The idea that children might have their own legal rights and interests has only recently begun to gain ground in this country. The first case to establish that theUnited States Constitution applies to minors, In re Gault, a delinquency case, was heard in 1967. And it was only in 1969 that the Supreme Court held that children have a right to due process and free speech, in Tinker vs. Des Moines, a case concerned with high school students who wore black armbands to school to protest the Vietnam war.
The last few years have brought laws and cases that expanded the rights of minors. In many states now, a teenage girl can have an abortion without her parents' consent, but she can't have her ears pierced. In 1980 12-year-old Walter Polovchak refused to return to the Soviet Union with his family and found legal representation to help him stay in the United States. Two recent precedent-setting Florida cases, handled by the same lawyer, stand out. Kimberly Mays, switched in the hospital nursery with another baby, successfully sued for a "divorce" from her biological parents who sought her out after the child they'd taken home died. And Gregory K. "divorced" his biological mother so he could be adopted by his lawyer foster father. Both teenagers were judged competent to know and pursue their own interests. After winning her court battle, Mays ended up leaving the man she knew as her father and returning to her biological family.
More recent cases have also forced us to examine the needs of much younger children, who are more likely to still be seen as fungible assets. Much ink has been spilled over the Baby Jessica and Baby Richard cases. In both cases unmarried mothers voluntarily surrendered their babies for adoption and the absent fathers later decided they wanted those children and challenged the adoptions in court. Baby Jessica, pulled screaming from her adoptive parents in Michigan to be taken to her biological family in Iowa, has reportedly adjusted, though it's impossible to predict how this early trauma will affect her in later life.
The Baby Richard case is still pending. The Illinois Supreme Court has steadfastly refused to consider the evidence that led the original trial court and the appellate court to uphold the legality of his adoption, and ordered the surrender of the four-year-old boy to his biological parents. His adoptive parents are still considering their legal options. The biological mother, Daniela Janikova, abandoned by the father, Otakar Kirchner, when he returned to their native Czechoslovakia with another woman, refused to divulge his name when she put her infant up for adoption, though she claimed that he was abusive and she was afraid of him. When she later resumed contact with him, she allegedly told him the baby was dead. He has claimed he was suspicious, but there's no evidence that he did much to find out whether the baby had really died; he apparently didn't even ask where the baby was buried. After he and Janikova got back together and he learned the truth he waited another month to file to stop the adoption.
Public outrage has since led the Illinois legislature to pass a law requiring hearings on what would be in the best interest of children in contested adoptions, but the court has refused to allow them, apparently because one justice, James D. Heiple of Peoria, strongly believes in the rights of biological parents. But Even if we accept Kirchner's story that he didn't know the child was alive, reversing a legal adoption almost four years after the fact punishes an innocent young child and his family.
As the law gropes its way toward a definition of the rights of children, a new legal specialty is emerging to handle the issues involved: pediatric law. Loyola University's School of Law is the nation's first law school to have a comprehensive three-year course of training for those who want to serve child clients. Interest is growing. Last year, in the second year of the program at the Civitas Childlaw Center, 162 applicants vied for ten scholarships. "In the past if you wanted to be a tax specialist there was no problem--there was a curriculum for you," says Diane Geraghty, faculty director of Civitas and a professor of law at Loyola since 1978. "There was nothing for you if you wanted to work with the legal rights of kids. Our program won't solve the problem, but it's a start." Geraghty, who speaks in a voice so soft it sometimes recedes into inaudibilityk, is also the mother of four teenage girls and a working lawyer who's been part of numerous landmark children's cases in Illinois. She's passionately involved in children's rights, but she retains the ability to look at things dispassionately. And she has the rare ability to see both sides of the picture.
Sarah Bryan Miller: Why don't we start by talking about the legal status of children-- what it has been, what it is now, what you believe it should be.
Diane Geraghty: We could start with the recognition that the law traditionally has paid very little attention to children as independent beings who have independent needs and rights. But there are some reasons for that. One thing we have to acknowledge is that we're talking about a range of ages and competencies and cognitive and emotional differences. There are a lot of assumptions that we've built in based on, one, the idea that kids are wanted and therefore their parents have a natural affinity for them and are natural protectors of them; and, two, that the state, dating back to English-common-law times, has viewed itself as having a special role whenever, for whatever reason, that natural assumption about parents has fallen through the cracks.
So that's one reason why the law has simply not focused on children as having independent sets of values. The other of course is our tremendous ambivalence. We mouth platitudes about children being our future and our most precious resource--and at every turn we take actions that belie that. Because this is not a constituency that votes--this is literally often a group of people who cannot speak or act on behalf of their own interests.
And I think that it's in that confusing mix that finally-- and we're really only talking about the last 25 years--there is any systematic attention in the law given to recognizing children's having an independent set of needs and rights that the law has to respect and protect. And it's even more recently that the legal profession--the law schools, the organized bar--sees that it has a special role to play in assuring that those unique needs are met.
SBM: How much progress has been made since the days of ancient Rome, when the father was the literal owner of his children and could legally kill them if he wished?
DG: The oldest child-protection laws that we know of actually do date from the first century BC, and those were making little inroads in that absolute-ownership concept. Obviously we have made progress over time, in the sense that we now have many, many, many laws to protect children. We are now, only very recently, aware of the magnitude of some of the harms that children have suffered behind closed doors in supposedly loving families.
Where we haven't made sufficient progress is in the aggressive implementation of these laws and in achieving a basic standard of safety and sustenance for children. Until we get to that basic level, we haven't made much progress beyond the first century.
SBM: What is the state's legitimate role in a child's life? How far can it go in concerning itself with child welfare?
DG: Well, here's what the law's traditional answer to that question has been: It operates on the presumption that those who are responsible for a child's care--parents, traditionally--are not only likely to satisfy those needs, but are in the best position to know what those needs in fact are and to supply the full richness of community and culture and family heritage and values in which to raise that child. But there's long been a recognition, dating back to Roman times, that that assumption doesn't operate in every case and that the state does--because of the vulnerability of children, because of their inability to take care of themselves--have a responsibility.
This is a concept known as parens patriae. It's a Latin term, and it really encapsulates the idea that in certain cases when citizens have special vulnerabilities where they cannot protect their own interests--because of mental disability or in the case of a child--the state has a special role to actually stand in as the good parent. It says, when children need the state to step in--because they've been orphaned, because their parent isn't serving the role that's sort of the operating assumption here--that it will do that.
Now the state has always stepped in in the case of abused children, but it did it very sporadically. Looking back to the late 1800s, for example, where we get the first case involving an abused or neglected child, the assumption has been that those are unique cases, and very extreme cases, and that the basic relationship between the state and the parent is one that suggests that the state should be reserved in entering that family relationship.
Very recently, many have come to question whether or not the state should involve itself more actively. The pendulum is swinging. The state is called upon to act more aggressively.
Beginning in the 1920s the United States Supreme Court said that the U.S. Constitution actually protects the family relationship through the 14th Amendment and the concept of due process. When you look at that language it's not quite clear whether those were parents' rights cases or family autonomy-rights cases. But what they do say is that the state should have a very good reason before it intervenes in that family relationship.
Now if we fast forward to Baby Richard, for example, many people have characterized that as a fight between the biological parents and the adoptive parents. That is one way to characterize it, because it is adults by definition who have the capacity to go into court. But another way to characterize it is to ask whether or not that recognizes an independent set of needs and rights for the child. This happens to be in a private adoption case, but that same question can be asked in connection with foster-care systems, in connection with the removal of a child from his or her biological home. How do we strike the right balance?
SBM: Does the state sometimes go too far? You hear horror stories about somebody who gives her child a swat on the rear for taking something in the grocery store, and someone calls DCFS, which sends out an agent to take the child away.
DG: Well, there's no doubt that the state goes too far sometimes.
SBM: Or pediatricians who turn in parents for evidence of mild spankings--not beatings--because they're required to report such things. Does that apply to all corporal punishment?
DG: Not anything that looks like corporal punishment. Anything that looks like suspected child abuse or neglect. That is defined in Illinois law as serious physical injury. Our laws still say that parents have a right--as part of this due-process biological right to be engaged in the care, control, education, and upbringing of children--to engage in corporal punishment as a form of discipline. It's when it crosses that line that it exceeds reasonable people's definition of reasonable corporal punishment in the law.
SBM: Is the definition of "reasonable" changing?
DG: I don't think the definition is changing in an absolute sense. I think that there are always gray areas when you get into cultural issues, or religious issues, about how much deference should be given to the use of corporal punishment as a form of discipline. I think we would all be worried if a pediatrician reported a family, or if the state wanted to step in and remove children from a home, where part of the religious value was to use it appropriately as discipline--even though I personally think we'd all be better off if our culture didn't use corporal punishment at any level.
SBM: Speaking of religious values, in recent years we've seen several cases where Christian Scientist parents have been prosecuted by the state for failure to seek medical help for their children Where does their right to their religious convictions end?
DG: It's been quite clear in language from the U.S. Supreme Court since the 1940s and 50s that adults are free to martyr themselves, but not their children. Although I have a great deal of empathy for parents who act out of religious convictions, if there is a life-threatening situation it is perfectly appropriate for the state to step in and represent the child's interests.
SBM: There was one case where a child was stricken with meningitis, which looks like flu in its early stages and moves extremely fast My impression was that even a parent who makes regular use of pediatricians could have missed it until it was too late, but the state prosecuted them [and won].
DG: My starting assumption is that parents are acting on behalf of the best interests of their children, and that a fair amount of deference should be given to the family in its decision making. It's the same thing in a case where a child has cancer and the prognosis is not good. If the family opts for an experimental treatment instead of a higher-dosage chemotherapy or no chemotherapy at all, I think we have to let them make that decision.
SBM: What about cases where a child is born very prematurely and there's a high probability of severe, long-term disabilities as a result? Is the state right to force medical care on that infant if the family prefers to let nature take its course?
DG: I believe strongly that that should be the family's decision. The state won't care for that child. It doesn't know what it's like to be in a family where a coerced decision has been made. Again, it's a family decision, like the right to die at the other end of life.
Striking the balance is the key to all of this, and it's also the most difficult thing you can do. But I think part of the problem in the past is that we've thought of it as "When can the state interfere in biological rights of parents?" And what that left out of course was the child. I hope we're starting to say that we have to factor in the child's interest and have that as the center of our decision making.
Now that doesn't mean it's going to become easy. But what it does mean is that there are processes that have to be applied that remind you always that this is a dispute about a child and that that child has independent interests.
The nature of those interests are complex, and again it relates back to children being different. You function differently as an attorney for a 2-year-old than you function as an attorney for a 16-year-old. A 16-year-old is able to actively participate in his or her needs and communicate them, which the 2-year-old obviously is not. By having independent representation of the child's interests at any level, the process is in place by which the child's needs are independently assessed.
SBM: Obviously, there's a difference in how you consider the best interests of an infant and of somebody who's going to be 18 in three weeks. How do you decide how much weight to give to the child's wishes? Is it strictly on an age basis?
DG: This is an area in which our laws--and the laws here include the ethical obligations of an attorney, if we're talking about representing a child client--vary from state to state. I think that everyone agrees that, although there are American Bar Association professional-conduct guidelines, there still is not enough uniformity of definition. So in one state the answer could be one answer, and in another state it could be another.
In Illinois, as I understand the law, and participated in its development, as an attorney for the child you have two hats on simultaneously. Normally the job of an attorney who represents an adult client is very clear: you have to be a zealous advocate for your client's wishes, even if you think they're goofy or misguided. Once you agree to undertake that relationship it's quite clear what your ethical responsibility is.
But when you represent a child in Illinois you are supposed to advance that child's wishes--if that child is capable of formulating a reasonable set of wishes--but ultimately you are also supposed to act in the best interests of that child. And it may be that in a given case you don't think [those wishes are] in the child's best interest.
SBM: If you have an eight-year-old client who wants to join the circus you can recognize that that's not in her best interests.
DG: That's right. You may make that judgment. And as you move along the cognitive scale and the other things that go into making an adult, those issues become more and more complex.
Let me give you just a couple of examples in which I've been involved. The most recent case was one in which a 12-year-old girl was being represented by the Cook County public guardian, who was serving as the guardian for the child--who by law has to advise the court about the child's best interest--and was also functioning as the child's attorney. She was unhappy with the positions being taken on her behalf by the public guardian's office. She wanted an attorney, a different attorney, who would represent her interests. She wanted to have visitation with her family, and the public guardian concluded that that was not in her best interest--very genuinely concluded that.
Now the question is, is she entitled at that point to have an attorney of her own choosing, even though the public guardian would continue in place to represent her best interest? The Illinois appellate court said that she was--that the court had examined her ability to make an independent decision on that question and that she was really capable of selecting her own attorney, not being coerced by adults.
What it didn't do was to say what was the responsibility of the new attorney. And that remains, I think, a relatively ambiguous question, unresolved in Illinois.
Another case in which I was involved, representing a 17-and-a-half-year-old Jehovah's Witness who sought to decline on religious grounds blood transfusions that, according to her physicians, were needed to save her life. So it was a life-threatening situation. Her mother was also a Jehovah's Witness, who supported her judgment. Here's a child who absolutely, without question had given serious thought to this, sought to obey the tenets of her religion, fully understood the medical consequences of that decision. And as an attorney for a 17-and-a-half-year-old, I felt it was very appropriate to advocate her wishes. Now did I think that that was in her best interests? Yeah, I did, because I really thought it was very important to her.
SBM: It was a sincere religious belief.
DG: Right. It was very sincere, independently arrived at. She was not being coerced. So for me it did not present an ethical problem. I don't know about another attorney, who could have come out differently on that question--and you could come out differently on it.
In that case, which ended up going to the Illinois Supreme Court, at the trial court she was ordered to have the transfusions. She did have the transfusions, against her will. But at both the Appellate and the Illinois Supreme Court the court recognized her independent right, on a record that showed her maturity to make these decisions in full understanding, even though she hadn't passed the bright line into adulthood.
Then there was Walter Polovchak, the 12-year-old boy who did not want to return to the Soviet Union, in a disagreement with his parents. In that case I was involved in the representation of the parents. Walter was independently represented, as, I think, he definitely had a right to be. You have that very delicate question of whether or not, in the absence of any showing of wrongdoing on the part of these parents--these were not abusive parents, or neglectful parents, or in any way harming him. They thought they were acting in his and in their family's best interests. He disagreed with that. Does the law allow a 12-year-old to make an independent decision outside the family and ask the state to intervene on his behalf and support that decision?
SBM: You had the additional issue of returning to a repressive state.
DG: We had that issue. There was also the overplay of U.S.-Soviet politics, which quite clearly intervened, and he ended up being treated quite differently in the system. I mean, every other 12-year-old who runs away from home is returned to the biological family.
SBM: They'd have returned him to, say, South Carolina, without this becoming an issue.
SBM: And that segues neatly into the whole issue of time. Walter turned 18 while the case was still in the courts, which made the whole thing moot. The legal system works extremely slowly. We've seen this with the Baby Richard case and the Jessica deBoer case, where you start with infants and you end up with preschoolers by the time the cases are resolved.
DG: But in these tragically difficult cases some progress gets made as a result. What I hope will come out of a case like this--and already has, in fact, in Illinois--is a recognition that the legal system has to adjust its timetable to the needs of children in these cases. The courts can't proceed with business as usual, particularly where it's a civil case, and there are none of the speedy-trial requirements that are in place for criminal cases. So we do now have, in the wake of Baby Richard, in Illinois, provisions for expedited decision making. I think the Illinois Supreme Court in some ways sent a pretty good and clear message when it decided this most recent case even before the written opinion rather than wait--and sometimes that court has waited a year, a year and a half before issuing an opinion.
There were many levels with Walter Polovchak.There were many Polovchak cases, both in the state and in the federal systems, with many different parties.
SBM: And I'm sure that his lawyers did all that they could to kill time. Whereas the Baby Richard case looks pretty straightforward--this is just how long it takes.
DG: Well, I don't think that that's right at all. I think that this case could have and should have moved much more quickly. There's fault to go around all over the place in the Baby Richard case. But focusing just on the legal system, part of the fault is that this case stayed on calendars for too long. Here, I think, all members of the legal system--the lawyers and the judges--have a special responsibility, statutory obligation aside, to put these cases on the fast track. If we can do fast-track legislation in Springfield, we can do fast-track expediting of these cases.
Just as the Supreme Court has on occasion decided a case was an emergency and gotten those wheels going so that we get a final resolution from the Supreme Court literally in a matter of days--the Pentagon Papers cases--we should consider children's needs a matter of emergency, because their sense of time is quite different from an adult sense of time. Beyond the normal developmental issues, the psychological impact of time also affects them differently.
SBM: Is legislation needed, or is this just something where a group of judges should heed the wake-up call and do it on their own?
DG: Both. I think that we have some legislation in place now in the wake of the Baby Richard case that was a response to that unique situation. But remember that although this is a case that certainly has received a lot of attention--and deserves to, because in some ways it poignantly raises these issues--contested adoptions between private parties nationwide represent less than one percent of all adoptions.
Here we're talking about a child who is wanted, who is going to be well cared for, who is well cared for. But this issue of the legal system's response in the life of other kids where that isn't the case is just as urgent. That's why in Cook County we don't have enough judges to expedite these cases as they're pouring into the system. It's not just that we need more resources for kids because the judges are overworked--because they are--it's because these kids deserve to have permanency, and quick and fair decisions rendered.
SBM: How much do you consider the best interests of the child? When Edgar pushed through this law for hearings to consider the best interests, was that ground breaking or was that catch-up with other states?
DG: It's ground breaking, in the sense that it may very well be unconstitutional. [she laughs] That goes back to our earlier discussion about the relationship between the state and biological families--and when I say "families," I don't just mean parents.
In the case of the permanent legal severance of that relationship between a biological child and a biological family--which is what happens in an adoption case; an adoption case can't go forward until there is a legal ending of the relationship between biological parent and child--the termination is accomplished in one of two ways.
The biological parents voluntarily consent to that, and the child is then freed up for adoption. That's what happens very often in the case of a newborn who's going to be adopted. In fact, that's what happened in [the Baby Richard] case--it's just that the consent of one of the parties was never part of the process. One of the things that should happen in the wake of that case--and I think it is already happening, is that all of the parties understand the importance of getting consent from both parents. If that has been done the law makes it very difficult for the biological parent to change his or her mind in the absence of clear showing of fraud or duress and within a pretty short time.
In the absence of parental consent the state has to show that the biological parent is unfit. The law says that because it operates on the assumption that biological families have the constitutionally based right to stay together. That includes not only the right of parents to have custody of this child; it includes the right of children to remain a part of that family without the state snatching kids out of it. And that's the reason that the legal standard is set pretty high--there has to be this showing of unfitness before you ever turn to the question of what's in the child's best interest, the reason for that being that many children could be moved into, "better homes" in the sense of economic status, the educational background of the parents, however you want to measure that standard of a "better home."
SBM: Justice Heiple's version was that you'll have poor children snatched from shopping carts at supermarkets by rich parents, and the law will uphold this kidnapping.
DG: It's hyperbole. I think that we have to talk among ourselves about what it means to say we're acting in children's best interests. What about a rule, as Justice Rizzi suggested in his appellate opinion, that says, without regard to the circumstances, that a child-centered approach to policy would be that if you had a newborn living in a permanent situation in an adoptive family for X amount of time--18 months, four years, whatever it is--that "no fault" would be the applicable principle. It wouldn't make any difference how that adoptive family got the child--whether or not they got them through a dispute over facts, through fraud on their part, through snatching out of the shopping cart--because from the child's perspective it's the permanency of that home that should be the centerpiece of the policy.
Now there are others--and I count myself among them--who say it's more complex than that, because the assumption is that the child's needs relate only to that single question of the permanency of being in the only home that they've ever known. I have concerns about what that child is told when they find out. Do they feel a hole in their heart later on? How do they relate to this adoptive family when inevitably they find out the facts? My own feeling is that you need to factor all of that in when deciding what the policy is and what the law is.
I think that Justice Heiple was in his hyper-hyperbole envisioning the downside of that approach, saying that the law should not reward, in the name of best interest of the children, what may not in fact be in best interest of children ultimately.
SBM: I can't see that kidnapping would satisfy any reasonable person's test of best interest.
DG: Or would it? Because if in fact the issue is removing a child from the only family he or she has ever known, and assuming that that child is loved and well cared for in that situation, should it make a difference?
SBM: But if you're having a hearing I think you have to bring in everything, and not just "this is a good home."
DG: Justice Heiple's argument would be that if we value that biological-family relationship then we only permit the state to intervene in the case of consent or a finding of unfitness. When neither of those is present the law says that it's in the child's best interests to be with that biological family. As a constitutional matter, it says that--and it would expand the state's power too much to say at that point, "We're still going to consider the best interest of the child" because that would mean that we would have a situation in which we would be assessing the fitness of families to raise their children and giving the state the power to remove children from that setting--even if the parents are fit.
SBM: This brings us to the question, is DNA destiny? What's the difference between a father who gets the mother pregnant and then takes off and is not there for her emotional or financial support and a sperm-bank donor?
DG: Fair enough. Over 20 years I've watched the grounds for unfitness expand in a way that I think increasingly does recognize the need for permanency in children's lives and the need to be able to free them up for a permanent home, for adoption. That's really the reason that "fails to show a reasonable concern within 30 days of a child's birth" has been added to the law--because of the Rush Street conception: they meet on Rush Street, they have the one-night stand, the child's conceived. Why hold the child hostage to that relationship if that person isn't a part of the child's life and is the equivalent of the sperm bank? The law agrees with you on the point that there really is no difference.
What became complicated in the Baby Richard case is that a law that clearly was designed for the sperm-bank Rush Street no-interest no-support situation was applied in a case that doesn't quite fit those facts.
SBM: Not as comfortably anyway.
DG: Not as comfortably. That's right. And that's why the 30 days by definition requires a factual determination about whether there has or has not been any interest shown. Because the assumption always is that if there has been interest shown, then it's not the sperm-bank relationship and that it's not just the biological parents' rights that are at issue here. In a case in which there is a biological parent reaching out to a child, that child's rights may also be caught up in having that relationship.
SBM: Can you define "showing interest"? If the man's not there, physically, or emotionally, or financially --and it's the woman who's doing all the work here, after all--why shouldn't she be able to deal with this pregnancy as she wants to? Why should he have any say at all?
DG: Well, let me ask you this. Today's headlines have a motion by Marcia Clark's husband to change custody to him, based on the argument that she is not providing adequate emotional input, care, and attention.
SBM: Is he going to stay home to be a full-time parent? Sounds like a nasty divorce to me.
DG: It does! It does! But it is the same question.
SBM: I'd say it's a different question. The Clarks were a married couple, and there's no evidence that he just took off and didn't want to keep up his obligations.
DG: That's right. But the principle is the same, and that is, at what point are we going to permit the state to start being involved in making judgments about interest, and enough time away, or the whether the emotional needs of children are being met?
The U.S. Supreme Court has gotten involved in this question in connection with putative fathers' rights. Ironically, in view of his role in the Baby Richard case, [Cook County Public Guardian] Patrick Murphy brought a case a long time ago by the name of Stanley vs. Illinois. It involved a putative father who in fact had been intimately involved in living together with a family, and then the biological mother died. Under Illinois law at that time he was conclusively precluded from having any role or rights with respect to the children in that case, even though he had lived with them, supported them over time. And Stanley vs. Illinois stands for the proposition that the federal Constitution in that kind of relationship doesn't permit the state to cut that person out--not only that person, but the kids--in that way.
But it has in another set of cases made it quite clear that not all putative father relationships with children are created equal, and when in fact there hasn't been any indication of interest or concern, again, the kids shouldn't be held hostage and biological parents shouldn't have to consent to the children's adoption.
So our standards for unfitness, as a matter of law, have tried to incorporate those constitutional guidelines that we've been offered--which are pretty incomplete.
But the question of unfitness is not only an issue in the newborn where it's a private adoption. It's an issue in many, many more cases of kids who are brought into the abuse and neglect system. They're removed from their family's custody under this doctrine of parens patriae, and then the question is, do you work to send those children back to their biological families or do you work to terminate that relationship, and provide permanency for these children?
SBM: It sometimes seems that DCFS is more concerned many times about getting biological families back together than about other considerations.
DG: It's more than DCFS. It's federal policy that requires reasonable efforts be made. And it all goes back to this concept of what's the appropriate relationship between biological families, and the state, and its parens patriae powers. There are many who believe that family preservation is a misguided policy, that it is not a child-centered policy.
SBM: Should Joseph Wallace's mother have had him back?
DG: No. There's an awful lot of rhetoric around these issues. All of us, I think, would agree that in many cases family preservation is a reasonable, child-centered policy. When you've got kids who are living in poverty and neglect--it's a dirty-house case, but it's really based on inadequate income: and this a family that's trying, it's fallen on hard times--I think we can say that our dollars would be better spent trying to support that family, where the children have psychological and cultural attachments, than in yanking them out.
SBM: But when the mother's a crack addict and there's an absent father--or series of fathers--
DG: That's right. Family preservation makes sense for appropriate families, but for many families--Amanda Wallace being the best example--it makes no sense at all.
We have to have systems in place, and they have to work. And they have to make those decisions much quicker than we have made them. People are finally realizing that we need risk assessment, which isn't a legal concept at all. It's a concept based on other principles and disciplines relating to children and their needs and concepts of attachment. If you have a family of crackheads, if there is polydrug abuse and dependency and if this is repeated behavior over a long period of time, then you know right away that family preservation doesn't make sense. You hope for salvation for those parents, but for the children you want a real chance in life.
Before that of course you want prevention of all of these things and early intervention, if possible. But once they're actually identified in the system you want to be able to make those decisions up front, as opposed to as we have been doing. We have been doing it for a lot of different reasons, and I think this concept of biological parents' rights has been a contributing impediment.
SBM: I think we have to be careful to avoid the idea that every individual is the property of the state--"Your daughter is a promising gymnast, therefore we're going to take her away and put her in our special gymnastics school"--as exemplified by the east bloc countries.
DG: That's right. Or Sparta. Justice Heiple's example may be hyperbole, but it's not that we don't have models out there to suggest that this is not a way that can be conceived of by governments and people. I think that there is no doubt that if you look at it solely from the perspective of the biological parents' rights you don't get the right answer to the question.
SBM: So where do we need to go with ensuring that children are listened to, that they do have their best interests considered?
DG: We know the answers to these questions already. In some ways these are easy questions to answer. Application of principles in any given case can be complex, as we see in Baby Richard. But the principles themselves are not. We need prevention. Our resources should be devoted upstream, before people ever get into the system.
We know that it's better to keep families out of the system, but what's happening in Washington right now? The federal legislation that was put into place 20 years ago to do that is up for reauthorization. There is a lot of talk about not reauthorizing it, because some people feel that mandatory reporting laws for professionals have created situations in which parents were falsely accused of abuse or neglect and it's ruined their lives. It's undeniably true that mistakes have been made, but does that mean that we're abandoning our prevention efforts? That we'll literally throw the baby out with the bathwater? That's absurd!
SBM: Unfortunately you can't legislate common sense. There's the mandatory reporting law for photo labs to report pornographic pictures; whether it's a picture of your 18-month-old in the bathtub or real child porn, they have to turn you in. That's absurd too.
DG: They have to report. I know, and I've actually been involved in a case like that too.
We know what we have to do in terms of prevention, but why aren't we doing it? Some states are. We're trying to get off the ground here in Illinois with a program that has had some success, in which you actually go into hospitals at the time children are born, identify at-risk families: the baby tested positively or other risk factors--isolated, single parents, young parents. Rather than going with a law-enforcement model at that point--"Let's take the child out of the home"--it involves going in with resources and support. It's been a pretty good success in areas where that's been done.
Secondly, we need to do risk assessment at once as the child comes into the system. We need to make decisions early about how we're going to proceed with this family based on the knowledge that we already have in place. Amanda Wallace was not capable of taking care of her children; family preservation did not make any sense in her case.
Now there it wasn't an absence of will or a political ideology. Our systems have to work. It's 1995. We have computers. They have to be used. There have to be information-management systems that are not dinosaurs in place so that we communicate intercounty. Judges who are asked to make these decisions have to have the information. They have to know about the fact that she's been eating light bulbs. And in the Wallace report, if you go back and look, you can see all of the places in which the system failed that child and that family. There's no condoning what Amanda Wallace did, but she's a victim. This woman is completely crazy. She shouldn't have had those children.
SBM: That begs a tricky question: The law can't or won't tell these people that they can't have children. Isn't this the ultimate child abuse--crazy mothers like Amanda Wallace, crack-addicted mothers, mothers with AIDS who have two or three kids after they know they're HIV positive. Should this be allowed?
DG: That's very complex and very scary also. How do you tell them that they can't have children? Do we involuntarily sterilize large groups of people? Now is it only the Amanda Wallaces? Or is it the welfare mother, because we certainly see in Washington the political will to say that we're not going to financially support all of these children.
Well, one sure way of ensuring you don't need to do that would be mandatory sterilization. But we have the backdrop of history. I once went back and found the Cook Country records on standards for involuntary sterilization in Illinois. We sterilized people for lots of reasons, including propensity to criminality. So I don't know how we say they can't.
SBM: It's slippery-slope stuff.
DG: It is. Felix Frankfurter once said, "Much of the importance of American law is in the process." That's how we guarantee a fair shake on many levels. I think lawyers can play a role in independently representing kids and making sure that their voices are heard. It's getting to be a cliche right now, but I think it's based on the literal recognition that kids don't have voices of their own. And the state doesn't always do that good a job. We can't depend on the state to say, we'll take care of the interests of children if biological parents won't--because we know that the state doesn't make a very good parent either.
Art accompanying story in printed newspaper (not available in this archive): Photo/Paul L. Merideth.