I.

The Status, Rights and Obligations of Children

A. An Introduction to the Juvenile Court System
1. Juvenile Court Jurisdiction
a. Every state has a trial court devoted to various proceedings
relating to children called the juvenile court
b. NO right to jury trial ALL bench trials in juv. Crt.
c. Juvenile courts typically have exclusive original
jurisdiction over (4 arms of jurisdiction):
1. Abuse and Neglect (civil not criminal) =
determines the states claims that a parent/custodian
1) has physically, emotionally or sexually abused
the child, or 2) has failed to provide the child w/
minimal level of support, education, nutrition,
medical or other care necessary for childs well-
being. [criminal A & N charges are heard in
criminal crt. NOT juv. Crt.]
2. Adoption = termination of the parent-child
relationship b/c child and natural parents
(stepparents parental rights are not terminated)
3. Status Offenses = sanctionable only b/c person
who committed it is a juvenile (not crimes for
adults) [Ex: truancy, runaways, ungovernability,
etc.)
4. Delinquency = when a juvenile allegedly
committed an act that would be a crime if
committed by an adult
d. Some states hear other various matters such as:
juvenile traffic offenses
guardianship proceedings
commitment proceedings for mentally ill or
seriously disabled children
proceedings for consent to abortion or underage
marriage
paternity proceedings
child support proceedings
e. Critics:
1. Juve. Crts are too easy on kids
2. Unified Family Courts (UFC)
a. Several jurisdictions have replaced juve. Crts with unified
family courts. (~ 20 states including MO)
b. Enables one specialist judge, working w/ social service
workers and other support personnel, to resolve matters
typically associated w/ distressed families.
c. Subject matter jurisdiction = 4 arms of jurisdiction + :

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 1. Divorce proceedings
2. Paternity suits
3. Criminal abuse and neglect
4. Domestic violence
5. Emancipation (marriage or military service)
6. Protective orders
d. In MO judge has 2 year term in UFC
e. Expense of creating a family court is not worthwhile in
smaller counties
f. Benefits:
1. Kids only testify once
2. Combines family problems
3. Simplifies the system
4. Judge really knows the family involved
B. The Laws Evolving Conception of Childrens Status, Rights
and Obligations
1. The Status of Childhood
a. Status of a child lasts until a person reaches the general age
of majority = 18 (in most states)
b. Alaska, Nebraska & Wyoming majority = 19
c. Supreme Court has held that equal protection requires that
the general age of majority be the same for boys and girls
(Stanton v. Stanton)
d. Used to be 21 but was lowered in 1970s
e. General age of majority does not determine adult status in
all circumstances (Ex: alcohol and some criminal
prosecutions or driving)
f. General age of majority ignores individual maturity
g. However, sometimes adult status is conferred by
individualized determination rather than applying the
general standard. [Ex: a court may find a pregnant child to
be mature enough to decide whether to have an abortion or
not] (see Bellotti v. Baird) [mature-minor doctrine]
h. The law views children as vulnerable, incapable and
needing protection in some circumstances, but as holding
const. rights, decisionmaking ability and personal
responsibility in others. (A person may be a child for one
circumstance but an adult for another).
2. The Parens Patriae Doctrine
a. = states limited paternalistic power to protect or promote
the welfare of certain individuals (like children) who lack
the capacity to act in their own best interests.
b. Can be used to justify all state actions (gives state
standing/authority)
c. Derived from English common law gave Crown ability
and responsibility to protect person deemed legally

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 incapable of caring for themselves (very narrow b/c
wealthy children only)
d. Came to US in colonial period (not as narrow)
e. 1890 Sup. Crt. held doctrine was inherent in the supreme
power of every state Mormon Church v. US
f. Guiding force behind 1st juv. Crt. in 1899
g. Allows state to pursue ends that would be impermissible
under normal police power b/c they are unrelated to any
harm to 3rd parties or to the public welfare.
h. Acting in this capacity, state should advance only the best
interest of the child (it should make decisions in the same
way that the individual would if fully competent).
i. Traditionally, courts have been reluctant to interfere in
family affairs
j. Reasons for low threshold to intervene:
1. uncomfortable invading family privacy
2. dont want to punish parents for low $
3. parents sub. Due process right weighs heavy
4. sometimes kids would be worse off in foster care
3. Police Powers
a. = states inherent plenary power both to prevent its
citizens from harming one another and to promote all
aspects of the public welfare.
b. In addition to parens patriae authority, state may regulate
children and family under its general police powers.
4. Enforcement Difficulties
a. Doctrine of const. privacy
b. Retaliation - Person enforced against may retaliate and
injure the very person the law is trying to protect
c. Psychological pressure sometimes the law cant regulate
the behavior of people who do not want to be regulated
d. Morality hard to enforce morality/social reform
5. Parents Interest
a. The 14th amend. guarantees that states will not deprive
their citizens of liberty w/o due process of law.
b. Parents have a substantive due process right to raise their
children free from unreasonable state interference (Meyer;
Pierce)
c. Crts. frequently call the interest fundamental, thought the
two seminal decisions used reasonableness scrutiny.
d. Lower crts have ordinarily applied rational basis, rather
than strict scrutiny to determine the strength of the state
interest in disputes w/ parents invoking due process.
e. Meyer v. Nebraska
(Gov. vs. Parents)
[Test = Rational basis scrutiny]

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 1. Struck down a statute that permitted instruction
only in English below the 8th grade b/c it violated
the due process liberty interest of the teacher to
teach in German, and of the parents to hire him to
do so. (Parent has the right to engage a teacher to
instruct their child)
2. Recognized a parents due process liberty interest in
establishing a home and bringing up children.
3. Recognized states parens patriae authority to
compel attendance at some school and to make
reasonable regulations for all schools and to
prescribe a curriculum for institutions which it
supports
4. Parents interest won - natural duty of the parent to
give his children education suitable to their station
in life
5. Crt. gave no regard to childrens interest
f. Stanley v. IL
1. cited Meyer to support proposition that following
the natural mothers death, due process and EPC
guarantee an unwed father a fitness hearing before
the state may deny him custody of his illegt. kids
g. Pierce v. Society of Sisters
(Gov. vs. Parents)
[Test = Rational basis scrutiny]
1. Crt. struck down a state statute that required parents
to send their children b/w 8 and 16 to public school,
and not private or parochial school.
2. Held: challenged statute unreasonably interfered w/
the parents interest to direct the upbringing and
education of children under their control
3. No question is raised concerning the power of the
state reasonably to regulate all schools, to inspect,
supervise and examine them, their teachers and
pupils; to require that all children of proper age
attend some school, that teachers shall be of good
moral character and patriotic disposition, that
certain studies plainly essential to good citizenship
must be taught, and that nothing be taught which is
manifestly inimical to the public welfare
4. Child is not the mere creature of the state; those
who nurture him and direct his destiny have the
right, coupled with the high duty, to recognize and
prepare him for additional obligations.
5. Crt. gave no regard to childrens interest
6. Childs Interest

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a. Used to be considered quasi-property
b. Children hold rights under fed. Const.
(after Meyer & Pierce)
c. However, childrens rights are not necessarily coextensive
w/ adults rights in every situation
d. 2 reasons why children received no explicit attention when
the fed. Const. was drafted:
1. never occurred to the Framers that children need
const. status
2. States rather than fed. gov. should regulate the
parent-child relationship
e. Prince v. Massachusetts
(Outlined childs interest)
1. Crt. upheld the custodial aunts conviction for
violating the state child labor law by permitting her
9 yr. old niece to accompany her and seek to sell
Jehovahs Witnesses periodicals on a public street.
2. * Prince FINALLY recognizes childrens 14th
amend. rights
3. Remains Sup. Crt. leading decision upholding state
authority under the fed. Const. to enact child labor
legislation
4. it is the interest of youth itself . . . that children be .
. . given opportunities for growth into free and
independent well-developed men and citizens.
5. Identified a private realm of family life which the
sate cannot enter
6. Two claimed liberties at stake. One is parents to
bring up the child in the way they see fit and to
teach him the tenets and practices of their faith.
The other freedom is the childs to observe these.
7. States authority over children is broader thatn
over the like actions of adults
8. It is in the interests of society to protect the welfare
of children
f. Brown v. Board of Edu.
(Gov. vs. Children)
(vindicated childrens substantive const. rights)
1. Unanimously held that racial segregation in the
public schools denies EP guaranteed by the 14th
amend.
2. Ps were children themselves (1st case where kids
were Ps before Sup. Crt. but had occurred in
lower courts)
3. Squarely established substantive rights for children.
(Cooper v. Aaron reiterated this)

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g. In re Gault
(Gov. vs. children)
(vindicated childrens procedural const. rights)
1. Established procedural rights for children.
2. * Biggest childrens rights case
3. Most celebrated juvenile law decision
4. Overcame the Const.s failure to explicitly mention
children Neither the 14th amend. nor the BOR is
for children alone (children are persons under the
14th amend.)
5. Held: a juvenile is entitled to several due process
rights during the adjudicatory phase of any
delinquency proceeding that might result in secure
detention.
6. Undermined states parens patriae authority to
exercise informal discretion in delinquency
proceedings (virtually free of procedural guarantees
available to adult criminal Ds).
h. Planned Parenthood v. Danforth
1. constitutional rights do not mature and come into
being magically only when one attains the state-
defined age of majority. Minors as well as adults,
are protected by the Const. and possess const.
rights
2. 2 reasons why const. rights of children are not = to
those of adults:
i. the peculiar vulnerability of children
ii. their inability to make critical decisions in
an informed, mature manner
iii. and the importance of the parental role in
child rearing (Bellotti v. Baird)
i. Tinker v. Des Moines School Dist.
(highwater mark for childrens rights but limited today)
1. Crt. upheld the 1st amend. rights of 3 students to
wear armbands in their public schools to express
their opposition to war.
2. students in school as well as out of school are
persons under the const. and do NOT shed their
const. rights to freedom of speech or expression at
the schoolhouse gate
3. On the other hand, school officials hold
comprehensive authority . . . consistent w/
fundamental safeguards, to prescribe and control
conduct in the schools.
4. BUT school officials do not possess absolute
authority over their students. Students are

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 possessed of fundamental rights which the State
must respect, just as they themselves must respect
their obligations to the state.
5. This right is limited only by that which would
materially and substantially interfere w/ the
requirements of appropriate discipline in the
operation of the school.
6. Right could be lost if there is a disruption or an
unreasonable threat of disruption
7. Pure vs. symbolic speech (pure comes out of mouth;
symbolic is other ex: armband)
j. Tinker made these cases legitable:
1. (Philips v. Anderson School Dist.) school
authorities are not required to wait until disorder or
invasion occurs held school officials properly
suspended middle school student who refused to
stop wearing his Confederate flag jacket to school
reasonably forsaw likelihood of disruption or
violence stemming from that activity
2. Hair length regulations: Crts divided
3. Dresscodes: often implemented for safety reasons
(tend to be upheld by crts. w/ a showing of good
reason)
4. (Goss v. Lopez) Crt. held that where a state
provides entitlement to a free public education,
public school students have a 14th amend. property
interest in that and a liberty interest in not having
their reputations sullied by suspension for < than
good cause.
When a student faces suspension for less
than 10 days requires an informal oral
or written notice of the charges against him
and if denied then an explanation of the
evidence the authorities have and an
opportunity to present his side of the story.
As a general rule notice & hearing should
precede removal of the student from school.
5. (Board of Edu. v. Pico) School boards removal
of a library book implicated a 1st amend right of the
students to receive info. and ideas but
acknowledged that the right is construed in light of
the special characteristics of the school
environment. The school board denies the right
when it acts with intent to deny students access to
ideas with which the board disagrees.

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 6. (NJ v. TLO) 4th amend. applies to students; the
validity of a school officials search of a student
depends on the searchs reasonableness under all the
circumstances, and not on probable cause.
7. (Bethel School Dist. V Fraser) student cannot
make a speech laced with pervasive sexual
innuendos or vulgar and obscene speech.
(distinguished from Tinkers political speech)
8. (Hazelwood v. Kuhlmeier) School may regulate
contents of its student-run newspaper as long as the
regulation is reasonably related to some educational
purpose.
Educators do not offend the 1st amend. by
exercising editorial control over the style
and content of student speech in school-
sponsored expressive activities so long as
reasonably related to concerns.
9. (Vernonia School Dist. v. Acton) [Extended TLO]
Upheld random urinalysis drug testing of its
interscholastic athletes. Court found the search
reasonable b/c its intrusion on student privacy was
negligible and the gov. concern was important
perhaps compelling and b/c student athletes only
had a decreased expectation of privacy.
Note for a school to institute a program
like this, the school must 1st prove there is a
drug problem and that the testing directly
relates to that problem.
10. (Board of Edu. v. Earls) [Expands Acton
substantially puts limits on Tinker] Rejects
argument that drug testing must presumptively be
based upon individualized reasonable suspicion of
wrongdoing b/c such a testing regime would be less
intrusive. Allows random suspicionless urinalysis
drug testing in all competitive extracurricular
activities, including non-athletic activities.
11. (Troxel v. Granville) [liberty interest here =
parents interest in care, custody, and control of
children] Presumption that fit parent will act in best
interests of child. Presumption is hard to rebut. (Fit
parents gets to decide whats the best decision re:
grandparent visitation.)
k. May Children Articulate their own interests?
1. Wisconsin v. Yoder
i. Held: Amish parents conviction for not
sending their child to school until age of 16,

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 violated the parents 1st amend. rights
(religion).
ii. [Maj] interests of children was not at issue
here b/c not relevant to crime (not an
element or defense that children did not
want to go to school)
iii. [Douglas Dissent] Children have a const.
due process right themselves to a hearing to
determine whether they wished to attend
school past the 8th grade. (perhaps could be
1st amend. right too)
iv. No Const. right for children to be hear.
v. Most states (including MO) grant broad
statutory rights for children to be heard even
when a child is not a main party.
vi. Even w/o statutes judge will probably still
listen to the children
2. Mature Minor Doctrine
i. Allows children to be heard and perhaps
prevail if a court finds them mature enough
even though theyre under the age of maj.
ii. sometimes crts consider the wishes of a
child who appears capable of articulating a
reasoned preference on matters important to
the childs welfare.
iii. Offers some flexibility in matters relating to
children below the general age of majority
(arbitrary line).
iv. Child must be very mature
v. If statute forces an age on states, then there
is usually not much room for this doctrine
vi. Types of cases for mature-minor doctrine:
1. abortion
2. guardianship/adoption
3. abuse & neglect
4.
vii. Things the crt. looks at:
1. Personal testimony
2. Childs education
3. Familiarity w/ the issue
(understanding)
4. Timing (cant wait until child turns
18?)
5. Childs responsibility
6. Childs age
7. Childs Lifestyle

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3. Constitutional Provisions
i. Execution of a child < 18 = violation of 8th
amend.
ii. BUT people who committed crimes while <
18 were executed after turning 18
iii. Policy: Juveniles (and mental retards) do not
have the capacity to understand why
4. Statutory Influence
i. Individuals w/ Disabilities Edu. Act
(IDEA)
1. Heavily litigated
2. Defines fed. right children have to a
free public education (till 1960s this
was not a guaranteed right to kids w/
disabilities)
3. Passed in 1970s
4. = fed. funding statute guaranteeing
the right to free appropriate
education for ALL children (widely
disputed what appropriate is)
5. Process:
a. Child must be diagnosed w/
disability recognized under
the statute
b. School must create an
individual educational
program for each child
(which can be very
expensive)
c. Parents have a unilateral right
to bring suit, but risk liability
if the court finds that the
action is not proper.
6. Statute encourages mainstreaming =
placing persons w/ disabilities in
regular classes w/ other regular
children
ii. Cedar Rapids School Dist. v. Garret
1. Issue: whether the definition of
related services requires a public
school dist. to provide a ventilator-
dependent student w/ certain nursing
services during school hours = YES
5. Parham v. J.R.

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 i. Crt. should give great weight to parents
preference when the parent opposes childs
wishes.
ii. Parents act in childrens best interest
iii. Most children are not capable of making
decisions about important matters such as
medical care
6. Bellotti v. Baird
i. Where a state requires a minor to obtain the
consent of one or both of her parents to an
abortion, the state must permit the minor the
opportunity, if she desires, to seek court
approval directly w/o first consulting or
notifying her parents.
ii. If she satisfies the court that she is mature
and well enough informed to make
intelligently the abortion decision on her
own, the court must authorize her to act w/o
parental consultation or consent. (If she
cannot satisfy this than she must persuade
the court that an abortion is in her best
interests and the crt. then must authorize the
abortion).
iii. Carved out a narrow const. zone of privacy
for mature minors.
7. In the case of Lori M.
i. Expands Bellotti to allow children the 1st
amend. right of freedom of association
(lesbian case)
8. In re: E.G.
i. A mature minor may refuse consent to
medical care.
l. An international-law basis for Childrens rights
1. UN convention on Rights of Children
i. Most widely and quickly ratified treaty in
the world
ii. Only 2 countries have not ratified it:
1. Somalia
2. US
iii. If ratified = supreme law of the land b/c
Supremacy clause
iv. No enforcement behind the treaty (no teeth)
7. Overall
a. Crts. use balancing/weighing process
b. Once Crt. finds Abuse & Neglect states parens patriae
interest trumps parents interest

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 c. The Triad = 1) child 2) state and 3 parents interests
d. Reasons
e. States interest must show rational basis
f. Parents interest under strict scrutiny
g. Factors to consider:
1. financial ability is decision based on $
2. age of child/level of maturity
3. prognosis/ability to recover (likelihood of success
and available alternatives)
h. Questions are fact specific b/c the standard is extremely
discretionary
i. In loco parentis Doctrine = (in place of the parent)
under common law, a person who assumes parental
obligations is treated as a parent for some purposes.
j. There is no coherent approach or philosophy (by leg. Or
crts) when it comes to addressing questions of childrens
rights
k. 4 different types of claims under the general rubric of
childrens rights:
1. Generalized claims against the world (e.g. right of
freedom from discrimination and poverty)
2. Right to greater protection from abuse, neglect or
exploitation by adults
3. Right to be treated in same manner as adult
4. Right to act independently of parental control
and/or guidance
l. Reasons for failure of childrens initiatives:
1. Children dont vote and no lobby has appeared on
their behalf
2. The reforms of one generation become the problems
to be reformed by later generations
3. Childrens needs are connected to large issues
(economy)
4. Culture and ideology produce great resistance to
state intervention in families
II. Abuse and Neglect
A. Introduction
1. Broad language in abuse and neglect statutes
a. Void for vagueness argument is usually a losing argument
(test = whether a person of avg. intelligence is on fair
warning as to whether his acts will constitute abuse of
neglect)
2. Bifurcated proceeding:
a. Liability
b. Remedy/resolution (temporary or permanent)

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3. Reasonably anticipated harm as well as actual harm can be a
basis for state intervention (b/c the state does not have to wait
until the child is actually injured before it can act).
4. Civil vs. criminal
a. Focus is on the condition of the child (NOT guilt/innocence
of accused criminal)
b. Criminal standard = beyond reasonable doubt
c. Civil Remedy = foster care (private family take in small #
of children and give them substitute care until child can be
adopted or sent home)
5. Once abuse & neglect is found, parens patriae (state power) wins
over parents due process right to raise their children how they
see fit
6. Children do not have a due process right to a good home.
7. Law does not normally interfere w/ intact families unless theyre
obviously under the threshold (Threshold of parenthood is quiet
low until there is a divorce)
8. Why is the threshold so low?:
a. Foster care limbo may be worse than kids staying w/ family
(state may not be able to do any better)
b. Parents due process right (Meyer & Pierce const. right
not to have unreasonable state interference)
c. General reluctance to invade privacy rights
d. Hard to get physical evidence
e. Vague line b/c discipline and abuse
9. Abuse = (beyond discipline) when some agency or crt.
determines its abuse
10. Poverty is NOT in itself a reason to remove children (but may be
a factor among others)
11. States have 4 sets of laws dealing w/ A & N:
a. Reporting statutes
b. Child protective statutes
c. Criminal statutes
d. Social services statutes
12. 3 Major systems in child protection:
a. Criminal Law
b. Child welfare system
1. tries to work w/ and help poor families in a way
short of removing the children permanently
c. Child protection system
1. MO Division of family services (DFS)
2. Began in NY
i. 1854 1929 orphan trains (NY Midwest)
ii. 1874 Mary Ellen brought in to court and
it was argued she deserved same protections
against abuse as animals. In response to

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 Mary Ellen case NY enacted a child
protection statute
iii. 1870s 1st child abuse laws (but not
enforced)
iv. 1880 1890 MO passes child protection
laws (not until WWII did MO have a
sustained child protection system)
v. 1899 juvenile court system began
3. Agency downfalls:
i. Poor organization (inadequate
communications)
ii. Admin. rules/regulations = barrier to
efficiency
iii. Crushing caseloads
iv. Informal turf wars
v. Complicated when criminal agencies get
involved
13. Abuse & Neglect creates psychological impacts in learning:
a. Short term difficulties; eg, poor school performance,
delinquency
b. Long term; eg, intergenerational problems, adult criminal
behavior
14. Why more cases of child abuse today?
a. Greater ease and acceptance of reporting
b. More children
B. Discovering Abuse and Neglect: Reporting Statutes
1. Child Abuse Prevention and Treatment Act (CAPTA)
a. Provided funding to the states for child abuse & neglect
reporting & investigation; required appointment of
guardians ad litem for abused/neglected children;
established National Center on Child A &N.
b. Broad definition of maltreatment
c. MO already had rudimentary reporting statutes
d. Comes from general proposition that most abuse and
neglect happen behind closed doors and these reporting
statutes make it easier for officials to catch it
e. New party of interest = reporting party (need protection if
wrong) [easier it is to file reports easier it is to be
wrong]
2. REPORTING
Mandatory Reporters vs. Permissive Reporters
Medical personnel anyone who is not a
Teachers mandatory reporter
Child care givers
Law enforcement personnel (cant be prosecuted for
Not lawyers Not reporting)

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 a. Identification of battered child syndrome in 1962 = catalyst
for reporting laws
b. 1967 - All states had adopted reporting laws (Congress
used power of the purse/fed. $)
1. Under fed. mandate state must maintain 24 hour
hotline
2. Statute says state must investigate each call w/in 24
hours of receiving report unless child is not coming
to school 72 hours (educational neglect)
3. DFS even follows up anonymous phone calls
4. Staff must decide whether allegations, if true, would
be legally sufficient to constitute child abuse. If
not, then story ends, if yes, then DFS investigates.
5. Welfare workers decide whether to bring a charge
of abuse neglect or both.
c. Distinguish b/w reported and substantiated cases (65%)
[30% receive significant intervention]
d. Why are these people mandatory?:
1. access to children
2. objective 3rd parties
3. professionals who should know about reporting
e. Permissive reporters are immune from liability (criminal
and civil) w/ the exception of bad faith reporters (divorce)
f. Note: mandatory reporting requires immediate report of an
incident; if its not possible, then one under duty to report
should do it ASAP. Crts have found liability for non-
reporting up to 15 yrs after the alleged act took place.
g. Mandatory: Prosecution for failure to report is rare
especially in non-medical fields (hard to determine whether
there was a reasonable belief)
h. Are baby-sitters mandatory reporters?
i. Central registry = typically accessible by gov. entities, day
care providers, youth programs, or other organizations that
engage employees/volunteers to work w/ children so they
can screen applicants.
1. Lists persons accused of A or N
2. Where state law permits such private access the law
creates a duty to investigate and failure to do so
may result in a negligence charge by the victim.
3. After placing the alleged abuser/neglecter on the
register, DFS may also want to bring a civil or
criminal proceeding
3. Valmonte v. Bane
(slapping daughter case)

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 a. County child welfare agency found that mother engaged in
excessive corporal punishment but family court dismissed
on the condition that she receive counseling.
b. Despite the dismissal, mother is listed in state Register
c. P claimed her 14th amend. due process liberty rights were
infringed (liberty interest in her reputation and she was a
child worker so she probably could argue a property
interest too).
d. P claimed the risk of erroneous listing was too great b/c the
Register retained reports supported merely by some
credible evidence (too low of a standard)
e. In MO standard = probable cause
f. In response to this case NY law now provides disclosure
to a potential employer may be made only after the listed
person has had an opportunity for an administrative hearing
and a showing that the report is relevant to the prospective
employment.
g. Hearings did apply some credible evid. Standard but now
test = probably cause (75% of names had to be removed
indicating mistakes in 1st hearing)
C. Limits on Intervention
1. In re Knowack
a. Child was placed in custody of Childrens Aid Society and
didnt relinquish custody Crt. holds periodic reviews of
private providers and now crt. decides when child goes
home (Crt. has power to restore kids back to parents)
b. Modern Rule: If A & N is found juvenile crts
jurisdiction attaches as soon as petition is filed until the
child reaches age of majority.
2. In re Juvenile Appeal
(Summary seizure case)
a. 9 mth old died and crt. found no clear and convincing evid.
Boy died from abuse or neglect
b. States interest in intervention is compelling only when the
children face serious physical illness, injury or immediate
physical danger.
c. Disposition phase is tougher b/c no burden to rely on and
big stakes
3. Doctrine of Transferred Abuse/Neglect
a. = abuse/neglect of one child can establish a large enough
danger for the other children that crt. doesnt have to wait
for harm to happen before taking away the other kids
b. abuse/neglect of one child = prima facie evidence or
provides grounds for removing other non-abused or
neglected children (especially if one child was severely
injured or killed.

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 c. If a parent has been convicted of murdering one child, the
conviction will be grounds for finding that the other kids in
the same household, under the same circumstances, are
abused and or neglected.
D. Patterns of Abuse and Neglect
1. Neglect
a. Parents are more open to help and cooperate w/ DFS
b. Usually involves nonfeasance
c. In re ST
1. Raised # conditions that appear frequently:
i. Skin problems (maybe due to poor hygiene)
ii. Sunburn, frostbite, ongoing diseases
iii. Malnourishment
iv. Lag in physical/mental growth
v. Inadequate medical care
vi. Physical appearance (deformity from drugs)
vii. Failure to provide education
2. Parents held responsible for failure to thrive (the
kids grew after being put in foster care)
3. In order to terminate parental rights (TPR) you must
exhaust all due process remedies
d. Failure to Thrive
1. = (aka growth deficiency) a condition in which the
childs weight and linear growth have fallen below
standard measures or have significantly dropped
without a physical cause.
2. To prove, State must document that child started to
grow normally but then failed to grow.
3. Children not treated can suffer permanent physical,
cognitive and behavioral impairment.
e. Emotional Neglect
1. Threat of emotional harm has been found sufficient
to justify intervention even if no actual harm is
shown in some states
2. Due to maternal (parental) deprivation
3. States disagree about when this may be used as a
predicate for intervention (some focus on condition
of child; others focus on parental behavior).
f. Newborns w/ positive toxicologies for drugs
1. Babies are > likely to be born healthy if their
mothers have prenatal care, receive good nutrition,
and refrain from alcohol and drugs.
2. Several states require hospitals to perform
toxicology tests on newborns and to report positive
results to child welfare agencies.

17
 3. Some states explicitly define neglect to include
prenatal exposure to a controlled substance (but not
alcohol and tobacco)
4. In other states, a positive toxicology for a controlled
substance alone does not prove abuse b/c it fails to
establish that the infant will be at substantial risk
(however, a positive toxicology report in
conjunction w/ other evidence would be sufficient
to support a neglect finding). (see Dante below)
5. Concern about regulating pregnant women = it may
deter many expectant mothers from seeking help
6. In re Dante M
i. Holding = More than a positive toxicology
is generally required for a neglect
determination (need other evidence in
conjunction w/ this) OR positive toxicology
report plus other evidence my support a
neglect finding.
7. South Carolina prosecuted mothers for taking drugs
during pregnancy (problem = whether fetus is a
child) *Most crts said legislature did not intend for
fetus to be included in term child
8. Prosecutions for abuse under this category usually
fail b/c most statutes aim to protect children (not
unborn children)
9. Criticisms:
i. Unequal punishment of women
ii. poor
iii. Discourages pre-natal care
iv.
10. Neglect proceeding is better route b/c mother may
be liable for neglect of fetus if:
i. Child is born
ii. Positive toxicology on child
iii. Some states include prenatal drug exposure
in definition of neglect
11. Difference b/w neglect & abuse w/ this category?
2. Abuse
a. Easier to prove (than neglect)
b. May get kids out of house quicker
c. Shuts parents out and puts them on the defensive (Dont
appreciate or want help from people calling them abusers)
d. Usually involves malfeasance.
e. Some parents target one child to abuse
f. Generally medical evidence must establish that the childs
injury was not accidental. (physicians testimony may be

18
 enough to authorize state intervention and removal of
custody)
g. Battered Child Syndrome
1. syndrome = collection of behaviors and/or
manifestations strongly indicating something
happened
2. Dr. C. Henry Kempe Article lead to Child Abuse &
Prevention Act (CAPA)
3. Characteristics that strongly suggest child abuse still
need medical evidence:
i. To help prove case in crt.
ii. Alert medical professionals
4. Things to look for:
i. Can occur in any age of children but usually
occurs in those under the age of 3
ii. Injuries in various stages of healing
iii. Marked discrepancy b/w clinical findings
and what parents say happened
iv. W/drawn child; noncomunicative; flinching
v. Unusual hour ER visits
vi. Parents reluctant to give info.
vii. Parents have bizarre reaction
viii. Child visits multiple hospitals
ix. Child suffers no new injuries while
hospitalized
5. NOTE: this syndrome may also be used as a
defense in a later proceeding in which the battered
child kills the battering parent
h. Shaken Baby Syndrome (identified in early 1970s)
1. Caused by parent who severely shakes an infant
2. No external injury is seen but the shaking can cause
death or severe brain injury
3. Possible results:
i. Blindness
ii. Broken neck
iii. Whiplash
i. Why parents abuse:
1. Correlation b/w past and present abuse
(intergenerational)
2. Correlation b/w low socioeconomic status and
abuse
3. Anger management problems
3. Corporal Punishment
a. Both criminal and civil law have traditionally found
reasonable corporal punishment of children justified and
thus not abusive.

19
b. MO has given public schools the choice whether to use
corporal punishment or not (the school must lay out its
chosen policy in writing) [US public schools may use
reasonable corporal punishment 8th amend. does not apply
to public schools and a notice and hearing are not required]
* Remember: public schools are more limited than private
schools; private schools stand in loco parentis over kids
c. Sweden outlawed parental corporal punishment in 1979.
d. Children have occasionally been successful in using
domestic violence statutes to secure a crt. order of
protection against an abusive parent.
e. Many parents justify abuse by saying its necessary and
appropriate discipline
f. A parents right to discipline their child is a privilege that
has been codified in most states. In MO and most other
states, the standard allows reasonable discipline.
1. Restatement (Second) of Torts provides a parent
is privileged to apply such reasonable confinement
upon his child as he reasonably believes is
necessary for its proper control, training, or
education.
2. Restatement factors in determining reasonableness
of punishment:
i. Whether actor is a parent
ii. Childs age, sex, and physical/mental
condition
iii. The nature of the offense and apparent
motive
iv. Influence of example on other children
v. Whether force/confinement is reasonably
necessary and appropriate to compel
obedience to a proper command
vi. Whether the punishment is disproportionate
to the offense
3. Some jurisdictions find abusive discipline on proof
of substantial risk of serious injury w/o having to
show any injury already occurred.
4. Other jurisdictions must show serious physical
harm or traumatic abuse
5. IN re C. children
i. Mother was disciplining kids by use of a belt
and kid had belt marks on his face mother
intended to continue this form of discipline
(no room for compromise)
ii. Remedy = remove kid into foster care
iii. Factors to consider:

20
 1. whether incident is likely to occur
again
2. whether abuse has been found
3. likely to cause serious/permanent
harm
4. pattern of conduct by parent
5. mental stability of parent (can you
trust them)
6. Ravoin v. ND Dept. of Human Services
i. Parents were spanking children on buttocks
w/ plastic spoon or leather belt
ii. Crt. found no abuse (statute = someone who
is suffering from serious physical harm)
4. Sexual Abuse
a. Elements
1. Sexual activities involving children; AND
2. An abusive condition such as coercion or a large
age gap b/w participants, indicating a lack of
consensuality.
b. Failure to protect
1. Parents are responsible for protecting their children
from harm when they are able to do so.
2. A parent who fails to intervene to protect a child (or
who takes insufficient action) can be adjudicated
neglectful, even though the parent was not the
actual abuser of the child. (And can have the child
removed from their care or perhaps have parental
rights terminated when the abuse is severe).
3. This is a type of neglect but usually arises in abuse
cases.
4. In re T.G.
i. Crt. upheld termination of parental rights of
the mother who did not physically or
sexually abuse her daughters, but allowed
them to travel with a known sexual abuser
and she knew the stepfather was convicted
of child molestation and was abusing the
daughters but still chose to live with him and
expose the girls to him. She even tried to
stop the girls from telling authorities.
ii. Crt. said leave husband or leave children
(she chose husband/stepfather)
iii. Crts authority to do this comes from right to
protect childrens safety
iv. Civil cases purpose is not to punish parent
but to protect best interests of children.

21
 v. Took 4 years to terminate parental rights
here b/c father voluntarily relinquished his
rights and mother who wasnt abuser was
only parent left and children were bonded to
her if children had been removed to foster
care, rights would have been terminated
sooner.
c. Proving the case
1. Child sexual abuse is difficult to prove b/c lack of
physical evidence and of adult witnesses.
2. Symptoms of sexually abused children:
i. Age inappropriate knowledge or sexual
behavior
ii. Enuresis in toilet trained child
iii. Regressive behavior and w/draw
iv. Severe temper tantrums or depression
inappropriate for a child of like age
3. Problems proving sex cases:
i. Usually, only witness is victim and abuser
ii. Kids dont make good interviewees or
testifiers (dont know what to believe)
iii. Burden of proof is high (beyond reasonable
doubt)
iv. Lack of physical evidence
v. False accusations (by kids or adults)
4. Child witness protection statutes:
i. MO applies to both criminal and civil
proceedings (Threshold if testifying in
open crt. would be too hard for child, can
use closed circuit t.v. system so D lawyers
can still cross-examine but child is not in
same room as perpatrator) [Motion to invoke
substitute proceedings]
ii. Must show child is nervous b/c of being in
same room as offender
iii. MO any kid victim is competent to testify
iv. Some states only allow this in criminal cases
v. Jurisdictions have amended their evidence
rules (made an exception) to facilitate use of
childs out-of-crt. statements (otherwise =
hearsay issue)
vi. Other way to get evidence in = sufficient
corroboration (need only very little due
process 6th amend.)
5. In re Nicole V.

22
 i. Statute = unsworn out-of-crt. statements of
child victim, if corroborated, will support an
abuse or neglect finding
ii. Crt. held that corroboration may include any
other evidence tending to support the
statements reliability, such as:
proof that the parent abused another
child
Injuries were abusive type
Parent abuses drugs/alcohol to severity
Hospital/agency reports suggesting
abuse
Evidence of parents emotional health
Admissions by parent even if recanted
Evidence child was afflicted w/ STD or
became pregnant
d. NOTES:
Most sexual abusers of children are known to the victim
before the attack
Sexual abusers are more likely to be men than women
Boy victims may be less likely to report b/c shame
Evidentiary difficulties may lead the crt. in a civil
protective proceeding to base its decision on other
grounds (such as parental unfitness)
Civil cases proof is easier b/c focus is on child and
no Confrontation right in civil proceedings
There are often parallel civil & criminal proceedings
E. Remedies
1. Must use least restrictive alternative consistent with all the
interests involved (child, parents & state)
= protect child; change behavior of parent and no more
(Least restrictive most restrictive)
a. Home custody/supervision
Used most often
W/ or w/o conditions
b. Foster care
90% parent applicants accepted
May be kinship or 3rd party
Shortage of 3rd party
Some states do NOT fund kinship care
Problems w/ Kinship care:
Easy access for abusive parent
Intergenerational abuse
Child limit = 6

23
 Temporary
Non-secure
c. Institutionalization of child
Secure = cant leave w/o permission OR non-secure
(day-treatment)
Mandate = deinstitutionalization for non-status
offenders
Some children might needs some of these treatment
centers for physical/emotional reasons
Overall institutionalization is not good for children
d. Physical/mental exam of child
e. Termination of Parental rights (TPR)
Permanent
Grounds for TPR:
Course of conduct in parental record
Sexual abuse
See more below
2. NOTES
Judge can require parent to provide day care for
monitoring purposes
Some crts. make mother/father chose b/w abusive
significant other and kids (may take away parental
rights not a constitutional violation)
Not a violations of freedom of assoc OR
fundamental right to marriage, etc.
F. Duty to Investigate
1. Deshaney v. DSS
a. Issue = (14th due process) P claims deprived of liberty b/c
DSS failed to intervene to protect him against risk of
violence by his father
b. Sup. Crt. held due process does NOT impose an affirmative
obligation on states to protect persons, including children,
from harm.
c. Social service agency can NOT be sued if child was injured
by private actors (can only be sued if child was injured by
state actor)
d. Majority Policy considerations:
1. child welfare authorities would err on side of
removal
2. financially destroy the system
e. MO mere failure to follow up hotline call does not
warrant remedy
f. After this case children harmed by state failures only have
limited remedies
G. The Prosecutors Role

24
 1. A prosecutor may take on different roles, depending on statutory
mandate (may represent state itself or state agency)
2. System works best if there is free-flowing exchange b/w
prosecutor and other state entities
3. Diva P. v. Kaufman
a. Held that legislature made the DSS the states
representative
b. The county prosecutor thus, did not have authority to
litigate A & N independently of DSS
H. The Reasonable Efforts Requirement
1. = Agency must make reasonable efforts to unify family or keep
family together
2. If abuse is too severe no efforts may be reasonable
3. This is required by states b/c parents have a substantive due
process right and w/o this requirement there are const. problems
4. In re N.M.W.
a. Crt. found that chronic unsanitary conditions of apt. were
sufficient basis for a neglect adjudication b/c health hazards
and crt. permitted agency to remove child as preventive
measure.
b. State was not required to provide a cleaning service which
would have cost < foster care. (Dissent argued: If brought
in housekeeper would have been reasonable efforts)
c. Murphy case state did have to bring in housekeep
instead of TPR
5. 1980 Adoption Assistance & Child Welfare Act (AACWA)
a. required states to implement procedures to keep family
together
b. strenuous efforts required before children can be removed
& parental rights terminated
c. Congress decided children are best off at home
d. (Very controversial)
6. Adoption and Safe Families Act of 1997 (ASFA)?
a. Reasonable efforts arent required under certain sets of
expectations, such as when the parent subjects the kid to
aggravated circumstances in the home, or commits a
heinous crime against another child in the home.
7. MO lays out reasonable efforts requirements but what these
are vary from case to case
I. Termination of Parental Rights
= natural parent-child relationship is completely severed
A.k.a death sentence of A & N law
Custody is usually transferred to DSS agency or new adoptive
parent (Goal = free child for permanent placement)
Natural parents no longer have const. rights (Foster/Adoptive
parents get const. rights)

25
 Grounds for Termination:
Parents have failed to take corrective actions
Parental absence/abandonment (token efforts arent
enough) [may include parents long term incarceration]
3 Ways to show abandonment in TPR cases:
1) leave child w/ no intent to retrieve and no
ID
2) Desert family and not come back
3) Willful failure to pay child support
Ayers case
Facts: mother beaten bad by dad; leaves kid
w/ friend; gone for 8 years; sends $ and tries
to see her; no intent to abandon
Holding: Crt. found no abandonment b/c no
intent
Abuse of a sibling
Parents mental incapacity (not typically a per se basis
for termination but does not justify a lesser level of care
by the parent focus is on parents ability to care not
the disability)
Murder by the parent (even aiding and abetting, etc)
TPR = bifurcated proceedings (w/ childs interests only being
considered in dispositional phase)
1. Consensual Termination vs. Voluntary
a. Consensual
1. = parent agrees to terminate parental rights
2. * only operative if crt. finds its in best interest of
child
3. Emancipation denied if child cannot fend for
theirself
4. Sometimes used for step-parents to take over
b. Voluntary
1 of 2 events must occur:
1. One serious event (ex: rape, death, etc.)
2. Course of persistent A & N (pattern)
2. Due Process Protections for Parents
a. Lassiter v. DSS
1. Crt. held due process does not required
apportionment of counsel for indigent parents in all
termination proceedings but rather permits the trial
crt. to determine the need on a case by case basis.
2. MO already had a statute that required right to
counsel for indigent parents and in ad gaurdium
cases
b. Santosky v. Kramer

26
 1. Held due process permits a state to terminate
parental rights only where a ground for termination
is established by at least a clear and convincing
evid. standard of proof [75%] (higher than ordinary
civil preponderance of the evid. standard [50.1%]).
2. MAJ making it more difficult to terminate
parental rights
3. W/ just preponderance standard too much risk of
erroneous deprivation (society not willing to
tolerate)
c. M.L.B. v. S.L.J.
1. Crt. held due process and EPC ensure a right to
appeal TPR case even though indigent parent could
not pay court fees.
3. When Should Parental Rights be Terminated?
a. Champagne v. Welfare Division
1. 2 phases to TPR:
i. adjudication (who did what to whom)
ii. disposition
2. Have to show termination is in best interests of
child plus a ground (ex: single event/act)
3. State interest becomes compelling when situation
for child becomes hazardous
4. MO state has to show reasonable efforts to
reunify family 1st
5. Murphy case (see above)
b. In re Jeffrey R.L
1. Parents may also be found neglectful, and may even
suffer TPR if fail to cooperate w/ state in abuse
investigation which leaves perpetrator unidentified
and child at risk of future harm
c. In re Adoption of B.O.
J. Social Class, Ethnic and Racial Bias
1. Overview
a. There is disproportionate confinement (poor/minority
families are over represented in A & N families)
2. Understanding Cultural Context
a. Japanese lady drowning child b/c family shame
b. Leaving kid outside restaurant in NY city
III. Foster Care
A. Intro & Foster Care Placement Structure
1. Intended to be temporary (either return to parents or adopt)
2. Includes placement in:
a. Private homes licensed & supervised by state
1. Minimal stipend
2. Limit on # of children

27
 b. Group homes
c. Institutions
d. Kinship care
1. Fed. statutes encourage this (requires states to give
preference to it)
2. Some states fund completely, some partially, some
not at all
3. May have less oversight
3. State usually has custody but parents retain right to make
significant decisions (e.g. medical or adoption)
4. Foster relationship is regulated by:
a. State law
b. Agency rules
c. K
5. Temporary review statutes (MO review every 6 months in
juvenile crt. proceeding)
B. The Courts Role in Permanency Planning
1. Adoption and Safe Families Act (ASFA) imposes time limits
on the states to expedite permanent placement decision-making.
a. W/in 12 mths of when child entered foster care, crt. must
hold a permanency hearing to determine the placement plan
for the child (family reunification or adoption)
b. The child is considered to have entered foster care on the
earlier date of:
1. 1st judicial finding of A or N; or
2. Date 60 days after child was removed
c. Allows state to us concurrent planning (plan to reunify
and plan to adopt at same time in case one falls through)
d. Requires states to initiate TPR proceedings for a child who
has been in foster care for 15 of the last 22 mths (w/ some
exceptions ex: state may not TPR when kinship care)
2. Crt. is suppose to take an active enforcement role:
a. State making reasonable efforts to reunify?
b. Foster family abiding by state requirements?
3. Criticisms of Fed. permanency planning model:
a. It exaggerates the harms caused by foster care
b. Successful reunification often requires long-term services
c. TPR may harm children by depriving them of contact w/
their parents and many are never adopted
d. Disproportionate racial composition
C. The Childs Right to a Family
1. Smith v. OFFER
a. Alleged that procedures governing removal of children
from foster homes violated due process and equal
protection [Foster parents (Ps) claim they have a const.

28
 right to family preservation after having the child for < 1
year)
b. Parents wanted a pre-removal hearing instead of a post one
c. Crt. held foster family could not be dismissed as a mere
collection of unrelated individuals and that it did not have
to decide this question based on due process clause
foster parents do not have aright to a hearing before the
removal
2. Procopio v. Johnson
a. Generally the states contractual promises are not
sufficiently explicit or binding to establish a liberty interest,
even when foster parents have cared for a child for a
number of years and expected to adopt the child. (foster
parents have no liberty interest)
D. The Childs Right to Services and Protection from Harm
1. Suter v. Artist M.
a. Issue = do private individuals have the right to enforce by
suit, a provision of the adoption act (AACWA)?
b. Held = NO, 42 USC does not confer an enforceable right
on its beneficiaries nor an implied cause of action on their
behalf (Private parties cannot sue agency for failure to
make reasonable efforts, etc.)
2. Private parties may sue if state violates CAPTA (which requires
states to swiftly investigate A & N calls)
3. Marisol v. Giuliani
a. The 14th amend. does not require state to provide foster
children w/ an optimal level of care or treatment.
b. To violate a foster childs substantive const. rights, the
conditions and duration of foster care must be so
inadequate as to violate the foster childs right to be free
from harm (incl. Right top be w/ family)
4. LaShawn v. Kelly
a. A crt. order in response to a claim of const. violation is one
that may be enforced by a threat of contempt.
E. Liability for Harm
1. Kara B. v. Dane Co.
a. Ps seeking damages not systematic change
b. Nobody was fighting over private rights of action b/c here
raising a common law negligence claim not using statute
c. Crt. looked at 3 major cases:
1. Estella v. Gamble
i. Minimal level of protection while in state
custody in prison
2. Romeo
i. Patients in state custody have due process
rights

29
 3. Deshany
i. State does not have a due process obligation
to protect kids not in state care (maybe a
different answer if kid IS in state
care/custody)
d. D officials claimed 1983 qualified immunity = shields
public officials from civil liability unless their conduct
violates a persons clearly established constitutional or
statutory right. (Crt. rejected this argument crt. found a
clearly estb. Cont. right to a safe and secure foster
placement and held that a reasonable public official would
have been put on notice that violation of the right could
lead to liability).
2. Standard of care = professional judgment would a competent
professional know there was a problem (objective test) [Liability
would be imposed only when the professionals decision is such
substantial departure from accepted professional judgment,
practice or standards as to demonstrate that the person
responsible actually did not base the decision on such judgment]
3. Crt. rejected the deliberate indifference standard know kids
were in danger and say I dont care(subjective test)
F. Foster Parent Liability
1. A parent is NOT liable for a tort his kid committed absent
statutory provisions (most states have imposed such liability w/ a
$ limit)
2. There is generally no foster parent liability.
3. Only a few crts have imposed a gross negligence standard on
foster parents, via the parent tort liability statutes.
4. Most crts hold that state is NOT responsible for harm caused by
foster parents b/c no agency, respondeat superior, or vicarious
liability arises from state-foster parent relationship.
G. Indian and Child Welfare Act (ICWA)
1. Order of placement for adoption:
In the absence of good cause to the contrary:
a. W/ member of childs extended Indian family
b. Other members of childs tribe
c. Other Indian families
2. Order of placement for foster care:
a. A member of childs extended family
b. Foster home licensed, approved or specified by childs tribe
c. An Indian foster home licensed or approved by reg. Auth.
d. Institution approved by tribe or operated by Indian org.
H. Racial and Religious Matching
1. 1996 Statute cant deny a placement solely based on race but
it may be considered under childs best interests (requiring same-
race placement violates the const.)

30
 2. Most states consider parents religious preferences in making
foster placements but not required (the free exercise rights of
parents are observed as long as state makes reasonable efforts)
I. Institutional care
1. Today children are not placed in institutions for A & N unless
theres a good reason for it (Ex: group homes, hospitals, etc)
2. Tend to be preserved for special need children
J. Guardianship
1. Not funded
2. ASFA permits this as part of the permanency plan
3. Guardians do not have to submit to state rules
4. Like substitute parents b/c have complete control
5. Guardians assume legal and physical custody
6. Used as an alternative to adoption when a child has special needs
to the parental ties need to be kept for some reason.
7. Criminal Abuse and Neglect
K. Abuse, Neglect and Child Endangerment
1. Intro
a. Focus is on guilt/innocence of D (accused abuser)
b. Cultural defense may arise
c. Mere possession of drugs is not endangerment but
possession + more is endangerment (ex: taking drugs while
w/ child = possession + more endangerment)
d. Factors to consider when determining whether to prosecute:
1. Degree of harm to child (severity of injuries)
2. Number of occurrences (is it a pattern of conduct)
3. Whether parents will cooperate
4. Strength of the proof
5. Community outrage
6. Remedys likely effect on family
7. Age and understanding of child
e. 2 Types of Statutes:
1. General criminal statutes
(ex: murder, assault, etc.)
2. Statutes specifically relating to only child victims
(ex: endangering the welfare of a child, etc)
f. Remedial statutes are liberally construed
g. Some endagerment statutes reach non parents (MO)
h. Some endangerment statutes have various degrees (1st, 2nd)
2. Void for Vagueness Doctrine
a. Endangerment statutes then to be very broad to enable
authorities to prosecute a wide range of child mistreatment.
b. Due process requires that a penal statute define the
criminal offense w/ sufficient definiteness so that ordinary
people can understand what conduct is prohibited and in a

31
 manner that does not encourage arbitrary or discriminatory
enforcement.
c. If they are trying to fit conduct under a broad statute can
use this const. challenge (usually these challenges fail)
3. Parental Liability Statutes
a. = effort of legislatures to punish parents for the criminal
misconduct of their children
b. policy = deal w/ parents who neglect their kids
c. All states have civil liability statutes w/ a cap on the
liability
d. Usually charge parents w/ neglect but may charge them
with endangerment or contributing to delinquency statutes.
e. Even in the absence of parental liability legislation, parents
can be prosecuted arising from their childrens criminal
conduct if the parents are accomplices, co-conspirators, or
if they knowingly profit from the crime.
L. Sexual Abuse
1. Statutory Rape (vs. Forcible rape)
a. Does not include force as an element
b. Key element = victims age
c. Victim is deemed incapable of consenting as a matter of
law
d. Courts have rejected perpetrators challenges to statutory
rape statutes grounded in constitutional privacy rights
(Ferris v. Santa Clara County)
e. Prosecution can also occur now when perpetrator and
victim are same age (can be charged w/ raping each other)
f. Strict liability offense
g. MO child protection statutes apply in criminal & civil sex
cases
h. A person convicted of statutory rape may have parental
right terminated (and if teacher school board may be
sued for negligence)
2. Gender Neutrality
a. Gender neutrality laws now so men can rape men
b. Older women can rape younger boys (victim can be male)
3. Mistake of Age
a. Regardless of the victims appearance, sexual
sophistication, verbal misrepresentations or Ds efforts to
learn the victims age mistake of age is no defense (in
almost all states)
b. In some states it is a defense if its a reasonable mistake
Marriage
c. Marriage is a defense to statutory rape and other non-
forceable sex crimes
d. But marriage is NOT a defense to rape

32
 e. Child Pornography
4. NY v. Ferber
a. Child porn = depictions of sexual activity involving
children (not just mere nudity)
b. Production and dissemination of child porn is a form of sex
abuse.
c. Held that child porn, like obscenity, is unprotected by the
1st amend.
d. 1st amend. does protect depictions of adults engaged in
sexual activity (unless obscene)
e. Granted states right to regulate child porn b/c of its effect
on child performers
f. Doesnt cover virtual porn of nonexistent performers
IV. Regulation of Childrens Conduct
a. Child Labor Laws
2. Intro
a. Regulate children in way Congress could never regulate
adults
b. 1st sustained nationwide regulation on children
c. Age discrimination claims based on the EPC most often fail
b/c age discrimination is not a suspect class and state only
has to satisfy the rational basis test (scrutiny)
d. Some CLL expressly exempt minors who are married or
emancipated
3. Sources of Regulation
a. Parens patriae doctrine allowing states to protect kids
b. 3 levels of regulation:
1. Federal level (Fair Labor & Standards Act [FLSA]
w/ administrative rules and regulations)
2. State regulations
3. Municipalities (local regulations)
* If there is any inconsistency apply the strictest
rules (no federal pre-emption)
c. US v. Darby
1. Sup. Crt. unanimously upheld FLSA
d. Prince v. Mass.
e. Sup. Crt. upheld general state authority to enact child labor
laws under state police power
4. Hazardous Occupation
a. State law typically prohibits employment of children under
18 in hazardous occupations
5. Work
a. Acts typically exempt agricultural work, work for parents,
or work in family-owned/operated business.
b. Performance as a child actor/model may also be exempt

33
 c. Some state child labor laws state whether children may
perform as volunteers
d. Cant beat CLLs by having a child work and then not pay
them
6. Hours and Working Conditions
a. CLLs regulate the max # of hours children can work and
how late on school nights during school term
b. Several CLLs also regulate the childrens working
conditions
c. CLLs also typically authorize a state agency to conduct
periodic inspections of places where children are employed
7. Work Permits
a. Most CLLs require children to secure work permits or
certificates, usually from school official.
b. The applicant must present proof of age and description of
the prospective employment.
c. The childs parent or guardian must also provide written
consent.
d. FLSA does not require these only requires employer
prove child is employed in accordance w/ the act
8. Criminal & Civil Penalties
a. CLLs impose these on employers and sometimes parents
b. Virtually no CLLs impose criminal punishment on kids
9. In Henderson v. Bear
a. Workers comp acts may provide only meager recovery for
death or serious injury suffered by unlawfully employed
children
b. Alcohol Regulation
10. Intro
a. Historically children could drink
b. Became a problem after Revolutionary War
11. Minimum Drinking Age
a. In 1970s many states lowered the drinking age to below 21
b. In 1980s Congress enacted the National Minimum
Drinking Age Act which sought to encourage a uniformity
by w/holding %s of fed. hwy. $ from any sate in which
the purchase or public possession . . . of any alcoholic
beverage by a person less than 21 is lawful (SD v. Dole)
1. Crt. upheld this as a proper exercise of Congresss
spending power
12. Exemptions
a. Many state alcohol control laws do exempt parents who
provide alcohol to their underage children
1. Parent may face civil liability if child causes injury
to himself or others
b. Clergy are exempted if part of religious ceremony

34
 c. Physicians are exempt if prescription
13. Zero Tolerance Laws
a. 1995 Congress enacted zero tolerance statute
b. Encouraged states to enact and enforce legislation that
considers an individual under 21 who has a blood alcohol
concentration of 0.02 % or > while operating a motor
vehicle to be driving while intoxicated or under the
influence. (~ 1 glass of beer or wine)
c. Has survive EPC challenges b/c its rationally related to a
legit state purpose of reducing # of teenage drinking
fatalities and protecting general public.
14. Host Liability
a. Persons who provide or serve alcohol to underage drinkers
may face tort liability
b. > 35 states have dram shop or social host acts in which
providers are strictly liable for death or injury caused by an
underage or visibly intoxicated drinker.
1. In some states commercial provider must have
known or should have known consumer was
underage or intoxicated at time
2. Some states prohibit dram shop and social host
acts entirely
c. Tobacco Regulation
15. As many as 90% of adults who smoke started as minors (If you
dont smoke by 18 you probably never will)
16. Until 1992 MO was one of the only states that didnt have a sale
of tobacco to minors statute, b/c of the strong tobacco lobby
17. In 1992 Congress required states to enact legislation restricting
the sale and distribution of tobacco products to minors as a
condition of receiving federal substance abuse prevention and
treatment block grants.
18. Enforcement doesnt work very well (ex: vending machines)
19. National Tobacco Settlement (Nov. 1998)
a. Driving Privileges
20. 3-6 am = high time for abuse
21. All states establish a minimum age at which persons may secure
licenses to drive various types of vehicles
22. Car usually b/w 15-17
23. In the absence of a statute, the mere existence of a parent-child
relationship does not make a parent liable for the childs
negligent operation of a motor vehicle, even if the parent owns it
24. Some states apply the family purpose doctrine = where a motor
vehicle owner maintains the vehicle for the familys pleasure use,
the doctrine imposes liability on the owner for damages arising
from negligent operation by any family member who uses it w/
the owners express consent (including the children).

35
25. Many states have enacted abuse and lose laws penalize kids
for certain driving conduct
a. Juvenile Curfews
26. Crts have upheld a variety of local curfew like ordinances
designed to regulate childrens public activities.
27. Hutchins v. D.C.
a. Crt. upheld Districts general juvenile curfew ordinance
b. Curfew laws are measured by intermediate scrutiny (A
curfew must be substantially related to an important
governmental interest)
28. In the absence of an emergency, states may not constitutionally
impose a general curfew on adults.
a. Status Offenses
29. Nature of Status-Offense Jurisdiction
a. = conduct sanctionable only where the person committing
it is a juvenile
b. 3 Status Offenses:
1. Ungovernability
i. = crt. may find child
ungovernable/incorrigible if the child
habitually refuses to obey the parents
reasonable commands and thus is beyond
their control.
2. Truancy
i. = habitual absence from school of a youth
subject to the compulsory school act.
3. Runaways
i. A crt may bootstrap a runaway into
delinquency proceedings by slapping a
contempt charge on the runaway who wont
obey the crt order to stay at home
c. Overlaps w/ delinquency statutes so state may bring a
status offense charge for same acts that would support
delinquency proceedings but would be responsible for
meeting a lower standard of proof.
30. Deinstitutionalization Mandate
a. = children who are not criminal wrongdoers (status
offenders and A&N children) may NOT be held in secure
detention.
b. Exception: permit secure placement of accused status
offenders for a max of 24 hours, excluding
weekends/holidays, to permit identification, investigation,
release to parents, or transfer to a non-secure facility or to a
court. A second 24 hour period may follow an initial court
contact.
c. Get around it by:

36
 1. charge kid w/ petty crime
2. runaways 1974 Juvenile Justice and
Delinquency Prevention Act = intended to prevent
incarceration of kids for status offenses
To get fed $ must meet 4 mandates:
i. First 3 deal w/ delinquency
ii. Deinstitutionalization mandate
V. Delinquency
a. Introduction
2. Juvenile crime in America reached its peak in 1994 and has been
declining since.
3. MO delinquency age = 17
4. Most juvenile offenders are males 15 24 yrs old
5. A small % of juveniles commit a large % of the crime.
6. Homicides committed by juveniles occur in narrow geographic
regions
7. 1967 Crt. said sending kid to reform school = taking childs
liberty interests away.
8. Historical objectives:
a. Individualized rehab and treatment
b. Informal procedure
c. Confidentiality
d. Separate incarceration
9. Modern objectives:
a. Accountability
b. Enable juvenile to become capable, productive, and
responsible citizen
c. Ensure the safety of public
10. Delinquency cases purpose = to rehabilitate child not to
stigmatize
11. Civil proceeding
12. Today what child did does count (did not use to matter)
a. Juvenile Court as an Institution
13. Right now they are confidential but theres legislation to try and
open up juve. Crts.
a. Contours of Delinquency
14. Infancy Defense
a. Common law presumed that children under 7 were w/o
criminal capacity and created a rebuttable presumption of
criminal incapacity for children b/w 7-14. (over 14 =
presumptively capable)
b. Prosecutor can rebut the presumption by demonstrating that
the child knew what he/she was doing when committing the
act and knew the act was wrong.
c. Factors crts weigh to determine whether juvenile knew
wrongfulness of the act:

37
 1. nature of the crime
2. childs age and maturity
3. whether the child showed a desire for secrecy
4. whether child wanted victim to tell
5. prior conduct similar to that charged
6. consequences attached to the conduct
7. acknowledgment that the behavior was wrong and
could lead to detention
d. Some states w/hold the defense on the grounds that
delinquency proceedings are rehabilitative rather than
punitive.
e. Other states recognize the infancy defense in delinquency
proceedings on the grounds that confinement or other
sanction is inherently punitive and that a juvenile should
not suffer a delinquency sanction w/o proof crime was
committed.
15. Insanity Defense
a. MNaghten test = an accused is insane and not criminally
responsible if when committing the act charged or
omission:
1. he was suffering from such a mental disability that
he did not know and could not distinguish right
from wrong OR
2. he was suffering from such a disability of reason or
disease of the mind that he did not understand the
nature or consequences of the act or omission.
b. Where the criminal code and rules are silent crts
disagree about whether the defense is available in juvenile
court as an essential element of due process (Chatman)
16. Transfer
a. All states have transfer (or waiver) statutes that regulate
when a juvenile should be tried in an adult court
b. MO children over 12 can be transferred to adult crt.
except for 7 (deadly sins) most serious felonies no
minimum age
c. 2 Types of Transfer Statutes:
1. Automatic
2. Discretionary (MO)
i. Crt. generally may order this only where its
propriety is established by the ordinary civil
preponderance of the evidence standard
ii. Few states impose the higher clear and
convincing evidence standard
iii. Most states impose burden on prosecutor to
show need for transfer

38
 iv. Few States require older juveniles to
demonstrate transfer should be denied
d. Factors prosecutor may consider in deciding to transfer:
1. Nature & seriousness of the crime
2. Maturity of the juvenile
3. Sophistication of juvenile
4. Prior record
5. Amenability to treatment and rehab
6. Public need for protection
7. (MO) Racial disparity
e. Kent v. US
1. Crt held that a juvenile may not be transferred to
criminal court pursuant to a discretionary transfer
statute W/o hearing, w/o effective assistance of
counsel, or w/o a statement of reasons for the
transfer.
f. Recidivism rate is higher in adult transfer cases
g. Transferees can be jailed w/ adults (Federal
Deinstitutionalization mandate doesnt apply)
h. Extended jurisdiction juvenile prosecutions (EJJ) =
authorizes the juvenile court to retain jurisdiction and
impose both a juvenile and an adult sanction on older
juveniles.
i. Delinquency Procedure
17. Overview
a. Read Miranda rights (before any questioning)
b. Immediately turned over to juvenile officer
c. Juvenile jurisdiction attaches
d. Must be brought before juvenile court w/in 24 hours
18. Arrest and Custody
a. Arraignment
b. Fingerprints, photographs, Lineups
1. State law varies (some do not permit these unless
crt approves) but most allow it w/o crts consent if
the charge is a serious charge
2. Lineups most states cant do this w/o a crt order
but that is changing too.
19. Search and Seizure (mostly in public schools)
a. See T.L.O., Earls, Acton
b. Reasonable S & S if done pursuant to a warrant or to an
exception
c. T.L.O.: 2-Part Test = reasonableness
1. search was justified at inception
(= reasonable grounds for suspecting the search will
turn up evidence that the student has violated or is
violating either the law or the school rules)

39
 AND
2. search was reasonably related in scope to the
circumstances which justified the interference in the
first place
d. Obligation of school to protect student body [Public school
students are a captive audience (have to be there parents
compulsory school attendance statutes)]
e. If police officer searches than the standard raises to
probable cause (Acton & TLO protection of children)
f. Safe Schools Act requires results of a search to be turned
over to the police
g. In considering reasonableness need to consider degree of
the intrusion
(Least intrusive to most)
1. Locker searches these cases dont go far b/c
lockers are school property
2. Metal detector searches part of American life and
hand wands can be used if suspicion (cases dont go
far)
3. Sniff searches occur
4. Strip searches schools often lose these cases
(normally not upheld); must be same gender and
looking for serious contraband
i. Some states outlaw these entirely
h. Exclusionary rule if search violates 4th amend. then cant
use the evidence (This does not apply in school disciplinary
proceedings b/c not a criminal proceeding)
1. Question is whether it applies in delinquency
proceedings? (Abrams probably wont apply)
i. Judicial deference to school authorities
20. Interrogation and Confession
a. Before questioning, suspect must be made aware of
Miranda warning
b. Gault held that the privilege against self-incrimination and
the right to counsel apply as essentials of due process, in
delinquency proceedings.
c. Fare v. Michael
1. Crt. assumed w/o deciding that Miranda principles
are fully applicable in these proceedings, held that
the juveniles request for his probation officer was
not a per se invocation of the right to remain silent
b/c a probation officers role is fundamentally
different from an attorney. (Issue: Did he waive his
right by asking for an attorney? NO, probation
officer does NOT = attorney)

40
 2. Use this test to determine if child waived his
Miranda rights must look at totality of the
circumstances
3. Held: The totality of the circumstances approach is
adequate to determine whether a juvenile has
knowingly and intelligently waived the privilege
against self-compulsory incrimination and the right
to counsel.
4. The juvenile court must evaluate all circumstances
surrounding the interrogation, including the alleged
delinquents age, experience, education,
background, and intelligence.
d. Miranda rights only apply in delinquency and criminal
cases (NOT status offenses)
e. Judicial discretion easy for judge to take Fare standard
and morph it to find waiver
f. Only police have to read Miranda warnings (not school
officials)
g. If child is not arrested but is held for a long time it brings
up the issue of whether the child was free to go or not
(arrested?) and hence, whether Miranda warning should
have been read?
h. Terry stop = stop and frisk if police reasonably believes
theres immediate danger (brief frisk)
21. Intake and Diversion
a. Intake dept. (of prosecutors office) makes a decision
whether or not to proceed further or whether to divert the
case out of the system (most are diverted out)
b. For a case to be diverted out there must be an admission
of liability.
c. Diversion = agreement b/w state, parents, etc. that there
will be some informal crt proceeding; diversion into social
agency or probation dept. (usually a written agreement)
d. Intake basically = a negotiation
e. Most cases are diverted at intake (~ 60%)
f. Recently = greater prosecutor role
g. Disparity b/w # of whites and # of minorities
h. Diversion = way to help juveniles w/o throwing them into
crt.; and also way for crts to keep hold of juveniles whom
they could not prove an offense against
22. Preventive Detention
a. Found to have a substantial impact on delinquency
dispositions b/c the very fact of detention fuels a perception
that the detainee is dangerous to himself or the community
and thus warrants more severe sanction.
b. Shaw v. Martin

41
 1. 14 yr old picked up
2. Required to hold kid if possibility he would commit
another crime before coming back in. (Determine
who is a serious risk of future events)
3. Does this allow too much discretion?
4. Held that the NY statute satisfied due process.
5. Held that preventive detention of juveniles under
the Act did not constitute punishment, but served a
legitimate state objective of protecting the
community and the juvenile from the hazards of
pre-hearing crime AND that the pre-hearing
procedures the Act afforded the detained juvenile
amply protected against erroneous and unnecessary
deprivations of liberty.
6. Based on parens patriae doctrine
c. Today states authorize preventive detention where:
1. juvenile is a fugitive from another jurisdiction
2. juvenile would be a danger to himself or others if
released
3. juvenile would be likely to flee the jurisdiction if
released
4. juvenile has no parent or other adult to assume
supervision
5. juvenile has been charged w/ a serious crime such
as murder
d. Must hold probable cause hearing w/in 3 days.
e. Increased growth of preventive detention (20% of
delinquents)
1. overcrowded facilities
23. Bail
a. Sup. Crt. has never said whether 8th amend applies to
juveniles
b. Get out via preventive detention or probable cause hearing
24. Juvenile Justice and Delinquency Prevention Act of 1974
a. MO is in compliance
b. 3 Mandates:
1. Deinstitutionalization of status offensers and
nonoffenders
2. Sight and sound separation = juveniles may not
have regular contact w/ adults who have been
convicted of a crime or who are awaiting trial on
criminal charges.
i. States must assure that juvenile and adult
inmates cannot see each other and that no
conversation b/w them is possible.

42
 ii. Major aims are to prevent adult prisoners
from committing assault on juveniles and to
prevent juveniles from being infected w/ the
criminal culture of adult prisons.
3. Jail and Lockup Removal requires states to
provide that juveniles charged w/ delinquency shall
not be detained or confined in any institution in
which they have contact w/ adult inmates.
i. Exception: juvenile may be held in a lockup
for only a short period (6 hours)
ii. Juveniles charged in criminal crt w/ felony
may be detained in a secure adult facility
4. Disproportionate confinement of minority youth
requires states to determine whether there is
disproportion and if so to demonstrate that they
have taken efforts to reduce it.
25. Adjudicatory Hearing (Trial)
a. Not same as probable cause hearing (significantly lesser
standard than beyond reasonable doubt)
b. Juvenile proceedings are hybrids (civil w/ lots of criminal
overtones)
c. Usually bifurcated:
1. Liability
2. Disposition
d. Confidentiality
1. Most states in the 1990s enacted legislation that
modified or removed traditional juvenile court
confidentiality provisions to make delinquency
proceedings more open.
2. Some states have even replaced closed delinquency
proceedings, at least in cases involving older
juveniles or juveniles charged w/ specified serious
crimes, w/ a presumption of openness.
3. Juvenile codes in 47 states have provided for release
of info. contained in juvenile crt. records to at least
the prosecutor, schools, police, victim, social
agencies or the public in general.
e. Kent v. US
1. Sup. Crt. found that the juvenile court had deprived
a teenager of a hearing, denied his counsel access to
the social and probation reports and failed to enter a
statement for reasons for waiver.
f. In Re Gault
1. 14th amend due process clause applies in juvenile
delinquency proceedings

43
 2. 14th amend incorporated some of the const.
guarantees incorporated if it is necessary to
establish fundamental fairness
3. Established certain const. criminal rights and left it
open for future decisions to establish more.
4. Tampered w/ idea that juvenile proceedings are
indeed punitive
5. Fundamental fairness test due process
6. Due Process requires:
i. The juvenile and his/her parents or guardian
be given written notice, stating the charges
w/ particularity at the earliest practical time
and in any event, sufficiently in advance of
the hearing to permit reasonable opportunity
to prepare
ii. That the juvenile and his/her parents be
notified of the juveniles right to be
represented by retained counsel, or that
counsel would be appointed to represent the
juvenile if they cannot afford counsel.
iii. That the juvenile enjoy the 5th amen
privilege against self-incrimination and the
rights to confrontation and cross-
examination
7. Sup. Crt. said parens patriae must exist in
conjunction w/ due process
8. Narrow holding: Involves only delinquency
cases; adjudicatory phase only; and only certain
rights:
i. 6th amend right to confrontation & CE
ii. 5th amend right against self-incrimination
iii. Right to cross-examine
9. 3 reasons why Gualt is impt. Today:
i. Significant const. rights apply to
delinquency cases
ii. Revolutionized juvenile court practice
generally (due process things became
more formal)
iii. Founding head of childrens rights
movement (applied const. to kids)
10. Gault guarantees lawyers for kids
11. Most states still allow juveniles to waive right to
counsel (BUT some states do NOT allow waiver of
counsel)
g. Standard of Proof = beyond a reasonable doubt
(fundamental fairness)

44
 1. In re Winship
i. Crt. held that due process requires
application of the criminal beyond a
reasonable doubt standard in delinquency
proceedings.
h. Competency to participate in the proceeding = at the time
of trial is the juvenile competent to stand trial (time of
crime knew right from wrong = infancy defense)
1. Dusky v. US
i. A criminal defendant may stand trial only if
he has sufficient present ability to consult
w/ his lawyer w/ a reasonable degree of
rational understanding and . . . a rational as
well as factual understanding of the
proceedings against him.
2. Some states have statutes or rules that define
competency in delinquency proceedings.
3. Other states hold that due process requires
application of the criminal law competency standard
and prohibits adjudication of juveniles who fail to
satisfy the standard.
4. Usually focus is on mental illness or retardation.
26. Jury Trial
a. McKeiver v PA
1. Four yrs after Gault
2. Sup. Crt. held that due process does not require a
jury trial in delinquency proceedings.
27. Speedy Trials
a. In re Benjamin L.
1.
b. More than half the state statutes/rules guarantee a speedy
trial by imposing time standards for processing and
determining petitions.
28. Double Jeopardy
a. Breed v. Jones
1. Unanimously said that juvenile crt. has criminal
overtones
2. Juvenile had already been convicted in criminal
court and the Crt. held that jeopardy attached when
the juvenile crt began hearing evidence and thus
later criminal prosecution would violate the 5th
amend.
3. In other words, the juvenile delinquency proceeding
is treated as a criminal proceeding in terms of
double jeopardy
b. Swisher v. Brady

45
 1. Held that the states right to file objections did not
violate the double jeopardy clause (b/c state had
opportunity to convince 2 decision makers) BUT
its considered 1 proceeding
2. Happens in MO
3. Commissioner acting as judge and issuing order
29. Disposition
a. Crts. have broad discretion to determine sanctions it will
impose on juvenile.
b. Graduated Sanctions
1. As severity of sanctions increases, so must intensity
of treatment.
2. At each level offenders must be aware that if they
continue to violate the law, they will be subject to
more severe sanctions.
3. least restrictive = probation
4. most restrictive = placement in secure facility
c. Parental responsibility
1. # of states require parents to participate in
disposition phase by:
i. attending parental classes
ii. contributing to restitution paid to the victim
d. Victims Rights
1. All states now grant victims rights in delinquency
process.
2. Ex: entitled to be hear (re: their loss)
e. Aftercare
1. Supervision after juvenile is released from out-of-
home placement.
2. If juvenile fails to comply w/ aftercare conditions,
they may be sanctioned further. (Report to juv. Off)
f. Expungement or Sealing
1. Usually occurs when juvenile reaches age of
majority
g. Collateral use of Juvenile dispositions
1. Now states require the juvenile admit to prior
strikes (prior juvenile adjudications) will count
against them in later proceedings so now have
collateral effect
2. Crts may consider earlier delinquency adjudications
when determining pretrial release or sentencing or
transferring
h. Interagency sharing of Info
1. Confidentiality sometimes leads to informational
territorialism by child welfare agencies

46
 2. Interstate compact = agreement b/w states and
compact becomes law of state.
i. If juvenile is adjudicated and on probabtion
it allows the juvenile to move and have the
2nd state take over.
i. Inovative Dispositions
Restorative justice
1. Juvenile restitution (MO)
2. Community service (MO)
3. Juvenile victim-offender mediation
j. Blended Sentences
1. Combination of adult criminal sentence and juvenile
sentence
2. MO does it
k. Bootcamps
1. Rejected by MO
2. Primarily for older male offenders
3. Popular in 1990s
4. Other states still have them
l. Right to treatment
1. Due process obligation of state to protect juveniles
who are in delinquency confinement
2. Alexander v. Boyd
i. Holding = due process minimum right to
protection and care when juveniles are in
delinquency confinement.
3. Prison litigation format 1995
i. Relief granted cannot be greater than whats
needed to remedy the wrong
ii. D must concede they did something wrong
and then that opens them up for civil
damages
4. Federal enforcement
i. 1990 Civil Rights Incarcerated Persons Act
ii. 18 USC 241 permits prosecution of
persons who conspire to injure, oppress,
threaten, or intimidate a person in the free
exercise or enjoyment of a fed. const. or
statutory right.
iii. 18 USC 242 permits prosecution of
person who, under color of law, willfully
deprives any person of a fed. const. or
statutory right.
5. Mental Health Facilities
6. Reform Efforts

47
 i. MO is leader among states that have taken
decisive steps to reform juvenile
correctional systems.
ii. MO reserves secure confinement for violent
offenders and chronic repeaters, and places
other youth in the less restrictive programs.
iii. MO stresses small decentralized facilities,
regional management, and expansion of a
full range of community based alternative
placements.
iv. Residential programs have units housing 10
or < kids and secure hold max of 70.
v. Proctor homes = youths live w/ college kids
vi. Keep kids close to home to keep parents
involved.
7. Privatization Jackson article
i. Facilities for profit were keeping kids longer
b/c making daily stipend off of them
ii. Doesnt work well
iii. Possible privatization of foster care
30. Appeal
a. Rather infrequent
b. Problem in MO b/c trial judges dont publish opinions
31. Fed. Delinquency Provision Act (FDPA) 1938
a. Dist. judge sits as juvenile judge
b. Provides that if fed. crime is committed it will go to state
court unless AG decides otherwise
c. Juvenile Courts Future
32. Wont be abolished

48