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200-Pound 3rd Grader Removed From Home, Placed in Foster Care

A few months ago, I wrote about the question of how state child protection authorities should handle the growing problem of severely overweight children.

Since then, there have been a few developments in that area. The state of Ohio has taken a 200-pound third-grader out of his parents’ home, and placed him in foster care. This is one of the first-ever cases of a child being placed into foster care solely because of their weight, and the parents’ inability or unwillingness to control it. State authorities classified the child’s weight as a case of “medical neglect,” and state that they applied the same standards in deciding to place the child in foster care as they would in any other case: they looked at the conduct of the parents, and whether it posed an imminent threat to the child’s health and/or safety.

In this case, a 10-year-old weighing over 200 pounds was deemed to be threatened enough by his weight to warrant placement in foster care. While an action like this is sure to be controversial, and will probably prompt heated debates about the exact role the government should play in protecting children, I think they made the right call in this case.

After all, the long-term health effects of childhood obesity are well-documented. And for such a young child to be so severely overweight, it seems like there’s a good chance that he could be in more immediate danger of illness or injury as a result of his weight.

And if the parents are unwilling or unable to take corrective action (and it’s not as if feeding your child less creates any additional expenses for the parents), the child should be removed, until his weight can be brought down to a healthier level.

Comments on the conspiracy-themed blog “Prison Planet” have a different view. Shockingly, most of them seem to think that this is part of a government scheme to poison our children with anti-psychotic drugs while they’re in foster care. I don’t really have much to say about that claim, but buried in all that paranoia is a legitimate issue: just how much government involvement in the parent-child relationship is appropriate?

Obviously, the answer to this question depends a great deal on individual value judgments. However, just about anyone but the most die-hard anti-government type will concede that, sometimes, it’s necessary for the state to intervene in the parent-child relationship, generally as a last resort, to protect the health and safety of a child.

Remember, young children are generally unable to defend themselves, or make sound decisions for themselves. We trust that parents will always act in the best interests of their children, and make reasonable decisions on their behalf. But, most people also know that parents don’t always take care of their children, sometimes with tragic results.

When parents willfully or negligently place their child in danger of serious medical problems, the state does have an obligation to intervene. Given the growing rates of childhood obesity, and the precedent set by Ohio’s actions in this case, I expect state social services to begin taking action like this more frequently in the future. If so, I hope that they’ll come up with concrete guidelines on exactly when intervention is appropriate in dealing with childhood obesity.

After all, nobody could seriously suggest that every child who’s even slightly overweight should be placed into foster care, or even that the state should intervene on their behalf. While guidelines specifically dealing with how social services will handle childhood obesity may be necessary, the basic standard for intervention should be the same as it would be in any other case of medical neglect: do the parents’ acts or omissions put the child in immediate danger of serious injury or illness?

Whether or not the child’s condition in this particular case warranted his placement in foster care is debatable. However, whatever the results of this action, and the parents’ legal challenge to it, the fact remains that, in the most severe cases of childhood obesity, intervention may be warranted.

The Challenges Mentally Ill People Face in Family Court

According to the child welfare authorities of some states, up to 1 in 5 of their cases involve a parent who suffers from a mental illness. This raises serious moral, emotional, ethical, and legal issues, none of which are simple.

If a parent is struggling to keep custody of his or her children, and suffers from a severe mental illness, this can make an already-difficult situation even more wrenching.

And while the stigma surrounding mental illness has diminished significantly in recent years, it still persists. This means that, once a person is diagnosed with virtually any mental illness, many people automatically assume that they are not fit to be parents, even if they know better than to publicly acknowledge this assumption. This is very unfortunate, because many mental illnesses, such as depression, bipolar disorder, and obsessive-compulsive disorder are often highly treatable. And while they present challenges for sufferers and their loved ones, they don’t automatically prevent a person from being a loving and competent parent.

Of course, I don’t deny that some very severe cases of mental illness can turn a person into a threat to themselves and others, and render them unfit parents. However, these cases are relatively rare.

This article (found at the Family Law Prof Blog) provides a very good overview of some of the legal challenges that parents and guardians have to deal with when facing mental illness, as well as some very poignant examples. It’s definitely worth a read.

It points to the fact that the social services system often automatically assumes that the mentally ill are unfit parents. To this day, society seems to view mental illness as something of a moral failing, or a choice, as opposed to what it is: an illness. The article even points to case workers openly mocking and laughing at behaviors that are a result of mental illness.

Furthermore, many case workers see mental illness when there is none: they might observe a parent behaving erratically, and displaying strong emotional swings. They will sometimes assume that this is a result of a mental illness, when it is actually a response to the trauma of having one’s child taken away.

I’ve written many times before that the law should (and generally does), first and foremost, consider the best interests of the child when making decisions. Everything else, such as the wishes of the individual parents, their convenience, etc. should come second (and a distant second, at that). I’ve also pointed out that the law assumes (correctly, I believe) that it is in a child’s best interests to be in the custody of at least one of their parents. This is a very, very strong assumption, and it can only be overridden if there is extremely compelling evidence that a parent is unfit to take care of a child, and that it is therefore in the child’s best interests to be removed from the custody of the parent.

But if local authorities in charge of child welfare don’t have a decent working knowledge of mental illness, and what it actually entails, it is impossible for them to make an accurate determination of what’s in a child’s best interest, in dealing with a mentally-ill parent.

This is especially problematic because some statistics suggest that as many as one in five parents who have direct contact with the child welfare system suffer from some form of mental illness. This should press upon you the importance of ensuring that child-welfare workers are adequately educated about mental illness. At the very least, it should be made perfectly clear to them that a diagnosis with a mental illness does not, in and of itself, make a parent abusive or neglectful.

Furthermore, there are no standards governing when a parent and/or child should be subject to a mental health evaluation. Case workers have broad discretion in ordering psychiatric examinations. And because they often know very little about mental illness, or psychology in general, they sometimes act on their prejudices, rather than objective facts.

This also means that parents can be subject to repeated psychological evaluations which deliver contradictory results.

All of these factors come together and lead to create a situation in which children are separated from their parents more often than necessary.

This ignorance about mental illness causes problems in all sectors of society – it stigmatizes people who just need help, and it can even tear families apart unnecessarily.

Kentucky Supreme Court: Man Who Has Affair With Married Woman Can Assert Paternity

Last week, the Kentucky Supreme Court ruled that a man who has an affair with a married woman can assert a claim of paternity of a child conceived in the relationship.

This case, and some of the controversy surrounding it, demonstrates what I believe to be a somewhat irrational attitude toward marriage held by politicians and, sometimes, the courts. To be clear, I think that the court made the right decision, but some of these attitudes are illustrated in a dissenting opinion.

It’s true that this case represents a major departure from the traditional common law, which typically assumes that a child born to a married woman is the biological child of the woman’s husband. The law would typically stick to this assumption against virtually all evidence. Of course, this rule is a product of its times: it was devised hundreds of years before DNA testing came into existence, and even before less-precise methods of determining paternity (or at least narrowing down the pool of potential fathers), such as blood type testing, were available. As the majority points out, the assumption that a child born to a married woman is a “child of the marriage” arose in a time when very little could be done to determine paternity. The most scientific way of determining paternity was to have a bunch of people decide which supposed father the child most resembles.

Furthermore, the common law developed in an extremely conservative society, when having children out of wedlock was a huge social taboo, stigmatizing both the mother and the child. If a child was declared illegitimate, he or she would be discriminated against, and denied a place in “decent” society. Also, paternity was almost always contested by the mother’s husband, in an attempt to prove that the child is not his, in order to disavow parental responsibility to the child.

It made sense, then, that the common law courts would prefer to simply assume that every child born to a married woman is a child of the marriage.

However, we don’t live in 16th-Century England anymore. We live in an era in which we still place a high level of importance on the institution of marriage, but are also OK with acknowledging the simple fact that not every marriage works. Furthermore, in this era of DNA testing, we can determine a child’s paternity (or at least rule out potential fathers, if the actual biological father is not available for testing) with over 99% accuracy. And we’ve also moved beyond demonizing a child based solely on the circumstances of his or her conception.

Also, only fairly recently would a man contest the paternity of a child, not to prove that he is not the father and disavow parental responsibilities, but to prove that he is the father, in order to voluntarily assume those responsibilities. The fact that this has become more commonplace can only be considered a positive development, in the scheme of things.

Nonetheless, situations still come up where the paternity of a child is contested. The question faced by the court here was whether or not anyone could question the paternity of a child born to a married woman, and if so, who.

The court held that there is a still a strong presumption that a child born to a married woman was fathered by her husband. However, it made clear that this presumption can be rebutted with sufficient evidence to the contrary. It held that the presumption is so strong, that evidence to the contrary must amount to proof “beyond a reasonable doubt” which is the highest standard of proof available in the law, and reserved almost exclusively for criminal cases. Its use in family law cases, such as this one, is extremely rare, illustrating just how important the presumption of legitimacy is. Generally, only a DNA test will present sufficiently strong evidence to overcome this presumption.

I believe that this high standard is justified, and contesting the paternity of a child born to a married woman should be fairly difficult. After all, the marital relationship is still very important, and outside interference is not something the law should abide lightly.

Having said that, the interest of the biological father in being involved in his child’s life, and the interest of the child in knowing his or her biological father, must also be considered, and weighed against the couple’s interest in not having their marriage disturbed.

I think the rule articulated by the Kentucky Supreme Court, that paternity in these cases must be proven beyond a reasonable doubt, is a sound one. Furthermore, before the question of paternity can even be reached, a putative father should first have to present some evidence that it’s actually possible for him to be the father – including evidence that he and the mother had a sexual relationship during the relevant time, and evidence that he is medically capable of fathering children.

To put it simply, courts need to respect the marital relationship, but they also need to be realistic about the fact that no marriage is perfect.

Why Children Should Not Be Charged With Hate Crimes

Wow.  And I thought the bullies at my school were bad.

Actually, on second thought, they were bad.  In fact they were just as bad if not worst than Osman Daramy, the 11-year-old alleged juvenile delinquent in the story linked.  As I’ve mentioned in previous blogs, I went to some pretty tough public schools when I was a kid and let me tell you, the stuff Daramy is accused of pretty much when on everyday at my middle school.  It’s just that no one, not the parents, not the teachers, not the school administrators, or even the students, ever thought to report this sort of bullying to the cops.  I mean, who knew you could get your bullies arrested?  If I had known that, my entire school would have been in the slammer.

Daramy was arrested in Staten Island after he and a 13-year-old female accomplice allegedly attacked and taunted another 13-year-old Muslim girl.  The alleged assault was supposedly sparked because the victim was Muslim.  Daramy apparently tried to rip off the victim’s hijab, a traditional Muslim headdress, outside of their middle school.

Daramy was charged with the usual assortment of juvenile assault-related crimes, with the sole exception that he’s also being charge with a hate crime because the attack was motivated by his supposed hatred of Muslims.  Reports indicate that Daramy’s mother is Muslim and that the defense he and his family has put forward is that this somehow negates the hate crime charge.

It doesn’t by the way.  However, the little punk has been very classy about the whole affair.  Despite being in more trouble than I, and I’m sure anyone his age, could have ever imagine at only 11 years old, Daramy was still able to muster the strength to give the old one-finger salute to the press while appearing in the Staten Island Family Court.  Combined with his mile-long rap sheet of disciplinary issues, Daramy appears to be just aching to kill off any sympathy the court might’ve had on him.

Though getting bullies arrested nowadays isn’t as novel as it was when I was a lad, what sets Daramy’s story apart is the hate crime he being charged with, which is very unique considering Daramy’s age.

Without bogging you down with a lot of legalese, in criminal law, in order to be successfully convicted of a crime, prosecutors must show that a defendant possessed both a certain level of intent to commit a crime in addition to committing the actual action itself.  There are varying levels of intent, which is called mens rea in the legal world.  But for purposes of convicting someone for a hate crime, federal statutes on point clearly indicate that a defendant must have acted willfully because of their respective hate for the victim’s race, religion, etc.

So what’s the problem?  Well, Daramy’s only 11 years old!  There’s a long-held convention in criminal law that children generally can never commit any criminal act with a mens rea beyond reckless because they’re kids and kids aren’t yet sophisticated enough to understand right or wrong.

However, this tenet isn’t always held sacred because as any trashy 20/20 special report will tell you, the government doesn’t necessarily have too many qualms charging minors as adults.  But in this case, it’s different because Daramy isn’t being charged as an adult.  In fact, the prosecutors are going after him as a juvenile; they’re just also saying that Daramy is capable of understanding and accepting his own hatred for another race to the point that he’s was able to channel it into a full-blown hate crime.  This is a much a harder pill for me to swallow.

Now I’m not going to try to deny or argue against the notion that the victim’s religious beliefs in no way served as the impetus for Daramy’s assault.  Nor will I try to discount the little delinquent’s actions by saying that he couldn’t have hated Muslims because his mom is Muslim.  No, there’s no need to address any of these mitigating factors because for argument’s sake, let’s just assume Daramy did beat up his victim because she was Muslim.  It still doesn’t change the fact that he’s a child.  Last time I checked, children seemed to be ruled almost entirely by primal pack-like emotions.  They may be capable of hate, but the problem is that most don’t understand why that hate exists or indeed may hate something due to entirely different reasons.

As much as I hate defending the little nightmare, it seems inconceivable to state that any child can ever truly understand the extent of their emotions and actions.  That’s why they’re children.  To use an old cliche, children are like clay waiting to be molded.  Though they are capable of acting based on their feelings, they’re not yet capable of understanding why they possess these feelings.  Children are inspired to act and think the way they do because of their environment, as well as what they are taught and told.

Now I’m not saying that Daramy was taught to hate, but if he was, then would that be sufficient reason to condemn him for a hate crime?  A child born into the Ku Klux Klan may be taught to hate minorities, but that child’s hate only exists because that’s all he or she knows.  It’s not his or her own thoughts, but rather what was put into him or her and adhered to because of the positive reinforcement received, whether from family or friends.  Daramy could’ve very well attacked this poor Muslim girl because she was Muslim, but that doesn’t mean Daramy was worldly enough to comprehend this reason.  And for this, charging him with a hate crime is ludicrous.

However, locking him up in a juvenile facility for all the crap he did, that’s perfectly fine by me.  It will hopefully teach him to reflect on his actions.

As Surrogacy Becomes More Common, So Does Litigation

Advances in the field of reproductive medicine have allowed individuals and couples to have children when, not too long ago, it would have been considered impossible. This technology is amazing, and the hope it brings to people who were previously unable to have children of their own is a very good thing.

However, like any new technology, surrogacy brings with it new legal issues that nobody could have foreseen, especially since this particular technology involves bringing human beings into the world, who obviously have their own distinct legal rights. As one might imagine, the legal issues created by the widespread use of surrogacy are as complex as they are numerous. And considering that these legal issues have extremely high stakes, it’s important that clear legal rules develop to govern this activity.

An excellent recent article in the ABA Journal brings up some of these issues. A surrogacy arrangement typically looks something like this: a couple who are unable to have children for whatever reason (infertility, they are a same-sex couple, etc.) contacts a woman who agrees to serve as a surrogate mother for the couple’s child. She will carry the child to term, and upon birth, cede all parental rights in the child, who is then adopted by the couple. As far as what happens biologically, there are many different arrangements. Sometimes, the mother’s egg is fertilized by the father’s sperm, and then implanted in the surrogate (this is in cases where a woman produces viable eggs, but there are serious concerns about her ability to safely carry a pregnancy to term). Other times, one of the surrogate’s eggs are used (often with same-sex male couples).

In any case, the idea is that the surrogate will voluntarily give up her parental rights, and the parents will then adopt the child, becoming the child’s parents for all legal and practical purposes. And most of the time, this is how it works out.

There are cases, however, when something goes wrong. As noted in the article linked above, the surrogate will occasionally back out of the agreement at the last minute, and refuse to give up parental rights, leading to a major legal fight that can last for years. And in cases where the surrogate has given birth to her own biological child, it’s highly unlikely that a court will terminate her parental rights, which is an understandable position.

One of the big problems with surrogacy, at least in the U.S., is that family law is almost exclusively governed by individual states. This means that the laws regarding surrogacy can vary widely, based on what state you’re in (and that’s assuming your state even has laws dealing with the subject). Obviously, this can cause significant confusion. Unlike many other countries, the U.S. has no federal law regulating surrogacy, and dealing with issues such as disputed parental rights.

In an attempt to remedy this, many states have passed the Uniform Parentage Act, which is an attempt to harmonize the law governing surrogacy (among other things) among the states. However, not every state has adopted this law, so the problem remains.

In 2008, the American Bar Association adopted a model federal statute that would govern assisted reproductive technology. Of course, this is just a proposal, and has no legal force unless it’s passed by Congress and signed by the President. Considering that, these days, you can’t get a Democrat and a Republican to agree on the color of the sky, the chances of such a law receiving the broad bipartisan support it would need seems slim to none, for the time being.

In particular, a uniform surrogacy law needs to clearly lay out the conditions under which a surrogacy agreement is enforceable. Some reasonable provisions I can think of off the of my head include requiring that all parties be represented by independent counsel, and a mandatory “cooling-off” period for the prospective surrogate, giving her time to think it over, and back out of the agreement should she so choose.

In a way, however, the exact provisions of rules governing surrogacy are not as important as the simple existence of such rules. I’ve brought up this point in regards to other emerging technologies that the law doesn’t currently deal with. Basically, I think that it’s essential that all the parties involved in these issues are governed by clear rules, which reduces uncertainty, and the likelihood of disputes. I wouldn’t say that the quality of these rules is secondary, but I would say that its importance is roughly equal to the importance of the mere existence of rules.