision makers must put aside their etic perspective for a moment and adopt the emic perspective in their search for a real harm to the child. This is the process that must occur before a decision maker can impose child welfare services.
Interestingly, the actual impact of this statute has been limited. To date, there are only a handful of California decisions that discuss section 16509.108 Not one of them features the successful invocation of the section by parents to challenge the actions of the child welfare agency. Regardless of the actual experience California has had with its unique statute, I suggest it as a model for how the emic perspective can be injected into decision making at the legislative and agency levels and then reinforced through judicial oversight.
My second suggestion of a procedural reform to correct the culture differential is a relatively recent risk assessment tool known as structured decision making.109 Professor Aronson Fontes included structured decision making as one of many suggested reforms in her book on working with diverse families in the child welfare system.110 This is a model for reaching more consistent and more substantively correct decisions for families that are referred to state child welfare agencies. Today, agencies in sixteen states and three countries use this model or something similar to it.111 The model started with Alaska in the late 1980s, has been studied for its effectiveness, and has improved over time.112
Under the law, parents and children have a relationship that is marked by a trilogy of right, responsibility, and restriction. The complications of this relationship are due to the large presence of the state as a third party in this relationship. Given the fundamental nature of the right to parental autonomy and the difficult coexistence of state, parent, and child, it is not acceptable for judgments to be made without due care and circumspection. The natural human reaction to unfamiliar parenting practices was recognized as dangerous by the Supreme Court in the 1972 case of Wisconsin v. Yoder, which involved Amish parents. The Court held, “A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.”113 After all, a fundamental liberty and a commitment to diversity demand much more from our decision makers.
Second, correction of the culture differential does not lie only in constitutional litigation, but also in decision making process reforms. Such reforms, whether driven by statute or by internal agency assessment tools, are a proscriptive mandate to inject the important emic perspective of minority cultures into such judgments. Starting from birth, the relationship of parent and child is a precious thing for individuals as well as for greater society. It should be handled with the utmost care.
1.
See Stephen Ohlemacher, America’s Population to Hit 300 Million This Fall, AP WORLDSTREAM, June 25, 2006, at 1.21. See Solangel Maldonado, When Father (or Mother) Doesn’t Know Best: Quasi- Parents and Parental Deference After Troxel v. Granville, 88 IOWA L. REV. 865, 921-22 (2003) (offering assumption of love as one of five rationales for why law presumes that parents act in best interests of their children).
22. See Korbin, supra note 6, at 3.
23. See Alison M. Brumley, Parental Control of a Minor’s Right to Sue in Federal Court, 58 U. CHI. L. REV. 333, 342 (1991).
24. See Maldonado, supra note 36, at 921-22 (citing 1 WILLIAM BLACKSTONE, COMMENTARIES *447 and 2 JEROME KENT, COMMENTARIES ON AMERICAN LAW 190 (2008)).
25. See Robert A. Levine, A Cross-Cultural Perspective on Parenting, in PARENTING IN A MULTICULTURAL SOCIETY, supra note 34, at 17.
26. See, e.g., Troxel v. Granville, 530 U.S. 57 (2000) (concerning dispute between paternal grandparents who were denied visitation time with their grandchildren by children’s mother).
27. See id. at 23-25.
28. See ANGELA BROWNE, WHEN BATTERED WOMEN KILL 23-35 (1987).
29. In several opinions, the Supreme Court acknowledged the deep roots and the social desirability of the parent-child relationship in Western civilization: “Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course.” Parham v. J.R., 442 U.S. 584, 602 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 213 (1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390, 400 (1923)).
30. “Within the family, parents have legal power to make a wide range of important decisions that affect the life of the child, but are held responsible for the child’s care and support by the state.” See ROBERT H. MNOOKIN & D. KELLY WEISBERG, CHILD, FAMILY, AND STATE: PROBLEMS AND MATERIALS ON CHILDREN AND THE LAW 2 (5th ed. 2005).
31. Id.
32. See infra Part I.B.2.
33 See Lenese Herbert, Plantation Lullabies: How Fourth Amendment Policing Violates the Fourteenth Amendment Right of African Americans to Parent, 19 ST. JOHN’S J. LEGAL COMMENT. 197, 203-04 (2005) (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)).
34 Hatch v. Dep’t for Children, 274 F.3d 12, 20 (1st Cir. 2001).
35. Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977).
36. Meyer recognized the right of parents to hire private instructors to teach non- English languages to their children. See Meyer, 262 U.S. at 400 (“Mere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable. . . . [T]he right of parents to engage [the plaintiff teacher] . . . so to instruct their children . . . are within the liberty of the [Fourteenth] Amendment.”).
37. See Troxel v. Granville, 530 U.S. 57, 63 (2000) (reversing lower court decision to override mother’s decision to order additional visitation between grandparents and children).
38. See id. at 72-73.
39. See supra text accompanying notes 27-33.
40. See SAMUEL M. DAVIS ET AL., CHILDREN IN THE LEGAL SYSTEM: CASES AND MATERIALS 2 (3d ed. 2004) (“[I]n the early years of the twentieth century . . . the idea that the state has a responsibility for the welfare of children, and that society has an interest in how children are reared, emerged and became widely accepted.”); id. at 157 (explaining Justice Douglas’s dissent in Wisconsin v. Yoder inspired children’s rights movement by viewing role of law in lives of children as “not simply a matter of balancing the interests of the state and the parents” but instead also about recognizing that “the mature minor has a constitutionally protected interest in self-determination that may be implicated when important matters affecting her life are at stake”).
41. “The state regarded as a sovereign; the state in its capacity as provider of protection to those unable to care for themselves.” BLACK’S LAW DICTIONARY 1144 (8th ed. 2004).
42. See supra text accompanying notes 34-39.
43. See Prince v. Massachusetts, 321 U.S. 158, 167 (1944).
44. See id. at 166.
45. See Barbara Bennett Woodhouse, “It All Depends on What You Mean by Home”: Toward a Communitarian Theory of the ‘Nontraditional’ Family, 1996 UTAH L. REV. 569, 574 (1996) (“[B]y virtue of their acts of procreation, parents are obligated (with limited exit options) to support and take responsibility for their dependent children.”). Courts regard the financial obligations of parents seriously. For example, courts reject the efforts of parents to avoid child support by claiming that they were deceived into having unprotected sex that led to the conception of their children. See Pamela F. v. Frank S., 449 N.E.2d 713, 715 (N.Y. 1983).
46. See Woodhouse, supra note 66, at 574.
47. See John Seymour, Parens Patriae and Wardship Powers: Their Nature and Origin, 14 OXFORD J. LEGAL STUD. 159, 161-62 (1994).
48. See Patricia A. Schene, Past, Present, and Future Roles of Child Protective Services, 8 FUTURE OF CHILD. 23, 25 (1998) (“The doctrine known as parens patriae . . . was viewed as justification for governmental intervention into the parent-child relationship. . . . Children of the ‘unworthy poor’ were saved . . . by separation from their parents through indenture or placement in institutions. Actions taken on behalf of those children were typically justified on moral grounds, but they also served as potent instruments of social control.” (italics in original)).
49. Although these agencies will investigate all incidents of abuse and neglect of a child, whether the perpetrators are the legal parents of the child or not, most of their cases involve the parent-child relationship. ACS UPDATE ANNUAL REPORT 1-5 (2005), available at http://www.nyc.gov/html/acs/downloads/pdf/stats_update_5year.pdf .
50. Frequently states use their penal offenses in their definitions of what constitutes child abuse. See, e.g., N.Y. FAM. CT. ACT § 1012(e)(iii) (2006) (defining abused child as child whose parent “commits, or allows to be committed an offense against such child defined in article one hundred thirty of the penal law; allows, permits or encourages such child to engage in any act described in sections 230.25, 230. 30 and 230.32 of the penal law; commits any of the acts described in sections 255.25, 255.26 and 255.27 of the penal law; or allows such child to engage in acts or conduct described in article two hundred sixty-three of the penal law. . . .”).
51. See, e.g., N.Y. FAM. CT. ACT § 1012(f) (2006) (defining neglected child as child whose physical, mental or emotional condition has been impaired or is imminent danger of becoming impaired as result of failure of parent to exercise minimum degree of care in supplying child with adequate food, clothing, shelter, education, medical care, and supervision, or child who has been abandoned).
52. See Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
53. See infra text accompanying notes 75-85.
54. See Dolgin, supra note 2, at 381-82.
55. Id. at 382.
56. Id.
57. Id.
58. See id. at 387 (quoting Woodhouse, supra note 17, at 997).
59. Id.
60. Woodhouse decries this conception of the child as dangerous. She argued Meyer and Pierce “constitutionalized a narrow, tradition-bound vision of the child as essentially private property” and “announced a dangerous form of liberty, the right to control another human being.” See id. at n.262 (quoting Woodhouse, supra note 17, at 997, 1001).
61. See DAVIS ET AL., supra note 61, at 157 (explaining Justice Douglas’s early recognition that children’s rights as autonomous legal persons “might . . . conflict with, and trump, the rights of parents to make decision about child rearing”).
62. See Dolgin, supra note 2, at 368.
63. See, e.g., Lambert v. Wicklund, 520 U.S. 292, 297 (1997) (upholding parental notification statute that included judicial bypass alternative); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 852 (1992) (upholding one parent consent requirement with effective judicial bypass procedure).
64. See DAVIS ET AL., supra note 61, at 1 (“The foundation of legal regulation of the family is the premise that parents are the ‘first best’ caretakers of children and that parents have an interest in this role that warrants legal protection. . . . State policies regulating parents thus are subject to constraint. . . . It is generally assumed that this basic arrangement . . . serves both the interests of children and society.”) 88 “[T]he benefits to children . . . stand as an independent justification for continuing to afford parents a tremendous degree of control.” Emily Buss, “Parental” Rights
65. VA. L. REV. 635, 656 (2002).
66. See Katharine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 VA. L. REV. 879, 902-11 (1984) (describing how parents are encouraged to do best job they can if they know that their decisions will not be unduly second-guessed and scrutinized by state).
67. See Maldonado, supra note 36, at 922 n.345 (quoting Janet Leach Richards, The Natural Parent Preference Versus Third Parties: Expanding the Definition of Parent, 16 NOVA L. REV. 733, 737 (1992)).
68. See Herbert, supra note 54, at 199 (quoting Joseph Goldstein, Medical Care for the Child at Risk: On State Supervention of Parental Autonomy, 86 YALE L.J. 645, 649-50 (1977)).
69. See, e.g., State v. LeFevre, 117 P.3d 980 (N.M. 2005) (reversing conviction for battery because act of grabbing child’s hand was isolated act of punishment that used only reasonable force and resulted in only temporary bruises).
70. See Herbert, supra note 54, at 207-08.
71. See id. at 206-07; see also Deana A. Pollard, Banning Corporal Punishment: A Constitutional Analysis, 52 AM. U. L. REV. 447, 454 (2002) (arguing that in both earlier and contemporary cases, Supreme Court has not shown much deference to parental actions that may harm children).
72. See Maldonado, supra note 36, at 882.
73. See Dolgin, supra note 92, at 365-69.
74. See Troxel v. Granville, 530 U.S. 57, 80 (2000) (Thomas, J., concurring).
75. See id. at 65 (providing heightened protection for right of parental autonomy); Herbert, supra note 54, at 207-08.
76. See, e.g., Barbara Bennett Woodhouse & Sacha Coupet, Troxel v. Granville: Implications for at Risk Children and the Amicus Curiae Role of University-Based Interdisciplinary Centers for Children, 32 RUTGERS L.J. 857, 869 (2001) (rejecting strict scrutiny as inappropriate for family law cases).
77. Statistics about the percentage of children who are the subjects of child welfare investigations are more readily available, but by logical inference, these statistics support the fact that only a limited number of parents are involved in the child welfare system. Out of every 1000 children, 48.3, or an estimated 3.6 million children, received an investigation by Child Protective Services (“CPS”) agencies during 2005. See CHILDREN’S BUREAU, U.S. DEP’T OF HEALTH & HUMAN SERVICES, CHILD MALTREATMENT 25 ( 2005) available at http://www.acf.dhhs.gov/programs/cb/pubs/ cm05/chapterthree.htm#subjects. Nearly 80% of the perpetrators of the cases determined to be child abuse or child neglect were the parents of the children. See id. at 70, available at http://www.acf.dhhs.gov/programs/cb/pubs/cm05/chapterfive.htm# character.
78. See, e.g., DOROTHY ROBERTS, SHATTERED BONDS: THE COLOR OF CHILD WELFARE (2001).
79. See Sandra T. Azar & Corina L. Benjet, A Cognitive Perspective on Ethnicity, Race and Termination of Parental Rights, 18 LAW & HUM. BEHAV. 249, 252-61 (1994)
80. See, e.g., infra Part II(B.1) (explaining how only certain cultures promote female genital surgeries which are outlawed as federal crime).
81. See Azar & Benjet, supra note 103, at 249 (arguing because of largely discretionary nature of termination decisions, they may be particularly vulnerable to biases based on race and ethnicity).
82. See, e.g., Nancy A. Wanderer & Catherine R. Connors, Culture & Crime: Kargar and the Existing Framework for a Cultural Defense, 47 BUFF. L. REV. 829, 839 n.36. (1999).
83. See id.
84. See PARENTHOOD IN AMERICA, supra note 109, at 154.
85. See Dolgin, supra note 92, at 355 (citing IRA MARK ELLMAN ET AL., FAMILY LAW: CASES, TEXT, PROBLEMS 5 (3d ed. 1998)).
86. See id.
87. See BUREAU OF LABOR STATISTICS, HOUSEHOLD DATA ANNUAL AVERAGES 213 (2007) (listing African Americans as only 8.1% of all judges, Asians as only 0.1%, and Hispanics or Latinos as only 9.1%), available at http://www.bls.gov/cps/cpsaat11.pdf.
88. See id. (listing African Americans as only 22.9% of all social workers, Asians as only 3.2%, and Hispanics or Latinos as only 11.9%). In addition, data from the EEOC confirm the low numbers of minorities amongst all types of counselors and social workers nationwide. Their numbers are based on the 2000 U.S. Census. See Equal Employment Opportunity Data, http://www.census.gov/eeo2000/index.html (last visited Apr. 8, 2008) (reporting that 69.1% of counselors are non-Hispanic white and 67.2% of social workers are non-Hispanic white); see also Webb, supra note 134, at 9 (citing study of social workers that found most are Caucasians of Anglo-European heritage).
89. See Azar & Benjet, supra note 103, at 251-52.
90. See Korbin, supra note 5, at 256.
91. See Korbin, supra note 6, at 3.
92. See id. at 4 (defining cross-cultural to include provision of services to ethnic communities in United States where there is remarkable cultural diversity).
93. See id. (“An understanding of both emic and etic perspectives is a necessity in sorting out the impact of the cultural and social context in which behavior, including child abuse and neglect, takes on meaning.”).
94. See id.
95. See id.
96. See id.
97. See id. at 8.
98. See id. at 5.
99. See id. at 8.
100. See id. at 4.
101. See CAL. WELF. & INST. CODE § 16509 (West 2006).
102. See Press Release, Cal. State Sen. Robert Presley, Senate OKs Presley Bill Making Sweeping Changes in Foster Care Programs (Jan. 29, 1982) (on file with author).
103. See Jay M. Zitter, Annotation, Power of Court or Other Public Agency to Order Medical Treatment over Parental Religious Objections for Child Whose Life Is Not Immediately Endangered, 21 A.L.R.5th 248 passim (1994).
104. See Memorandum from Willey Hausey, Deputy Dir., Legislation, Gov’t & Cmty Relations, Health & Welfare Agency, to Joan Bissell, Deputy Sec’y, Health & Welfare Agency 7 (July 6, 1982) (on file with author) (explaining how “[s]ection 58 . . . amends [the law] to protect groups of individuals whose child rearing practices may differ from the norm but do not constitute abuse or neglect . . . [and provides] parental protections regarding cultural and religious practices when removal of the child from the home is being considered”).
105. See Press Release, supra note 311.
106. See In re Phillip B., 156 Cal. Rptr. 48, 50-51 (Ct. App. 1979).
107. See, e.g., CAL. WELF. & INST. CODE § 300(b) (West 2006) (defining failure to protect).
108. See, e.g., In re Michael E., nos. J34181, J34182, & J34183, 2002 WL 382856 (Cal. Dist. Ct. App. Mar. 12, 2002) (refusing to recognize parent’s claim of Roma culture under 16509 as defense to termination proceeding); In re Tania S., 7 Cal. Rptr. 2d 60 (Ct. App. 1992) (rejecting parent’s claim of cultural practice and affirming order to remove children); In re Petra B., 265 Cal. Rptr. 342 (Ct. App. 1989) (finding that parent’s objection to medical treatment was not based on religious or cultural grounds). 109. Structured decision making is a product of the Children’s Research Center, which is a division of the National Council on Crime and Delinquency (“NCCD”). In 1986, NCCD worked with Alaska to devise a system that would bring structure to child welfare decisions. The result of these efforts was the original SDM model. See generally CHILDREN’S RESEARCH CTR., THE IMPROVEMENT OF CHILD PROTECTIVE SERVICES WITH STRUCTURE DECISION MAKING: THE CRC MODEL (1999), available at http://www.nccd-crc.org/crc/pubs/crc_sdm_book.pdf (introducing this new approach to decision making and risk assessment).
110. See Fontes, supra note 21, at 80-82.
111. See Email from Raelene Freitag, Dir. of Children’s Research Ctr., to Michael Schordine, Research Assistant, Professor Elaine Chiu (Feb. 8, 2007, 14:00:46) (on file with author) (announcing Connecticut, Massachusetts, and Louisiana as newest states to begin using or developing SDM).
112. See CHILDREN’S RESEARCH CTR., supra note 318, at 298.
113. See Wisconsin v. Yoder, 406 U.S. 205, 224 (1972).
