The Child Welfare through Family and Community Facilitation Act (the Act):
(1): The Family and Community Facilitation and Child Welfare Administration (the Administration) shall be established to execute this Act and all of its provisions.
(a): The Administration shall be staffed by Community Facilitators (CFs) and Family Support Case Workers (FSCWs), trained and licensed in the skills necessary to implement the provisions of this Act.
(2): Current Parents, Expectant Parents, Foster Parents, Prospective Adoptive Parents, Legal Guardians, or primary care-givers (collectively, “parent,” whether referring to one parent acting alone or more than one parent making decisions together), along with their children, shall either formally belong to a Community, as defined in subsection (a), and participate in Community Parenting Support Meetings (CPSMs), or shall attend a Parental State-Disengagement Determination (PSDD) conducted by an agent of the Administration according to section 2(c) below. (Non-parents are encouraged, but not required, except as specified below, to belong to a Community and attend CPSMs). If a parent declines to attend either CPSMs or a PSDD, then an FSCW will automatically be assigned to that parent.
(a): The Administration shall create regulations to ensure that parents, both expectant and actual, follow procedures incumbent on parents in accord with this Act as soon after being informed of impending or actual parenthood, or beginning adoption proceedings, as is reasonably practicable.
(b): A Community, for the purposes of this statute, is either geographically or culturally defined.
(i): A parent shall by default belong to his/her geographical community, unless that parent selects a cultural community to belong to.
(ii): The upper and lower numerical limits of such Communities, the boundaries of Geographical Communities, the degree of geographic dispersion permissible for Cultural Communities, and the criteria of what constitutes a Cultural Community, shall be determined by the Administration according to guidelines designed to ensure that each Community is so constituted as to be capable of satisfying the functions described in the provisions of this Act, and of advancing the goals defined as the purpose of this Act (following the provisions described in subsection (iii) to protect parents utilizing culturally variant practices from ethnocentric presumptions of abuse or neglect).
(iii): Culturally variant practices that might be technical violations of the law, or presumptively harmful from a prevalent American cultural perspective, shall constitute grounds neither for refusing definition to a Cultural Community, nor for invoking the provisions in sections 4 and 5 of this statute, if they do not unambiguously create objective harm or deprivation to the child, if all or nearly all members of the Cultural Community would find the practice harmless and inoffensive, and if the Cultural Community has an independent existence and is not an artifact of convenience designed primarily to insulate its members from legal constraints to which they would otherwise be subject.
(iv): Communities shall be assigned the task of ensuring, with the organizational resources allocated and with the oversight of the CF, that the basic needs of parents and children in the Community are attended to by
(I): assisting parents in accessing the relevant family support programs established by complementary legislation, which provide children and families with adequate material support and vital services,
(II): facilitating mutual cooperation among Community members to provide one another with the moral, emotional, and informational support conducive to the long-term welfare of all of the children and parents in the Community, and
(III): providing children with age-appropriate means for expressing their views and preferences regarding their own upbringing and disposition, and having those views and preferences known and taken into consideration in any proceedings that involve them.
(c): CPSMs shall be held at a frequency to be determined by the Administration for each Community in consultation with the members of that Community, not to exceed one time per week nor be less than one time per month. By similar means, the Administration shall establish a mandatory attendance rate for parents in each Community, not to be less than 30% nor exceed 70% of all meetings, applicable to each parent individually, except in particular cases in accordance with subsection (ii) below.
(i): Each Community shall arrange on-premises child-care during the meetings by having three or more parents, on a rotating basis, undertake child care responsibilities during each meeting.
(ii): The Administration shall assist individual parents and Communities to make special arrangements in cases of particular scheduling problems, exercising a substantial commitment to accommodating parents with such verified scheduling problems, so long as the conflict involves an obligation that substantially contributes to the family’s material welfare.
(d): The Administration shall conduct PSDDs at the time and location most convenient for the parent whenever possible, and with substantial deference to the parent’s presumed right to direct the upbringing of the parent’s child(ren) as the parent sees fit. The Administration shall determine at the PSDD whether there is any compelling reason not to permit the parent to voluntarily disengage from the Family and Community Support apparatus established by this Act.
(i): The Administration shall establish a fully delineated set of criteria by which to make such determinations, and will do so under guidelines designed to prevent the influence of prejudices on the part of its agents, such as those regarding race, ethnicity, culture, class, gender, or sexual orientation.
(ii): If such a compelling reason is not found to exist, the parent will be allowed to disengage from the state involvement delineated in this Act, except for the provisions of sections 2(d), 3(a)(5), 5, and 6.
(iii): If such a compelling reason is found to exist, the parent will be assigned an FSCW.
(3): Family Support Case Workers (FSCWs) are entrusted with the responsibilities of monitoring families for evidence of Child Abuse or Neglect (as defined in 20-8-140 of the SHF Revised Statutes); working with parents (always deferential to parents’ preferences short of child abuse or neglect) and children to improve coping skills and devise more effective strategies to deal with the challenges of child-rearing; identifying particular family problems, challenges, and needs that are having or can reasonably be expected to have a significant impact on the child’s welfare; and recommending to the Administration interventions and assistance that are conducive to the continued provision of a safe and healthy home environment for the child.
(a): An FSCW shall be assigned to a parent when
(i): a parent requests it,
(ii): a Community Facilitator (CF) recommends it,
(iii): the Administration deems it necessary through a Parental State-Disengagement Determination,
(iv): a parent declines to participate in CPSMs or, alternatively, to attend a PSDD,
(v): the Administration deems it necessary as the result of an investigation into an allegation of Child Abuse or Neglect, or
(vi): to prospective adoptive parents upon initiation of adoption proceedings.
(b): An FSCW shall be authorized to recommend targeted financial and material assistance to parents, according to criteria to be developed by the Administration.
(i): An FSCW shall be authorized to predicate the receipt of such assistance on the parent’s participation in CPSMs, if the parent is not already participating in them.
(ii): The FSCW shall assist the parent, with substantial deference to parental autonomy, in self-monitoring parental choices, considering how well or poorly those choices serve the child’s welfare, and contemplating alternatives that might serve the child’s welfare better. The FSCW will be trained to be a parental resource rather than an imposing authority in this process.
(4): If either the FSCW or CF determine that a child is not in imminent physical danger but that the
child’s long-term welfare is being substantially compromised (according to the definition of Abuse or Neglect defined in 20-8-140 of the SHF Revised Statutes) by the child’s current home environment, (a): the parent can voluntarily submit to a process of Intensive Community Intervention (ICI), or
(b): the Administration shall investigate and determine if, by a preponderance of the evidence, the Administration’s determination accords with that of the FSCW or CF.
(i): If the Administration finds by a preponderance of the evidence that the child’s long-term welfare is being substantially compromised, the Administration shall initiate ICI.
(ii): If the Administration does not find that the child’s long-term welfare is being substantially compromised, then all adult parties will be brought together for a determination of how to proceed, which might include reassigning the parent to a different community, reassigning a new FSCW to the parent, or, if the parent prefers, maintaining the current FSCW and Community (and thus CF).
(c): Intensive Community Intervention (ICI) requires the voluntary involvement of Community and extended family members, as well as of teachers and others involved in the child’s life, working with the parent to rectify and remedy the problems that have been identified as substantially compromising the child’s long-term welfare. ICI strategies always include the determination of a designated period after which the case will be reviewed, and can include any combination of the following:
(i): parental behavior modification efforts, closely monitored by Community and extended family members, utilizing whatever institutional assistance is required (such as drug rehabilitation programs),
(ii): temporary in-home residence of Community or extended family member to assist the parent,
(iii): temporary placement of the child with a Community or extended family member,
(iv): limited or monitored parental contact with the child, and/or
(v): professional assistance in concert with the Community and extended family assistance.
(5): If as the result of an investigation into allegations of child abuse or neglect, or if an FSCW or CF determines that a child is in imminent physical danger; or if, after the designated period for an ICI, both the FSCW and CF determine that the ICI has been unsuccessful; or if an ICI was impossible due to a lack of willing extended family or Community members, the Administration will initiate a child custody hearing, adhering to the following guidelines:
(a): The Administration must find, by clear and convincing evidence, that the child’s long-term welfare is being substantially compromised, or that the child is in imminent physical danger, before parental rights can be wholly or partially terminated.
(b): The value of affective bonds and remaining in the child’s familiar home shall be given full weight as important, but not entirely decisive, factors in consideration of the child’s custody arrangements.
(c): Parental rights shall be terminated or limited only to the extent necessary to preserve the child’s safety and to secure the child’s long-term welfare.
(i): This Act imposes no presumption concerning the number of people that may be granted parental rights regarding a particular child, nor the precise scope of such rights in any given instance.
(ii): Preference will always be given to preserving and encouraging established healthy affective bonds between adults and the child, rather than severing such bonds in pursuit of parental exclusivity.
(iii): Partial, delineated parental rights may be granted to various adults, who must devise decision making guidelines commensurate with their various parental rights, with the assistance of an FSCW.
(iv): The Administration shall generate guidelines for relinquishing the rights and responsibilities associated with partial parental rights commensurate with the extent of those rights and responsibilities, and in accord with the child’s best interest, ensuring continuity of comprehensive parental services.
(v): “Parent,” for the purposes of this statute, does not refer to anyone with limited parental rights, but only to those with primary custodial rights, to be fully defined by the Administration.
(d): Consideration of custodial alternatives shall be given concurrently with consideration of the parent’s, and others’, custodial rights.
(i): The termination or diminution of parental rights do not necessarily result in an immediate or eventual loss of physical custody: The child will always be placed in the best available home, all factors considered, even if parental rights have been revoked from, or not yet granted to, the adult in whose custody the child is placed.
(ii): Preference will be given, in order, to (1) extended family members who are also members of the same Community as the parent, (2) other Community members, and (3) other extended family members, in any change of custody of the child, whether it is a temporary arrangement, the placement of the child in a foster home, or an adoption proceeding. The Administration has the authority to supersede or alter the ranking of these preferences in accord with particular circumstances.
(iii): No racial preferences beyond those implicit in the preferences above shall be implemented.
(iv): If the child can not be placed in a home according to the above preferences, and the Administration determines, by clear and convincing evidence, that the child’s safety or welfare is too drastically compromised in his/her current home to leave him/her there, the child will be placed in foster care and adoptive parents will be sought, with the parent retaining those rights of visitation, if any, that the Administration finds contribute to rather than detract from the child’s long-term welfare.
(e): Prospective adoptive parents must be members of a Community for one year prior to adoption, and must be recommended by their FSCW and the CF of the Community, and by a majority vote of both the community to which they belong and the Community from which the child is being adopted.
(f): A mother may not put her child up for adoption until 36 hours after the birth of the child if the decision was made in writing at least two months prior to birth, or three weeks after the birth of the child if the decision was not made in writing at least two months prior to the birth of the child.
(6): Extended family members, as defined in subsection (a), have the right to maintain a relationship with the child, subject only to the limitations delineated in subsection (b).
(a): An extended family member is, for the purposes of this statute,
(i): any blood relative of any parent (as defined in section 2 of this Act) that the child has ever had, who has formed a healthy affective bond with the child, as determined by clear and convincing evidence, according to criteria to be delineated by the Administration,
(ii): any other individual who, in a relationship sanctioned by any parent (as defined in section 2 of this Act), has formed a healthy affective bond with the child, as determined by clear and convincing evidence, according to criteria to be delineated by the Administration.
(b): The legal rights of extended family members (as defined in subsection (a)) to access to the child are limited in the following ways:
(i): No parent shall ever be obligated to relinquish temporary physical custody of a child to any current non-parent, unless by a formal hearing of the Administration the non-parent’s ability to have occasional temporary physical custody of the child, as opposed to mere visitation rights with parental supervision, is held, by clear and convincing evidence, to be vital and indispensable to the child’s long-term welfare, though the parent can rebut this finding by demonstrating by a preponderance of the evidence that any occasional relinquishment of temporary custody to the petitioning non-parent would be contrary to the child’s long-term welfare. If a finding in favor of the petitioning non-parent is made, the amount of occasional temporary physical custody shall be limited to the least possible to satisfy the needs of the child’s long-term welfare. The parent has the right of appeal; the non-parent has no right of appeal.
(ii): Non-parents with rights of access to a child are required to exercise reasonable self-restraint regarding the amount of access they demand, the degree of inconvenience they impose on the parent and other family members, and any disruptions or tensions that their relationship with the child may cause to or among the parent, family, or child. The Administration shall draft explicit guidelines regarding these issues.
(iii): Non-parents with rights of access to a child, who do not belong to the parent’s Community, shall be required to attend the Community Parent Support Meetings (CPSMs) at a frequency to be determined by the Administration, taking into consideration all relevant factors, though the frequency required may not be more than once per month nor less than once per year.
(iv): The parent can file complaints regarding non-parents with rights of access to the child, which the Administration is obligated to investigate, preliminarily through the agency of the child’s FSCW and CF. If the problem cannot be resolved to the satisfaction of all parties through the agency of the FSCW, CF, and CPSMs, a hearing must be held to determine if, by a preponderance of the evidence, the non-parent has abused his/her right of access to the child according to the criteria established by the Administration. If such a finding is made, then the non-parent shall have his/her right of access to the child revoked. Neither the parent nor the non-parent has the right of appeal regarding the determination of the Administration.
(20-8-140, a fictional statute to which I have cross-referenced in this hypothetical statute, would include conventional definitions of Abuse and Neglect, plus extreme emotional abuse).
I. Social Policy Concerns Addressed by the Act
This Act addresses the care and custody of children, including the rights and responsibilities of extended family and community members involved in a child’s life, the procedures for identifying and responding to child abuse and neglect, and the procedures for reassigning legal custody of a child. The purpose of this Act and the responsibility of the Administration is to facilitate communities and families in providing healthy and stable homes for children by means of mutual support, encouragement, involvement, oversight, and, in the last resort, reassignment of a child’s custodial arrangements, among family and community care givers. It is based on the principle that the state should be a proactive agent and vehicle of the people, to be utilized in conjunction with other social institutions in the facilitation of the welfare of its residents, rather than a reactive intervener of last resort, standing aside to permit preventable failure and subsequent suffering, and only then stepping in to pick up the pieces at greater public expense and with less efficacy.
This Act accordingly reconceptualizes the state’s role, relinquishing its theoretical commitment to initial minimal intrusion on family autonomy until a threshold is reached triggering a sudden extreme and generally inefficacious intervention (see Clare Huntington, “Mutual Dependence in Child Welfare,” 82 Notre Dame L. Rev. 2007, 1485: 1497-1505), and, in its place, constructing a state-family-community system which institutionalizes support to families prior to, and in prevention of, the failure of a family to provide for a child’s welfare.
The Act is characterized by two essential innovations: 1) a legal construct called “Community,” which mediates, buffers, and articulates the primarily coincidental and only marginally or superficially conflicting real interests of parent, child, and state; and 2) a proactive rather than reactive approach to child welfare policy. The Act meets the challenge of reconstructing and refining, through legal artifice, a traditional and organically produced social institutional form (i.e., community) that has grown increasingly attenuated with the growth of modern individualism, while not violating the Constitutional 14th Amendment liberty interests of parents (and others) which give that cultural individualism legal teeth. It does so in order to meet the corresponding political and legal challenge of increasing the constant and constructive involvement of the state in family and community life in order to decrease the extreme and often destructive involvement made more frequently necessary by its absence (or less comprehensive and humanized presence).
The central innovation of this Act is the introduction of the legal reincarnation of the Community, which serves, with focused intentionality in its new form as a legal construct, to mediate the tensions and alliances among the interests of parent, child, and state, and as a buffer coordinating the functions of family and state in more cooperative and mutually accommodating ways. It provides an arena of support, communication, negotiation, and resolution. It is a medium of both state coercion and parental resistance, the conflict between the two channeled, filtered, or dissipated according to the moderating, focusing, or amplifying influence of a middle-range of social organization through which both the individual wills of parents and the corporate will of society, via the agency of the state, must pass. It provides a familiar and intimate zone in which children have an increased opportunity to formulate and express their will, in which subcultural diversity can hold out against an often overreaching and categorically biased state demand for conformity, but in which authentic child abuse and neglect has reduced opportunity to hide. While no law or institution can either eliminate child abuse and neglect or erase all errors of overcontrol or undercontrol, of false positives and false negatives, the Community is designed to lower the rate of both child abuse and neglect itself and of errors in detecting it at both extremes, and to coordinate the freedom of parents to raise their children as they see fit with the desire of the state to ensure that those children are raised in a safe, healthy, and nurturing home.
The Community, as defined in this Act, 1) humanizes the state, 2) provides parents with improved due process protections, 3) channels information to the state to assist in accurate administrative decision making, 4) accommodates and protects diverse practices, 5) reduces institutionalized bias on the basis of race, ethnicity, English language proficiency, or social class, 6) mobilizes and moderates local normative control in service to child and family welfare, 7) channels relevant information and guidance to parents to improve parental decision-making, 8) facilitates continuity without sacrificing flexibility, 9) preserves and fosters rather than severs healthy affective bonds, 10) provides a buffer for strained relationships among adults involved in a child’s life, 11) provides a vehicle for including the child in the process, and, most fundamentally, 12) provides a vehicle of proactive state support of parents and families instead of state reaction to structurally-facilitated family failure.
The Community, as the humanized incarnation of the state, helps reduce the error of overly mechanistic or politicized responses by bureaucracies often processing children rather than attending to their needs, by relying instead on an intervening layer of intimate social bonds through which the state’s decision-making must operate. The current dysfunctions are poignantly illustrated in The Lost Children of Wilder (Nina Bernstein, 2001), from the institutionalized brutality of the Hudson Training School for Girls (pp. 8-26), to the institutionalized racism resulting from farming out child welfare services to private religious organizations (pp. 44-45), and on through the stories of bureaucratic in-fighting, severed ties, and inadequate mechanisms for adapting available human resources to children’s emotional needs. The need to humanize the process, to mobilize the many people of good will who would take an interest in the welfare of the children in their community were there a functioning community through which to exercise that good will, and to facilitate their ability to do so in concert and through mutual support rather than in mutual isolation, is eloquently argued both by the anecdotal evidence of current bureaucratic dysfunction (see Wilder; Elizabeth Bartholet, Nobody’s Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative, pp. 8-15), and historical analyses of how our child welfare system became a vehicle of often punitive race, class, and gender bias through paternalistic and ethnocentric assumptions about the duty of the state and the incompetence of the people perceived to be (and often in reality) most in need of its services (see, e.g., Jill Elaine Hasday, “Parenthood Divided: A Legal History of the Bifurcated Law of Parental Relations,” Geo. L.J. 90: 299; Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence, Viking: 1988; Annette R. Appell, “Protecting Children of Punishing Mothers: Gender, Race, and Class in the Child Protection System,” 48 S.C.L. Rev. 577 (1997)). The viability of alternative, community-mediated, and family empowering approaches, on the other hand, is illustrated by the anecdotal evidence of successful historical and contemporary examples (see e.g., Dorothy E. Roberts, “Black Club Women and Child Welfare Lessons for Modern Reform,” 32 Fla. St. U. L. Rev. 957, 2005; Huntington, 1531-36 (discussing state-sponsored family-service programs that, while not specifically community-mediated, reflect the kinds of services that community mediation can most effectively deliver)).
Parental due process protections are improved as a result of this humanizing process by providing parents with a social resource through which their story can be effectively told. The Supreme Court, in Santosky v. Kramer, identified some of the structural challenges to the adequate provision of due process to parents in TPR proceedings, such as the state’s far superior ability to mount a case than the parents’ ability to mount a defense, and the conceptual separation of concern for the child’s welfare from concern for the parents’ due process rights (455 U.S. 745 (1982): 1310-11). In Lassiter v. Dept. of Soc. Servs., the Court accorded the loss of parental rights less due process than the loss of liberty, holding the former not to merit the requirement of appointed counsel (452 U.S. 18 (1981)). The Community, professionally organized and represented by the Community Facilitator, serves to mitigate these deficits by acting as a mediator, counselor, and conduit of information (sec. 2(b)(iv)). The resource thus provided helps to avoid what the dissent in Lassiter accurately identified as the average parent’s dilemma when opposed by the state in a legal proceeding: An inability to negotiate the rules and procedures of the court, resulting in an inability to mount an effective defense, coupled by, as in Ms. Lassiter’s case, what may well be a tendency for such lay people in such situations to exacerbate the judge due to their inability to follow the procedures expected of a litigant in court (pp. 62-60).
This by-product of an institution (the Community) serving multiple other purposes, incidentally increasing due process protection to parents in TPR proceedings, fares well under the scrutiny of the Mathews v. Eldridge test (424 U.S. 319, 335 (1976)): The Supreme Court has made clear that the parental interest in their parental rights is of the highest order of magnitude (see, e.g., Lassiter (1981), Santosky (1982), and Troxel v. Granville 120 S.Ct. 2054 (2000)); the state’s interest in keeping children with fit parents coincides rather than conflicts with this interest, while the state’s interest in efficiency is served by the multi-functional quality of the Community (including the more family-supportive roles of the professionals involved) by which parental due process is increased; and, finally, the benefits of this additional procedural resource in avoiding error is substantial. A corollary of this increased due process protection to parents is an increased flow of relevant information to the state, both to the Administration and the courts, thus resulting in the reduction of error discussed above. The benefits emanating from this one institutional innovation are widespread: Error is reduced not just in a single court proceeding, but in all administrative and legal action involving child welfare and parental rights.
The additional due process protections accorded to parents through the medium of the Community are substantive as well as procedural: The Community protects sub-cultural diversity and forms a bulwark against class, race, and cultural prejudices operating through the apparatus of the state. By providing people the opportunity to belong to a cultural (rather than geographical) Community if the choose (secs. 2(b)(i), (iii)), they are given an opportunity to preserve and insulate culturally divergent customs and practices. While the state still has a presence, and (what the state deems to be) unambiguously harmful practices will be prohibited, people with divergent customs are given a greater opportunity to preserve them in this Act than they would have in its absence (see sec. 2(b)(iii)). Furthermore, just as the Community protects divergent sub-cultures from the excesses of the conformity-imposing tendencies of the state, it protects historical victims of discrimination from the prejudicial presumptions of poorly informed state actors by embedding state actors in the Community with which they will be interacting.
The Community is an arena where compromise can be achieved: If Somali refugees wish to retain a symbolic remnant of female genital mutilation that does not inflict the physical harm of the actual practice (see “Refugees’ Beliefs Don’t Travel Well,” Chicago Tribune, Oct. 28, 1996), then, despite our cultural outrage at the symbolism itself, that can and should be accommodated. If it is Afghani custom for loving parents otherwise providing appropriate care to kiss, as a sign of affection rather than an expression of sexual intent, the penis of one’s child (see State of Maine v. Kargar (Maine S.Ct. 1996)), then a well-informed state might wisely choose to prioritize substance over form.
Of course, prioritizing substance over form does not always favor the divergent cultural practice. The Administration, if not the courts, might choose not to privilege spanking children with a ping-pong paddle for two hours in accord with the practices of a fundamentalist religious sect (see In Re Marriage of Hadeen, 619 P.2d 374: 620 (Wash. App. 1980)). Nor would it be incumbent on the state to permit parents to allow their children to die in lieu of providing medical care due to membership in the Christian Science church (see Hermanson v. State of Florida (Fl. S.Ct. 1992)). To the extent that federal law and the Constitution would allow, the Community replaces all other forms of deference to the particular, neither allowing it to justify what would otherwise be considered a clear and unambiguous infliction of substantial and palpable harm, nor forcing it to accede to vague and suppositional mainstream sensibilities. The issue remains the child’s welfare: Religion and culture can not excuse outright violence to the child, nor should the ethnocentrisms that seep through the state deny a family the discretion to provide a loving and safe household in accord with its customs and beliefs.
The Community reduces the salience of racial and class biases in three primary ways. First, it empowers the members of the sub-group, providing a bulwark against marginalization. The “othering” of poor families of color that Appell identifies (1997, p. 579) can not so easily occur when the “other” is not, in a sense, “divided and conquered.” When represented and expressed by a Community that is the overlap of “state” and “family,” the “other” becomes internalized, recognized, acknowledged, and, to some extent, accommodated. The norms are negotiated in that arena, not defined and imposed from without. Similarly, the frequently encountered language and cultural barriers Appell describes (Annette Appell, “Spanish-Speaking Caregiver,” 7 Nev. L.J. (2007)) are mitigated by the medium of a Community that acts as a linguistic as well as cultural translator. Furthermore, the thus-far prevalent cultural assumption is reversed: Instead of depriving a loving caregiver of her granddaughter on the basis of the erroneous assumption that she would be carrying the burden alone (see id., pp. 116-17), a Community both reinforces and raises the profile of extended family and community care-giving.
Second, the Community reduces the differential visibility of families of different socioeconomic classes (see Appell 1997, p. 584) by creating a continuous, recurring public interface for far more families regardless of socioeconomic class, an interface whose primary purpose is to ensure the welfare of the children in the Community. To a large extent, it merges together what Appell (1997, p. 581) identified as the bifurcated branches of public and private family law, one based on more intrusive treatment of the poor associated with child welfare intervention and the other based on more deferential treatment of the rich associated with property rights adjudication (see secs. 5(c), (d) of the Act). While it may be the case that more affluent than poor families opt for a Parental State-Disengagement Determination rather than belong to a Community, it is likely that many affluent families will be attracted to the material and social benefits of Community membership, and that the normative control (discussed below) exerted by Communities on its members will have an ameliorative effect across classes. Even those families that opt for a PSDD will have at least one encounter with the state in which their parenting skills and inclinations come under close scrutiny (sec. 2(d)), which may be one more encounter than they otherwise would have had.
Third, the Community, and complementary legislation (see sec. 2(b)(iv)(I)), reduce the rate of neglect-due-to-poverty by providing material, informational, emotional, and social support according to need, thus mitigating what Appell (1997, p. 585) identifies as the breach of white middle-class norms of proper child care that accompanies poverty. This channeling of resources and services in proactive support of families produces many benefits, just one of which is the reduction of class bias in our child welfare system. (Other benefits are discussed below.)
Like traditional communities before it, the Community will undoubtedly function as a vehicle of local normative control through the mutual enforcement of informal rules. This is accomplished by means of the diffuse social approval and disapproval of its members (see class, Jan. 27). The combination of the state’s involvement in the Community (see sec. 2(b)(iv)), and the historical tendency of communities in general to reinforce behaviors that are conducive to children’s welfare, are sufficient to ensure that the Community’s norms do indeed invoke positive and negative reinforcement of parental behaviors that, respectively, positively and negatively affect children’s welfare. In fact, due to the institutionalized interdependence Community members (see secs. 2(a)-(c), 4(b)), the externalities of individual parental choices is increased, and the incentive for other Community members to encourage good parenting and discourage bad parenting (as defined by some articulation of state and Community values) is correspondingly increased.
Indeed, the most likely, and perhaps most legitimate, criticism that may be leveled against this Act is that the Community itself can be a very onerous intrusion on family autonomy and privacy. But, aside from the opt-out provided by the PSDD, the tyranny of the Community is, if not necessarily reduced, then at least made more coextensive with individual freedom, by allowing parents the option of selecting a cultural Community that best expresses their individuality (see 2(b)(i), (iii)). Leaving aside for now the discussion of how the Act moves from, as Huntington put it, the somewhat mythological “freedom from” notion of family autonomy to a self-determination-increasing positive mutual engagement model (2007, pp. 1510-20), and considering instead the residual need of the state to intervene in remaining child abuse and neglect cases, the Community provides an appropriate balance between a family’s right to privacy on the one hand, and the state’s need to be vigilant in the protection of children’s welfare on the other. Deficiencies fostered by our current social institutional framework, such as the very inadequate job we currently do of identifying and intervening in cases of sexual abuse (class, Jan. 15), and the decreased ability to intervene in cases of child abuse and neglect in affluent households due to their decreased interaction with public services (see Appell 1997, p. 584), can be addressed more effectively, with a moderate and reasonable compromise of privacy, by means of a Community to which each family belongs, and under whose intimate vigilance each family thrives.
Along with the encouragement of practices conducive to child welfare and discouragement of practices antithetical to child welfare, the Community provides a conduit of information and guidance to parents to help them become familiar and comfortable with positive child care practices, as well as with coping skills to help avoid spontaneous responses to events that would be considered abusive or counterproductive to the child’s welfare. The Community Parenting Support Meetings (sec. 2) are, essentially, self-help group meetings held at regular intervals for just this purpose, as well as to resolve problems and address needs of individual families as they arise. As Huntington points out, this type of proactive assistance increases rather than decreases family self-determination, by “reducing the chance that a crisis will occur and the state will remove the child from the parent’s home” (2007, pp. 1511-12).
The reliance on the Community as the arena in which both proactive and reactive needs are addressed first, and are addressed most, balances permanence in the provision of a home for a child with flexibility in meeting the demands of ensuring that the home is a safe and nurturing one, and that all adults who have healthy affective bonds with the child are allowed to remain in that child’s life. As Bernstein explained in The Lost Children of Wilder, citing Bolby’s Attachment and Loss to explain Lamont’s traumatization by the shuffling around he experienced in the New York child welfare system, young children experiencing repeated cycles of attachment to adult care givers and subsequent loss develop reactions of anger and anxiety in association with the prospect of future attachments (2001, pp. 257-58). The Community provides an increased layer of the familiar around the family, facilitating the satisfaction of the sometimes conflicting demands of continuity on the one hand, and placement in a safe and healthy home on the other. It accomplishes this by 1) looking for foster care, adoption or temporary placement options within the Community first (secs. 5(c), (d)), 2) not severing the healthy affective bonds that the child has already formed in order to create parental exclusivity with each new placement (secs. 5, 6), and 3) investing in the proactive assistance to parents that will increase their ability to provide a healthy and safe home to their children in the first place (sec. 2(b)(iv)).
Our current child welfare system dramatically fails to meet these demands. Elizabeth Bartholet, in Nobody’s Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative, identifies how the dysfunctional combination of excessive individualism and lack of community (p. 2), the notion of family autonomy as freedom from the state (p. 3), and “a powerful blood bias” (p. 7), creates a model which sets up often loving but poverty-impaired biological parents to fail and children subsequently to receive suboptimal care. According to Bartholet, child welfare services either leave abused or neglected children in the care of damaged parents deemed “good enough,” or place the child first in a sort of limbo awaiting the improbable event of the parent’s mostly unaided resolution of her problems, and then set the more-damaged-than necessary children adrift in a foster care system that is unlikely to provide either a stable or nurturing home (id., pp. 8-15).
Bartholet’s proposed solution involves the combination of a more proactive state assisting parents from pregnancy onward (id., pp. 15-16) and “concurrent planning,” “proceed[ing] on two tracks simultaneously, working with parents toward family reunification, while at the same time developing an appropriate adoption plan” (id., p. 18). The Community serves as a vehicle for a more comprehensive solution that incorporates Bartholet’s proposal, but also improves upon it. Not only does it provide a conduit for the state’s proactivity, but it does so with an inclusiveness and constancy that a mere patchwork of state assistance programs can not match. It facilitates blending concurrent planning with a focus on continuity for the child, by involving prospective adoptive parents in the child’s community from the earliest possible date (see secs. 2, 2(a), 5(e)), and by not forcing, as a matter of policy rather than as the result of an individualized determination, either prospective adoptive parents or biological parents (or any other care giver) to severe their ties with the child if the child ends up in the care of another (see secs. 5(b)-(d)).
This latter characteristic of the Act, of preserving rather than severing the healthy affective bonds that children have formed with adults (secs. 5(c), (d), 6), contributes not only to continuity for the child, avoiding the attachment-interruption problems described above, but also provides the child with increased adult human resources on which to draw. Who could doubt that, had Alicia’s loving bond to Lamont not been arbitrarily severed (see Bernstein, pp 300-302), had care instead been taken to preserve it, that Lamont would not have fared better? Or, for that matter, had Shirley been able to maintain some kind of relationship with Lamont throughout his childhood, even if not a custodial one, that they both would not have benefited (id.)? The Act explicitly allows for any number of adults to be involved in a child’s life, to have plenary or circumscribed roles, responsibilities, and rights, and for those roles, responsibilities, and rights to be coordinated in mutually accommodating ways by the Community and the agents of the Administration (secs. 5, 6). Through these mechanisms, the Act addresses and mitigates many of the problems associated with allowing more than two parents, while retaining all of the benefits (see class, March 5).
The literature is rife with examples of severed or attenuated bonds between children in the system and adults who love them, often followed by disastrous outcomes for the child (or simply the loss of a loving parental figure) (see, e.g., Apell 1997, pp. 592-93; Appell 2007, pp. 116-21; Bernstein 2001; Suzanne Goldberg, “Family Law Cases as Law Reform Litigation,” 17:3 Colum. J. Gender & L. 307, 2008). The case law also provides numerous examples of the exclusion of adults who wished to form a relationship with the child, frequently on the basis of parental exclusivity (that is, only two parents per child) (see, e.g., Quillon v. Walcott, 434 U.S. 246, 1978; Michael H. v. Gerald D., 91 U.S. 110, 1989; Sider v. Sider, 334 Md. 512, 1994; In Re Baby M., 109 N.J. 396, 1988; Ohr v. Ohr, 97 P.3d 354, 2004; In the Interest of CTG, 179 P.3d 213, 2007). While in some individual cases a determination might be reached that a particular relationship is not in the child’s best interest, the presumption that a child can have no more than two adults with parental or quasi-parental rights severs valuable bonds and reduces the affective human resources available to the child.
The focus on fostering and preserving healthy affective relationships with adults, and contextualizing the child’s welfare by membership in a Community, provides resources that can also serve as a buffer when necessary between two adults with shared parental rights. In In Re the Paternity of Baby Doe (207 Wis. 2d. 390, 1996), the court held that, absent a statutory distinction, the rapist father of a child had the same rights as any biological father. If, even under a more refined legislative regime, a rapist-father’s relationship with the child were found under certain circumstances to be in the child’s interest, the presence of multiple adults in the child’s life, and of a Community enveloping those relationships, could more easily accommodate a mother who might well be highly averse to any kind of interaction with the father. Even under less dramatic circumstances of divorced parents highly antagonistic to one another, the best solution at times, if all else fails, might be to preserve the child’s relationship with each while sparing all from forcing a relationship on the two antagonistic adults. Moving away from the current insular family microcosm and toward a Community model of socially contextualized families would facilitate such flexibility.
The Community, as a facilitated organic medium for, among other things, interpreting, coordinating and accommodating the wills of various actors vis-a-vis the children whose welfare is the purpose of this Act, is able to give voice to those actors whose voice is most marginalized, though whose interests are most pertinent: the children themselves (see sec. 2(b)(iv)(III)). Just as the Community can interpret for care givers who are not fluent in English, it can interpret to some extent for children whose cognitive development renders their conceptual language to some degree out of sinc with the conceptual language of the adults around them. This is a function of the combined genius of numbers and of intimacy: The more intimate one is with a child, the more that adult can intuit the child’s thoughts, wishes, and perceptions; and the more adults so positioned, interacting both with each other and with the child over extended periods of time, the more able they are collectively to extract and render comprehensible the perceptions and wishes of that child.
Children’s participation in Community Parenting Support Meetings, and their interaction with the Community Facilitator and with their family’s Family Support Case Worker (if they have one), will help to empower the children, and teach them through experience not only civic participation, but also how to live in a community, how to advocate for themselves, and how to engage with the world in a more aware and proactive way. The skills they thus actively develop, as well as the institutional apparatus through which they develop it, will help mitigate some of the inherent and, to varying degrees, intractable challenges facing the extension of rights of self-determination to children.
As Justice Douglas put it in his dissent in Wisconsin v. Yoder, “the children should be entitled to be heard” (406 U.S. 205, 241: 244 (1972)). In Yoder, the rights of the parents, the state, and even of the reified Amish religion and community, were all considered, but the children were the ball rather than the players moving it down the field (see class, Jan. 29, though the metaphor is mine). The difficulty of obtaining a fully informed and well articulated statement from children involved in matters of concern to them, and the question of how to weigh such statements if obtained given the children’s cognitive limits (id.), contribute to the marginalization of a child’s will in determinations of that child’s fate.
Perhaps most saliently, how could the state enforce a child’s right vis-a-vis a fit parent, when that child remains dependent on that parent (class, Feb. 3)? One step toward resolving these challenges is to provide the child with a social resource that is neither the parent nor the state, that is familiar with and supportive of the child, that is not an individual either guessing at the child’s best interest (e.g, a guardian ad litum) or a lawyer representing the child’s uninterpreted express views and preferences (see Elizabeth Brodsky’s class presentation on April 21), but is rather a Community that knows the child and can help the child to discover, formulate, and articulate his or her own views and preferences most effectively. And, perhaps most uniquely and importantly, the Community reduces the child’s absolute dependence on the parents with whom he or she is identifying imperfectly aligned interests.
The parental advantage is far from eliminated in this context: The Community is always of the parent’s choosing (unless accepted by default). In Yoder, the relevant Community (the Amish community) would have sided unambiguously with the parents. The children would have had to leave their Community as well as their families to escape the adult will to which they were being subjected. But the Community will provide many children in many situations with an adult social resource that is more attuned to them then a GAL is likely to be, and is capable of being the child’s most powerful advocate in certain circumstances. And the presence of state actors in the Community (the Community Facilitator assigned to the Community itself, and the Family Support Case Workers assigned to families within the Community) helps to provide at least some counterweight to the Community’s own potentially totalitarian inclinations.
Those totalitarian inclinations pose a serious challenge. The Community can as easily be the oppressor as the liberator, an increased weight dictating to the child (or parents) rather than an asset supporting them. Care must be taken in the design and management of Communities to prevent them from becoming suffocating forces, and to maximize their potential as an empowering resource.
In many ways, the Community’s ability to perform effectively its functions is due to it being a permanent and familiar presence rather than a foreign agent suddenly introduced in response to events. And this, of course, is the crux of its utility: It is the vehicle of a proactive rather than reactive approach to the provision of child and family welfare services. The Community is the comprehensive operationalization (and marginal refinement) of Huntington’s “‘engagement with’ model of family-state relations,” which replaces “the ‘freedom from’ conception of family autonomy” (2007, p. 1485). Like the African-American child and family welfare advocates at the turn of the 19th to 20th centuries (Roberts 2005), this model is focused on supporting rather than penalizing parents and families facing the challenges of providing for their children, and particularly those families that are further burdened by the deprivations of poverty (Huntington 2007, p. 1494).
Following Barbara Bennett Whitehouse’s (Ecogenerism: An Environmental Approach to Protecting Endangered Children, 12 Va, J, Soc. Pol’y & L. 409, 423 (2005), cited in Huntington 2007, p. 1496) identification of the salience of a child’s environment, “including a child’s peer group, neighborhood, and school” as “the systems surrounding a family” that should be supported in conjunction with the support of the family itself (Huntington, p. 1496), the Community is the vehicle for directing that support and coordinating the various components of a child’s environment. And rather than providing the “one-way ratchet” effect of regulation-imposing state aid (Huntington, p. 1506), the Community provides a two-way forum of state and family articulation.
As Huntington points out (citing Frances Olsen, “The Myth of State Intervention in the Family, 19 U. Mich J.L. Reform 835 (1995)), the state is already heavily implicated in family decisions, first by “determin[ing] the contours of the world in which a family lives,” and second by “establish[ing] a system authorizing parents to make some decisions concerning children” (Huntington, p. 1514). In essence, the illusion of family autonomy is a function of the degree to which we accept the state’s involvement as a fixture of the social institutional environment, and so do not identify it as state involvement at all. Public education, for instance, is an enormous state investment in our children’s development (Huntington, p. 1522), one that affects children’s development in an often cooperative and occasionally conflicting dialectic with individual families (or, indeed, individual communities), but one that is not generally perceived as an unacceptable intrusion on family autonomy. Indeed, most parents have come to see it as an indispensable state service.
There is no inherent, qualitative difference between the institution of public education, which parents generally accept and appreciate, and the institution of the Community established by this Act, which families could well come to accept and appreciate in much the same way. Just as the state has created an elaborate apparatus, both local and ubiquitous, to provide public education services, so too can it provide a similar apparatus, the corollary of the local school, providing comprehensive support to families in the enterprise of raising their children. And just as public education is an enormous investment that has paid off enormously, the fully endowed Community (see sec. 2(b)(iv)) holds the same promise multiplied many fold.
The Community as a legal construct satisfies not only the need to provide a conduit through which to channel state services to families that need them, but also the need to replace, in some form, a valuable traditional social institution that has eroded with increased mobility and increased familial and individual insularity. The Yoder Court, by one not terribly strained interpretation, appears to have been implicitly informed by an appreciation of and deference to the stability and nurturing environment that a well-functioning community provides (406 U.S. 205 (1972)). The Community is the family writ large and the state in humanized form; it is the middle ground. As such, it provides many benefits beyond those that are the focus of this discussion, such as, by permitting and coordinating multiple adults participating in a child’s life, the facilitation of non-traditional family arrangements (see In Re Baby M 1988; John Bowe, “Gay Donor or Gay Day?” New York Times, Nov. 19, 2006).
The Community is also an improved social thermostat, responding in real time to evolving situations, rather than, as in our current child welfare regimes, relying on a remote state which must choose between removing a child from his or her home (and thus ensuring that he or she is at a statistical disadvantage of faring well (class, Jan. 22), as well as risking the outright abuse found within the foster care system (see Taylor v. Ledbetter, 11th Cir. 1987)), or, conversely, risking a catastrophe such as that illustrated by DeShaney v. Winnebago (7th Cir. 1989), in which a boy was not removed from an abusive home and, subsequently, was beaten into a coma by his father and suffered permanent brain damage as a result. The Community satisfies the risk-aversion of the state (class, Jan. 22) by being its more vigilant immediate presence, but simultaneously permits less precipitous removal of the child than is often the result of that very same risk aversion (see, e.g., Appell 2007, pp. 116-121; Bernstein 2001, pp. 189-97).
The Act contextualizes all decisions made regarding child welfare, and places all adults currently or prospectively involved in such decision-making (see, e.g., secs 2, 5(e), 6(b)(iii)) in the relevant Communities, aided by the trained professionals within those Communities. The professionals are attached to both levels (a CF for the Community as a whole, and FSCWs for individual families within the Community) in order to increase communication and cooperation across levels. Some flexibility for individual Communities and care givers is incorporated into the Act, such as, in sec. 2(c), allowing for some variance in the frequency of Community Parental Support Meetings, in sec. 2(c)(ii) allowing for accommodation of individual parents with scheduling problems, and in 6(b)(iii) allowing for variation in how frequently adults with more peripheral roles in a child’s life must attend meetings (depending on factors such as geographic distance). This flexibility combines assurance of actual integration into the Community with avoidance of making Community membership an onerous burden.
The use of the Community, with the oversight of the CF, to target resources to families in need (sec. 2(b)(iv)), increases the efficiency of the channeling of resources to where they are needed, and deferential assistance in most effectively utilizing those resources.
The Act strikes a balance between protecting privacy concerns and creating an intimate social context for proactively providing and targeting family services in provisions such as sec. 2(c), which provides parents with an opportunity to opt out of the entire proactive apparatus of the Act, after a deferential meeting to determine that there is no reason why the parent shouldn’t be allowed to do so. This meeting is designed to ensure that no parent remains completely insulated from the child welfare system created by the Act, and to give the Administration at least one chance to detect any obvious signs of concern before a parent is allowed to retreat into the current default of family insularity that is so conducive to undetected child abuse and neglect. Parents who do not opt-out can participate with varying degrees of engagement, receiving varying amounts of professional support, depending on a combination of their choices and the Community Facilitator’s recommendation (sec. 3).
Section 4 provides an escalating process of intervention when necessary for the child’s safety or welfare, beginning with Community support and guidance if at all possible. Due to liberty concerns, the Act cannot mandate that Community members provide that support and guidance, though the hope is that by institutionalizing the opportunity and providing a framework through which to operationalize Community support and guidance (absorbing the transaction costs, so to speak), such support will become the norm rather than the exception. Section 5 continues the provision of steps to be taken to remove a child from a dangerous or unhealthy home, always focused on creating the least disruption possible to the affective bonds that the child has formed with adults, and contemplating available alternatives simultaneously rather than sequentially (secs. 5(d), 5(d)(i)), thus avoiding terminating a bad situation in favor of a worse situation. The concerns for maintaining continuity of racial and sub- cultural identity for the child are incorporated into the preferences outlined in sec. 5(d)(ii), and neither merit nor require any additional privilege. Sec. 5(e) further facilitates continuity for the child in adoption proceedings, and increased assurance of a good fit, by involving the prospective adoptive parent in a Community as soon as adoption proceedings begin, and encouraging involvement in the child’s Community as soon as possible by requiring the Community’s approval of the adoption.
Section 5(f) is a slight modification and refinement of current (Colorado) rules of adoption requiring a four day waiting period after birth before a mother can put her child up for adoption (CRS sec. 19-5-103.5(1)(b)(IV)). Section 5(f) distinguishes between a considered decision made well before birth, and a precipitous decision made after birth. While sec. 5(f) recognizes the wisdom of giving every new mother a brief opportunity to reconsider her choice, it also recognizes that it is in the interest of mothers who made that choice rationally well prior to birth to abbreviate that period as much as possible (36 hours in this case), while for mothers who may be making the decision more precipitously it is important to extend that period enough (3 weeks in this case) to ensure that it is, in fact, a well-considered and rationally made decision.
While section 6 describes the provisions for fostering and maintaining healthy affective bonds with all adults actually involved in the child’s life, it also recognizes the parent’s ultimate responsibility and right to be vigilant regarding such relationships (sec. 6(b)(i)). Sections 6(b)(ii) and (iv) similarly protect the parent’s privacy vis-a-vis other adults with rights of access to the child, and address the logistics of ensuring that such rights are exercised in a minimally intrusive and disruptive way.
II. Constitutional Issues Raised by The Act
The Constitutional issues raised by this Act center on the 14th Amendment liberty interest of parents in their parental rights regarding the custody and care of their children, and the penumbra privacy right found through a distillation of the 1st, 3rd, 4th, 5th, and 9th Amendment rights. The case law at hand focuses on the 14th Amendment liberty interest, and, following that case law, I believe that the Act can withstand a 14th Amendment challenge. In Troxel v. Granville (120 S.Ct. 2054 (2000)), the Court, in a plurality decision, struck down a Washington statute permitting any person at any time to petition for child visitation rights against a parent’s express wishes, on the bases that the statute was overbroad, and that parents have a fundamental right protected by the due process clause of the 14th Amendment regarding the care and custody of their children. But the holding is ambiguous, in that the Court does not apply strict scrutiny despite the identification of a fundamental right (see J. Thomas’s concurrence, 2067-68). And the Court’s holding, “as applied” (p. 2060), strongly implies, if not explicitly states, that not any statute permitting people with specified relationships to the child to petition for visitation against parental will would not necessarily be unconstitutional according to this holding, but only a statute that permits “any third party seeking visitation to subject [a contrary parental decision] to state-court review” would be (p. 2061, emphasis mine). Since the Act (sec. 6) specifies that only adults that have formed healthy affective bonds with the child have such right of petition (and, had space allowed, would have made detailed provisions for biological parents who had not formed such bonds), it does not suffer the defect that caused the Washington statute in Troxel to be struck down.
Troxel only requires special deference to parents not found unfit, on the rebuttable presumption that parents have their child’s best interests at heart (pp. 2061-62). The Act above provides such deference. In sections 6(b)(i), (ii), and (iv) of the Act, the special deference accorded parents is codified in precise detail. Section 6(b)(i) ensures that the parent can always be present, if she chooses, in any visitation with her child by any other adult, unless a very high threshold is met to demonstrate that the child’s best interest is served, and no harm is threatened, by the non-parent’s ability to visit the child without the parent’s supervision. Sections 6(b)(ii) and (iv) specify the deference to parents required by non-parents exercising these rights, and the procedures available to parents who feel that appropriate deference (specified in the regulations) was not exercised.
The Supreme Court of Colorado, in In Re R.A. (137 P.3d 318, 2006), interpreting Troxel, construed the Colorado grandparent-visitation statute to contain a rebuttable presumption that parental determination is in a child’s best interest, the burden being on the grandparents to prove by clear and convincing evidence that it is not in the child’s best interest. The Act, by placing the state, as parens patriae (see class, April 16), in the position of the petitioner, in essence legislates precisely this proposition: In sections 6(a)(i) and (ii), petitioners for such third-party visitation rights must demonstrate to the Administration, by the same standard of proof as that identified by the Colorado Supreme Court (“clear and convincing evidence”), that they have already formed a healthy affective bond with the child, thus, if opposed by the parent, rebutting the presumption that favors the parent’s judgment.
The traditional two-parent limit, which this Act modifies, appears from the available sources to be an artifact of state statutory law rather than any form of federal law (whether Constitutional, statutory, or regulatory). The authority cited in Elisa B. (117 P.3d, 664) and Ohr (97 P.3d, 356) for the two-parent limit is the Uniform Parenting Act, as enacted by the states of California and Colorado, respectively. The Supreme Court of California weakly implied, in Elisa B. (117 P.3d, 665), that there is nothing to prohibit, a priori, a state from legislatively recognizing multiple parents, stating “we see no compelling reason to recognize [a multiple parent arrangement] here,” citing California law, and neither Constitutional nor federal law, as their authority. The Colorado Court of Appeals stated it more strongly in Ohr: “We think it best to leave to the General Assembly the decision whether to extend eligibility to seek parenting time…” (p. 358). The sharp distinction the courts consistently make, however, between “parents” and “third parties” (see, e.g., Troxel, p. 2061; Johnson v. Calvert 5 Cal.4th 84, cited in Elisa B, p. 665), raises some concerns that a diffusion of parental rights vis-a-vis a single child could confront a Constitutional challenge. However, since no provision in the Constitution speaks either directly or indirectly to this issue, one would hope that judicial restraint would prevail.
The remaining 14th Amendment question is whether the requirement of attending a Parental State-Disengagement Determination in order to opt-out of the family-state engagement (Community) provisions of the Act violates a parent’s liberty interest in the care and custody of her children. Using Huntington’s analogy of public education (p. 1522), and noting that there is no Constitutional prohibition to imposing procedural requirements on parents wishing to disengage from the state in regards to compulsory public education as onerous as, or more onerous than, those incorporated into this Act in order to disengage from the Community (see, e.g., Pierce v. Society of Sisters, S.Ct. 1925, holding that parents can remove their children from public schools only if they send them at their own expense to state-regulated private schools instead), there is no reason to believe that a Constitutional challenge to the requirement of meeting with the Administration one time in order to disengage from the arguably more invasive elements of this Act would be successful.