NCJ Number
67007
Journal
Columbia Law Review Volume: 79 Issue: 4 Dated: (MAY 1979) Pages: 719-734
Date Published
1970
Length
16 pages
Annotation
THE ARTICLE REVIEWS STATE CHILD NEGLECT WHICH REGULATE INTERVENTION INTO FAMILY LIFE AND CONCLUDES THAT MANY MAY BE COUNTERPRODUCTIVE CONSTITUTIONALLY OVERBROAD.
Abstract
STATE STATUTES JUSTIFY INTERVENTION BY FOCUSING ON THE PARENTS' CONDUCT, PARENTS' FAILURE TO PROVIDE FOR THE CHILD, OR THE CHILD'S CONDITION. REVISED LAWS HAVE BEEN CHILD-ORIENTED, RESTRICTING STATE ACTIVITIES TO THOSE CHILDREN MOST IN NEED OF ASSISTANCE. EVEN IN THIS SITUATION, THE ALTERNATIVE CARE PROVIDED COULD BE LESS BENEFICIAL THAN THE CHILD'S NATURAL FAMILY. SINCE THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT PROTECTS THE FAMILY FROM UNDUE STATE INTERFERENCE, INTERVENTION MUST BE REASONABLY RELATED TO THE PROMOTION OF A VALID STATE INTEREST. SEVERAL SUPREME COURT DECISIONS HAVE SUPPORTED THE RIGHT OF PRIVACY FOR NUCLEAR FAMILIES BOUND BY BLOOD AND EMOTIONAL RELATIONSHIPS. LOWER COURTS HAVE MAINTAINED THAT SUCH FAMILIES HAVE A FUNDAMENTAL RIGHT TO BE FREE FROM STATE INTERFERENCE. UNDER THIS INTERPRETATION THE STATE MAY PROVIDE ASSISTANCE TO FAMILIES WHO DO NOT PROPERLY CARE FOR THEIR CHILDREN, BUT CANNOT REMOVE THE CHILDREN OR IMPOSE COUNSELING. WHEN ECONOMIC AND SOCIAL WELFARE LEGISLATION HAS BEEN CHALLENGED ON CONSTITUTIONAL GROUNDS, THE SUPREME COURT HAS OFTEN DEFERRED TO THE STATE'S RATIONALE FOR THE LAW. IN THE CASE OF IN RE GAULT; HOWEVER, THE COURT CONDUCTED EXTENSIVE RESEARCH AND FOUND THAT PROCEDURAL SAFEGUARDS WERE CONSTITUTIONALLY REQUIRED IN ANY COMMITMENT PROCEEDINGS. THIS APPROACH SHOULD BE USED BY THE COURTS TO EVALUATE A STATE'S CHILD NEGLECT SYSTEM. TO AVOID ABRIDGEMENT OF A FAMILY'S CONSTITUTIONAL RIGHTS, A NEGLECT STATUTE CHOULD FOCUS ON THE CHILD'S CONDITION AND REQUIRE PROOF THAT STATE INTERVENTION WOULD ACTUALLY BENEFIT THE CHILD. NEGLECT HEARINGS ARE USUALLY CONDUCTED IN TWO SEPARATE SESSIONS, ONE TO DETERMINE NEGLECT AND ONE TO DECIDE ON DISPOSITION. THE HEARINGS SHOULD BE COMBINED SINCE THE COURT WOULD BE CONSTITUTIONALLY COMPELLED TO DECLINE JURISDICTION IN CASES WHERE THE STATE COULD NOT PROVE THAT INTERVENTION WOULD HELP THE CHILD. FOOTNOTES ARE PROVIDED. (MJM)