A judge's ethical dilemma: Assessing a child's capacity to choose

Fordham Law Review

Volumn 64, Issue 4, 1996, Pages 1873-1914

  Mlyniec, Wallace J ^a,b  

^a Department of Law ^*

^b GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 0030539928     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (243)

1. Even in criminal cases, where the impact on defendants' lives is greater than those on the lives of civil litigants, the results do not affect defendants in the same way that court proceedings affect children. While conditions of probation and periods of confinement may drastically affect how a person lives his or her life, criminal proceedings aim primarily to punish violators for past deeds, not, as is in children's cases, to create an environment where growth is to be fostered.
2. See generally David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 Mich. L. Rev. 477, 480-86 (1984) (criticizing the standard); Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs. 226, 262-72 (Summer 1975) (same).
3. See generally David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 Mich. L. Rev. 477, 480-86 (1984) (criticizing the standard); Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs. 226, 262-72 (Summer 1975) (same).
4. See David J. Rothman, Conscience and Convenience: The Asylum and its Alternatives in Progressive America 268-89 (1980) (reviewing the poor treatment children received in the early juvenile court); Paul Holland & Wallace J. Mlyniec, Whatever Happened to the Right to Treatment?: The Modern Quest for an Historical Promise, 69 Temp. L.Q. (forthcoming 1996) (manuscript at 5, on file with the Fordham Law Review) (reviewing the poor treatment children have received in more modern times).
5. See David J. Rothman, Conscience and Convenience: The Asylum and its Alternatives in Progressive America 268-89 (1980) (reviewing the poor treatment children received in the early juvenile court); Paul Holland & Wallace J. Mlyniec, Whatever Happened to the Right to Treatment?: The Modern Quest for an Historical Promise, 69 Temp. L.Q. (forthcoming 1996) (manuscript at 5, on file with the Fordham Law Review) (reviewing the poor treatment children have received in more modern times).
6. See Byron F. Lindsley, Ruling Without Bias, 24 Judge's J. 19 (Winter 1985) (providing a judge's perspective on judicial biases that may be present in custody cases).
7. Cultural historians disagree about the emergence of childhood as a distinct period in human development and about whether childhood was a grim period in a person's life or a period of affectionate attachment, prior to the twentieth century. See Roger J.R. Levesque, The Internationalization of Children's Human Rights: Too Radical for American Adolescents?, 9 Conn. J. Int'l L. 237, 243-52 (1994) (citing sources such as E. McCoy, Childhood Through the Ages, 88/89 Sociology 44-47 (Kurt Finsterbusch ed., 1988) and Lloyd de Mause, The History of Childhood 51-54 (1974)).
8. Cultural historians disagree about the emergence of childhood as a distinct period in human development and about whether childhood was a grim period in a person's life or a period of affectionate attachment, prior to the twentieth century. See Roger J.R. Levesque, The Internationalization of Children's Human Rights: Too Radical for American Adolescents?, 9 Conn. J. Int'l L. 237, 243-52 (1994) (citing sources such as E. McCoy, Childhood Through the Ages, 88/89 Sociology 44-47 (Kurt Finsterbusch ed., 1988) and Lloyd de Mause, The History of Childhood 51-54 (1974)).
9. Cultural historians disagree about the emergence of childhood as a distinct period in human development and about whether childhood was a grim period in a person's life or a period of affectionate attachment, prior to the twentieth century. See Roger J.R. Levesque, The Internationalization of Children's Human Rights: Too Radical for American Adolescents?, 9 Conn. J. Int'l L. 237, 243-52 (1994) (citing sources such as E. McCoy, Childhood Through the Ages, 88/89 Sociology 44-47 (Kurt Finsterbusch ed., 1988) and Lloyd de Mause, The History of Childhood 51-54 (1974)).
10. A persons ability to carry the weight of armor has been suggested as a reason why the age of majority moved from 15 to 21 between the 11th and 13th century. See Comm. on Child Psychiatry, Group for the Advancement of Psychiatry, How Old Is Old Enough?: The Ages of Rights & Responsibilities 7-8 (1989) [hereinafter Group for the Advancement of Psychiatry].
11. Id. at 9, 10.
12. Id. at 7.
13. Id. at 10.
14. 1 Blackstone's Commentaries on the Laws of England 463-64 (George Sharswood ed., 1871) (stating that "[i]n criminal cases an infant of the age of fourteen years may be capitally punished for any capital offence . . . but under the age of seven he cannot" (emphasis omitted)).
15. While the law vested some decision making in a child at an earlier age, full power vested at 21. Id. at 452 (stating that "[t]he legal power of a father . . . over the persons of his children ceases at the age of twenty-one").
16. Most commentators credit G. Stanley Hall as the first scholar to establish adolescence as a field of study. See G. Stanley Hall, Adolescence (Lawrence A. Cremin ed., Arno Press and The New York Times 1969) (1905).
17. Many societies did not consider children a special class of people until the eighteenth century. See Levesque, supra note 5, at 246.
18. Historians debate the degree of freedom possessed by "adolescents" in prior eras. Some scholars like Janet Ainsworth, relying in part on the work of Phillipe Aries, believe that the life-styles of young people prior to the twentieth century demonstrate that they participated as fully integrated members of the community. See Janet E. Ainsworth, Re-Imagining Childhood and Reconstructing the Legal Order: The Case for Abolishing the Juvenile Court, 69 N.C. L. Rev. 1083, 1093 (1991). Others look at the data of preindustrialized societies and see that, as a matter of law, parents or other adults (to whom children were bound out as apprentices or common laborers) regulated the activities of young people. Laurence Steinberg, Developmental Considerations in Youth Advocacy, in Who Speaks for the Children?: The Handbook for Individual and Class Child Advocacy 23, 25-29 (Jack C. Westman ed., 1991); see also Blackstone, supra note 10, at 463-66 (discussing the rights of persons under the age of 21).
19. Historians debate the degree of freedom possessed by "adolescents" in prior eras. Some scholars like Janet Ainsworth, relying in part on the work of Phillipe Aries, believe that the life-styles of young people prior to the twentieth century demonstrate that they participated as fully integrated members of the community. See Janet E. Ainsworth, Re-Imagining Childhood and Reconstructing the Legal Order: The Case for Abolishing the Juvenile Court, 69 N.C. L. Rev. 1083, 1093 (1991). Others look at the data of preindustrialized societies and see that, as a matter of law, parents or other adults (to whom children were bound out as apprentices or common laborers) regulated the activities of young people. Laurence Steinberg, Developmental Considerations in Youth Advocacy, in Who Speaks for the Children?: The Handbook for Individual and Class Child Advocacy 23, 25-29 (Jack C. Westman ed., 1991); see also Blackstone, supra note 10, at 463-66 (discussing the rights of persons under the age of 21).
20. Supreme Court jurisprudence concerning children makes this clear. In Ginsberg v. New York, 390 U.S. 629 (1968), Justice Stewart explained that "a child . . . is not possessed of that full capacity for individual choice . . . . It is only upon such a premise . . . that a State may deprive children of . . . rights." Id. at 649-50 (Stewart, J., concurring); see also Thompson v. Oklahoma, 487 U.S. 815, 836 n.43 (1988) ("The difference that separates children from adults for most purposes of the law is children's immature, undeveloped ability to reason in an adultlike manner." (quoting Victor L. Streib, Death Penalty for Juveniles 3-20, 184-89 (1987))). This notion of immaturity can be perceived in most if not all Supreme Court cases concerning children's rights. See Katherine Hunt Federle, On The Road to Reconceiving Rights for Children: A Postfeminist Analysis of the Capacity Principle, 42 DePaul L. Rev. 983, 987-1011 (1993) (discussing the philosophical underpinnings of legal immaturity in Western political thought).
21. Supreme Court jurisprudence concerning children makes this clear. In Ginsberg v. New York, 390 U.S. 629 (1968), Justice Stewart explained that "a child . . . is not possessed of that full capacity for individual choice . . . . It is only upon such a premise . . . that a State may deprive children of . . . rights." Id. at 649-50 (Stewart, J., concurring); see also Thompson v. Oklahoma, 487 U.S. 815, 836 n.43 (1988) ("The difference that separates children from adults for most purposes of the law is children's immature, undeveloped ability to reason in an adultlike manner." (quoting Victor L. Streib, Death Penalty for Juveniles 3-20, 184-89 (1987))). This notion of immaturity can be perceived in most if not all Supreme Court cases concerning children's rights. See Katherine Hunt Federle, On The Road to Reconceiving Rights for Children: A Postfeminist Analysis of the Capacity Principle, 42 DePaul L. Rev. 983, 987-1011 (1993) (discussing the philosophical underpinnings of legal immaturity in Western political thought).
22. See generally R. Murray Thomas, Comparing Theories of Child Development (3d ed. 1992) (providing a comparative analysis of various child development theories).
23. Id. at 519.
24. Jean Piaget, Psychology and Epistemology 5-7 (Arnold Rosin trans., 1971). Piaget wrote many books in his lifetime. Throughout this section, this Article will be drawing on the synthesis of Piaget's work found in Thomas. See Thomas, supra note 16, at 273-318.
25. Piaget, supra note 18, at 44-51.
26. See Thomas, supra note 16, at 284-85.
27. Id. at 286-90.
28. David Elkind, Egocentrism in Adolescence, 38 Child Dev. 1025, 1026 (1967).
29. Thomas, supra note 16, at 290-95.
30. Elkind, supra note 22, at 1026-27.
31. Thomas, supra note 16, at 295-98.
32. Elkind, supra note 22, at 1027.
33. Id. at 1029.
34. Thomas, supra note 16, at 298-99.
35. See, e.g., Recent Advances in Cognitive-Developmental Theory: Progress in Cognitive Development Research (Charles J. Brainerd ed., 1983) (surveying events in the area of cognitive development theory, including broad empirical and theoretical advances); Elizabeth S. Scott et al., Evaluating Adolescent Decision Making in Legal Contexts, 19 Law & Hum. Behav. 221, 224-26 (1995) [hereinafter Scott, Evaluating Adolescent Decision Making] (criticizing Piaget's theory of cognitive development, offering alternative theories, and referring to the works of Gardner as well as of Fischer and Silvern).
36. See, e.g., Recent Advances in Cognitive-Developmental Theory: Progress in Cognitive Development Research (Charles J. Brainerd ed., 1983) (surveying events in the area of cognitive development theory, including broad empirical and theoretical advances); Elizabeth S. Scott et al., Evaluating Adolescent Decision Making in Legal Contexts, 19 Law & Hum. Behav. 221, 224-26 (1995) [hereinafter Scott, Evaluating Adolescent Decision Making] (criticizing Piaget's theory of cognitive development, offering alternative theories, and referring to the works of Gardner as well as of Fischer and Silvern).
37. Barry J. Zimmerman, Social Learning Theory: A Contextualist Account of Cognitive Functioning, in Recent Advances in Cognitive-Developmental Theory: Progress in Cognitive Development Research 1, 4 (Charles J. Brainerd ed., 1983); see also Thomas, supra note 16, at 316 (stating that Piaget "did not offer any careful analysis of how different factors or agents in the social setting influence the attainment of the wide variety of differences in cognitive functions that children exhibit").
38. Zimmerman, supra note 30, at 4.
39. See id. at 4-5.
40. See Laura M. Purdy, In Their Best Interest?: The Case Against Equal Rights For Children 204-08 (1992).
41. William Gardner et al., Asserting Scientific Authority: Cognitive Development and Adolescent Legal Rights, 44 Am. Psychologist 895, 898 (1989).
42. Urie Bronfenbrenner, The Ecology of Human Development: Experiments by Nature and Design 9-10, 16-42 (1979).
43. See Group for the Advancement of Psychiatry, supra note 6, at 20-21; see also Leslie Smith, Age, Ability, and Intellectual Development in Piagetian Theory, in Criteria for Competence: Controversies in the Conceptualization and Assessment of Children's Abilities 69, 87-88 (Michael Chandler & Michael Chapman eds., 1991) (assessing the weaknesses in Piaget's theory but asserting its continued importance); Thomas, supra note 16, at 306, 313-17 (stating that "over the past three decades Piaget's writings have exerted a growing influence on the conduct of education," and suggesting that most child development experts agree with the major features of Piaget's structure-base stage model, but liberate it from certain constraints to make it fit the current state of art).
44. See Group for the Advancement of Psychiatry, supra note 6, at 20-21; see also Leslie Smith, Age, Ability, and Intellectual Development in Piagetian Theory, in Criteria for Competence: Controversies in the Conceptualization and Assessment of Children's Abilities 69, 87-88 (Michael Chandler & Michael Chapman eds., 1991) (assessing the weaknesses in Piaget's theory but asserting its continued importance); Thomas, supra note 16, at 306, 313-17 (stating that "over the past three decades Piaget's writings have exerted a growing influence on the conduct of education," and suggesting that most child development experts agree with the major features of Piaget's structure-base stage model, but liberate it from certain constraints to make it fit the current state of art).
45. Gary B. Melton, Taking Gault Seriously: Toward a New Juvenile Court, 68 Neb. L. Rev. 146, 153 (1989).
46. Lois A. Weithorn & Susan B. Campbell, The Competency of Children and Adolescents to Make Informed Treatment Decisions, 53 Child Dev. 1589, 1590-91 (1982).
47. Id. at 1595-96.
48. Yoshiaki Nakajima & Miho Hotta, A Developmental Study of Cognitive Processes in Decision Making: Information Searching as a Function of Task Complexity, 64 Psychol. Rep. 67 (1989). Denise Davidson also studied information searching techniques and found that preschool children used incomplete and unsystematic strategies. Denise Davidson, Children's Decision-Making Examined with an Information-Board Procedure, 6 Cognitive Dev. 77, 79 (1991).
49. Yoshiaki Nakajima & Miho Hotta, A Developmental Study of Cognitive Processes in Decision Making: Information Searching as a Function of Task Complexity, 64 Psychol. Rep. 67 (1989). Denise Davidson also studied information searching techniques and found that preschool children used incomplete and unsystematic strategies. Denise Davidson, Children's Decision-Making Examined with an Information-Board Procedure, 6 Cognitive Dev. 77, 79 (1991).
50. Nakajima & Hotta, supra note 40, at 77.
51. Catherine C. Lewis, How Adolescents Approach Decisions: Changes over Grades Seven to Twelve and Policy Implications, 52 Child Dev. 538 (1981).
52. Id. at 541-42.
53. Denise Davidson, Developmental Differences in Children's Search of Predecisional Information, 52 J. Experimental Child Psychol. 239, 241 (1991).
54. Ronald W. Belter & Thomas Grisso, Children's Recognition of Rights Violations in Counseling, 15 Prof. Psychol.: Res. & Prac. 899, 907-08 (1984); see also Thomas Grisso, Juveniles' Capacities to Waive Miranda Rights: An Empirical Analysis, 68 Cal. L. Rev. 1134, 1143 (1980) (stating that juveniles under fifteen years of age do not "understand the rights of silence and of counsel").
55. Ronald W. Belter & Thomas Grisso, Children's Recognition of Rights Violations in Counseling, 15 Prof. Psychol.: Res. & Prac. 899, 907-08 (1984); see also Thomas Grisso, Juveniles' Capacities to Waive Miranda Rights: An Empirical Analysis, 68 Cal. L. Rev. 1134, 1143 (1980) (stating that juveniles under fifteen years of age do not "understand the rights of silence and of counsel").
56. Catherine C. Lewis, A Comparison of Minors' and Adults' Pregnancy Decisions, 50 Am. J. Orthopsychiatry 446 (1980).
57. Id. at 451-52.
58. Bruce Ambuel & Julian Rappaport, Developmental Trends in Adolescents' Psychological and Legal Competence to Consent to Abortion, 16 Law & Hum. Behav. 129 (1992).
59. Id. at 147-48.
60. See id. at 145. Interestingly, they found that social support was the most consistent psychosocial predictor of competence. Id. at 146.
61. See id. at 145. Interestingly, they found that social support was the most consistent psychosocial predictor of competence. Id. at 146.
62. See supra notes 38-50 and accompanying text.
63. See supra notes 40-50 and accompanying text.
64. Piaget, supra note 18, at 61-62.
65. See supra notes 38-41, 44-45 and accompanying text.
66. Elizabeth S. Scott, Judgment and Reasoning in Adolescent Decisionmaking, 37 Vill. L. Rev. 1607, 1632 (1992).
67. See id. at 1633 & n.98.
68. Scott, Evaluating Adolescent Decision Making, supra note 29, at 222-23.
69. Id. at 226-35.
70. Id. at 222.
71. Id.
72. Id. at 230. The article cites various studies that analyze the influence of peers and parents in certain contexts.
73. Thomas J. Berndt, Developmental Changes in Conformity to Peers And Parents, 15 Developmental Psychol. 608, 615 (1979). Berndt also found that the quality of the parent-child relationship influenced conformity. See id. at 615-16.
74. Thomas J. Berndt, Developmental Changes in Conformity to Peers And Parents, 15 Developmental Psychol. 608, 615 (1979). Berndt also found that the quality of the parent-child relationship influenced conformity. See id. at 615-16.
75. Scott, Evaluating Adolescent Decision Making, supra note 29, at 230.
76. Id. at 230-31 (citing various research studies).
77. Id.
78. Marilyn Jacobs Quadrel et al., Adolescent (In)vulnerability, 48 Am. Psychologist 102, 104-05 (1993). They also found that adults and teens rely on similar psychological processes when estimating risk. Id. at 112.
79. Marilyn Jacobs Quadrel et al., Adolescent (In)vulnerability, 48 Am. Psychologist 102, 104-05 (1993). They also found that adults and teens rely on similar psychological processes when estimating risk. Id. at 112.
80. Scott, Evaluating Adolescent Decision Making, supra note 29, at 231.
81. Id.
82. Jari-Erik Nurmi, How Do Adolescents See Their Future?: A Review of the Development of Future Orientation and Planning, 11 Developmental Rev. 1, 28 (1991).
83. Scott, Evaluating Adolescent Decision Making, supra note 29, at 232.
84. See Franklin E. Zimring, The Changing Legal World of Adolescence 91 (1982) (maintaining that young people acquire maturity and judgment through learning).
85. See Piaget, supra note 18, at 28 (stating that "[a]ll knowledge doubtless supposes an intervention of experience"); see also id. at 46-51 (outlining, for example, biological, equilibration, social, educational, and cultural factors as contributive elements to cognitive function).
86. See Richard L. Roe, Valuing Student Speech: The Work of the Schools as Conceptual Development, 79 Cal. L. Rev. 1269, 1293 (1991) (citing the work of researchers and commentators focusing on social cognition, political cognition, and critical thinking).
87. Cf. Zimring, supra note 71, at 89-91 (positing that "[b]eing mature takes practice").
88. Cf. Lita Furby & Ruth Beyth-Marom, Risk Taking In Adolescence: A Decision-Making Perspective, 12 Developmental Rev. 1, 29 (1992) (asserting that acquisition of decision-making skills "may depend both on cognitive structural characteristics at a given point in time and on the opportunities which experience has provided for acquiring given skills").
89. Id. at 3 ("Decision theorists define decision making as the process of making choices among competing courses of actions.").
90. Id. at 3-4.
91. Zimring, supra note 71, at 89-96.
92. Id. at 91.
93. States have long experimented with the proper age at which to accord control of custody decisions to children. See Lawrence A. Moskowitz, Divorce-Custody Dispositions: The Child's Wishes in Perspective, 18 Santa Clara L. Rev. 427, 431-34 (1978).
94. Elizabeth S. Scott et al., Children's Preference in Adjudicated Custody Decisions, 22 Ga. L. Rev. 1035, 1042 (1988) [hereinafter Scott, Children's Preference in Custody Decisions].
95. Edward M. Ginsburg, Guidelines For Child Custody Cases, 26 Boston BJ. 23, 24 (Oct. 1982).
96. J. Peter Ault, Out of the Mouths of Babes: Determinations of Child Custodial Preference in Illinois, 23 Loy. U. Chi. L.J. 383, 395 (1992).
97. Id. at 385 (quoting Rosenberger v. Rosenberger, 316 N.E.2d 1, 3 (Ill. App. Ct. 1974)).
98. Frederica K. Lombard, Judicial Interviewing of Children in Custody Cases: An Empirical and Analytical Study, 17 U.C. Davis L. Rev. 807, 809 (1984).
99. Id. at 826. In Colorado, 15 minutes seems to be the norm. See Jessica Pearson & Maria A. Luchesi Ring, Judicial Decision-Making in Contested Custody Cases, 21 J. Fam. L. 703, 720 (1983).
100. Id. at 826. In Colorado, 15 minutes seems to be the norm. See Jessica Pearson & Maria A. Luchesi Ring, Judicial Decision-Making in Contested Custody Cases, 21 J. Fam. L. 703, 720 (1983).
101. Lombard, supra note 85, at 829; see also Judith S. Wallerstein & Joan Berlin Kelly, Surviving the Break Up: How Children and Parents Cope with Divorce 161-78 (1980) (describing the contextual complexity of divorce cases and its effects on children's thinking).
102. Scott, Children's Preference in Custody Decisions, supra note 81, at 1037.
103. Id.
104. Id.
105. Id. at 1046. Children under six were involved in 50% of the cases, and few judges even interviewed such children. Id. at 1046-47.
106. Id. at 1050.
107. Thomas J. Reidy et al., Child Custody Decisions: A Survey of Judges, 23 Fam. L.Q. 75, 79, 84 (1989).
108. Carol R. Lowery, Child Custody Decisions in Divorce Proceedings: A Survey of Judges, 12 Prof. Psychol. 492, 495 (1981).
109. Scott, Children's Preference in Custody Decisions, supra note 81, at 1050-51.
110. David M. Siegel & Suzanne Hurley, The Role of the Child's Preference in Custody Proceedings, 11 Fam. L.Q. 1, 2 (1977) (citation omitted).
111. Id. at 4.
112. Searches for both custody and adoption were conducted on Westlaw and Lexis. Various combinations of the following key words were used to locate cases: custody, adoption, child, preference, choice, age, mental capacity, maturity, and West's key number 211k19.2(4). See, e.g., Massengale v. Massengale, No. 03A01-9503-CV-00086, 1995 WL 579261, at *1-2 (Tenn. Ct. App. Oct. 2, 1995) (admitting testimony of nine-year-old regarding his preferences in custody dispute, but ultimately discounting his viewpoint); Sargent v. Sargent, 460 S.E.2d 596, 599-600 (Va. Ct. App. 1995) (affirming trial court's decision to refuse to find determinative the uncontroverted evidence regarding nine-year-old's preferences in custody dispute).
113. 443 U.S. 622 (1979).
114. Id. at 643. The Court in Bellotti held that even if the trial court believed that an abortion is not in the child's best interest, it should not interfere in the decision of a mature minor. Id. at 650. Prior to Bellotti, the Supreme Court, in Planned Parenthood v. Danforth, 428 U.S. 52 (1976), ruled that a state could not confer upon a parent absolute veto power over a child's desire to have an abortion. Id. at 74.
115. Bellotti, 443 U.S. at 643-44 n.23.
116. A survey by Mnookin and Cartoof found that every pregnant minor who sought judicial authorization in Massachusetts between 1981 and 1983 received it. Robert H. Mnookin, Bellotti v. Baird, A Hard Case, in In the Interest of Children: Advocacy, Law Reform, and Public Policy 149, 239 (Robert H. Mnookin ed., 1985). Out of 477 judicial assessments for authorization in Massachusetts between December 1981 and June 1985, only nine children were found to be immature. Susanne Yates & Anita J. Pliner, Judging Maturity in the Courts: The Massachusetts Consent Statute, 78 Am. J. Pub. Health 646, 647 (1988).
117. A survey by Mnookin and Cartoof found that every pregnant minor who sought judicial authorization in Massachusetts between 1981 and 1983 received it. Robert H. Mnookin, Bellotti v. Baird, A Hard Case, in In the Interest of Children: Advocacy, Law Reform, and Public Policy 149, 239 (Robert H. Mnookin ed., 1985). Out of 477 judicial assessments for authorization in Massachusetts between December 1981 and June 1985, only nine children were found to be immature. Susanne Yates & Anita J. Pliner, Judging Maturity in the Courts: The Massachusetts Consent Statute, 78 Am. J. Pub. Health 646, 647 (1988).
118. A sample of cases was selected from a Westlaw search using 4K.50 (Abortion and Birth Control) and examined to ascertain the judges' reasoning. See, e.g., In re T.P., 475 N.E.2d 312, 314-15 (Ind. 1985) (holding that the trial judge did not abuse his discretion in making a determination based on facts presented as well as the attitudes and judgments of the child).
119. See, e.g., In re Moe, 423 N.E.2d 1038, 1042-43 (Mass. App. Ct. 1981) (focusing on lack of life experience and understanding of the responsibilities of motherhood in light of abortion decision); In re Anonymous, 650 So. 2d 919, 920 (Ala. Civ. App. 1994) (discussing lack of medical consultation, inadequate postoperative plans, and failure to consider the emotional aspects of abortion).
120. Ex pane Anonymous, 618 So. 2d 722, 725 (Ala. 1993).
121. See, e.g., In re Doe I, 566 N.E.2d 1181, 1184 (Ohio 1990) (upholding trial court's finding that pregnant minor did not prove necessary maturity, where she had had prior abortion less than a year ago, second child was fathered by a different man, and minor had stopped using birth control); H.B. v. Wilkinson, 639 F. Supp. 952, 957-58 (D. Utah 1986) (finding that minor demonstrated unrealistic judgment given her reliance upon advice of fellow teenagers, her expectation of keeping the pregnancy secret from her parents if medical complications arose, and her cavalier attitude about the ease of abortion).
122. See Steven F. Stuhlbarg, Note, When is a Pregnant Minor Mature? When is an Abortion in Her Best Interest? The Ohio Supreme Court Applies Ohio's Abortion Parental Notification Law: In re Jane Doe I, 60 U. Cin. L. Rev. 907, 932 (1991).
123. In re Doe, 866 P.2d 1069, 1074 (Kan. Ct. App. 1994).
124. The Supreme Court has suggested a mature minor is one who can appreciate the nature and consequences of an abortion. See Planned Parenthood v. Danforth, 428 U.S. 52, 73-74 (1976).
125. According to Grisso and Vierling, they are also the traits used to judge the legal competence of a mature minor. Thomas Grisso & Linda Vierling, Minors' Consent to Treatment: A Developmental Perspective, 1978 Prof. Psychol. 412, 412-16.
126. See Patricia Keith-Spiegel, Children and Consent to Participate in Research, in Children's Competence to Consent 179, 186 (Gary B. Melton et al. eds., 1983) (citing 1971 H.E.W. guidelines concerning research on humans); see also Ambuel & Rappaport, supra note 48, at 132 (listing cognitive and volitional qualities as characteristics of informed consent).
127. Keith-Spiegel, supra note 111, at 194; Ambuel & Rappaport, supra note 48, at 132.
128. The appellate cases seem to suggest that often the child is the only witness and no cross-examination takes place unless pursued by the trial judge. See, e.g., In re Anonymous, 655 So. 2d 1052, 1053-54 (Ala. Civ. App. 1995) (basing decision on minor's testimony despite the absence of cross-examination); In re Anonymous, 549 So. 2d 1347, 1347 (Ala. Qv. App. 1989) (noting that child was the only witness); In re Moe, 423 N.E.2d 1038, 1040 (Mass. App. Ct. 1981) (referring only to the petitioner's responses in making determination of maturity).
129. See Grisso & Vierling, supra note 110, at 418-19.
130. Yates & Pliner, supra note 102, at 647-48.
131. See id.
132. These cases are slightly different from mental health commitments governed procedurally by Parham v. J. R., 442 U.S. 584, 606 (1979). In mental health commitment cases, the child's need for treatment rather than his or her capacity to consent to treatment is at issue. In the neglect and delinquency cases, the placement is more likely to be one of several factors that can aid in the child's rehabilitation or upbringing rather than being one that is absolutely necessary. See D.C. Code Ann. § 16-2320 (1981 & Supp. 1995) (setting out procedures for placement of neglected or delinquent children).
133. See Danny R. Veilleux, Annotation, Medical Practitioner's Liability For Treatment Given Child Without Parent's Consent, 67 A.L.R.4th 511 (1989).
134. See, e.g., In re Sampson, 317 N.Y.S.2d 641, 652 (Fam. Ct. 1970), aff'd, Sampson v. Taylor, 278 N.E.2d 918 (N.Y. 1972) (involving neglect case brought by government against the parent, a Jehovah's Witness, because of her refusal to consent to blood transfusion for the child); In re Gregory S., 380 N.Y.S.2d 620, 621 (Fam. Ct. 1976) (involving neglect case brought by government against the parent, a member of the Church of God and Christ, because of her refusal to consent to medical and dental treatment for her three children); see also In re Seiferth, 127 N.E.2d 820, 821 (N.Y. 1955) (involving a child in need of surgery for a cleft palate and harelip whose parent withheld consent because of his belief in "mental healing").
135. Tennessee, for example, has long recognized the mature minor doctrine in medical liability cases, although none of the Tennessee cases involve a child's choice to die rather than accept treatment. See Cardwell v. Bechtol, 724 S.W.2d 739, 745-46 (Tenn. 1987).
136. See Baird v. Attorney General, 360 N.E.2d 288, 294 (Mass. 1977) (citing Wadlington, Minors and Health Care: The Age of Consent, 11 Osgoode Hall L.J. 115, 117-19 (1973)).
137. See, e.g., In re Gregory S., 380 N.Y.S.2d at 621-22 (describing circumstances under which the state may restrict parents' control over their children for public policy reasons); In re Sampson, 317 N.Y.S.2d at 652 (same).
138. Kathryn Dore Perkins, Kids Asserting Rights in Health Care; Support Grows For Choice in Treatment, S.F. Examiner, May 1, 1995, at *1, available in LEXIS, Nexis Library, Papers File.
139. Id.
140. Id.
141. Mike McKee, Blood Feud; When Jehovah's Witnesses Refuse Transfusions Based on Their Beliefs, The Legal and Medical Guidelines Are Far From Clear, The Recorder, Aug. 15, 1995, at *1, available in LEXIS, Nexis Library, Papers File.
142. Id. at *3-4.
143. Novak v. Cobb County-Kennestone Hosp. Auth., 849 F.Supp. 1559, 1575-76 (N.B. Ga. 1994).
144. 557 N.Y.S.2d 239 (Sup. Ct. 1990).
145. Id. at 243.
146. Id.
147. 790 S.W.2d 839 (Tx. Ct. App. 1990).
148. Id. at 842.
149. 569 A.2d 1202 (Me. 1990).
150. Id. at 1206; see also In re L.H.R., 321 S.E.2d 716, 723 (Ga. 1984) (indicating, in a case involving withdrawing life support procedures from an infant, that the adult right to withhold or withdraw life sustaining procedures was available despite the person's youth).
151. In re Swan, 569 A.2d 1202, 1206 (Me. 1990).
152. Id.
153. In re E.G., 549 N.E.2d 322 (Ill. 1989).
154. Id. at 323-24.
155. Id. at 324.
156. Id. at 326-27. One of the dissenting judges noted the difference between cases recognizing the doctrine when the preservation of life and health is at stake in contrast to recognizing it when life and health are destroyed. Id. at 328-29 (Ward, J., dissenting).
157. See id. at 328.
158. Id. By the time the case was finally decided, the minor had legally become an adult. Id. at 324.
159. The Constitution requires that children receive notice of the charges against them and a hearing to determine their guilt. In re Gault, 387 U.S. 1, 33 (1967).
160. The Constitution guarantees children the right to counsel. Id. at 36-37; see generally Barry C. Feld, Justice For Children: The Right To Counsel and the Juvenile Courts 19-24 (1993) (noting that juvenile delinquency proceedings afford essentially the same procedural protections as criminal prosecutions).
161. Fare v. Michael C., 442 U.S. 707, 724-28 (1979).
162. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
163. Id.
164. Although the child may have arrived at the decision to plead or waive counsel prior to the hearing, the decision is made, as a matter of law, in court.
165. See Fare v. Michael C., 442 U.S. at 725.
166. See Boykin v. Alabama, 395 U.S. 238, 240 (1969); McCarthy v. United States, 394 U.S. 459, 463-65 (1969). Many juvenile courts follow Boykin. See In re Maricopa County Juvenile Action No. J-86715, 594 P.2d 554, 556-57 (Ariz. Ct. App. 1979) (citing In re Beasly, 362 N.E.2d 1024 (Ill. 1977), cert. denied, 434 U.S. 1016 (1978), In re Ronald E., 562 P.2d 684 (Cal. 1977), and In re Michael M., 96 Cal. Reptr. 887 (Ct. App. 1970)).
167. See, e.g., Roy v. Perrin, 441 A.2d 1151, 1156 (N.H. 1982) ("[D]eficiencies in a criminal defendant's physical and mental make-up do not necessarily compel a finding that [the defendant's] plea was involuntary and unintelligent."); In re C.L.W., 467 A.2d 706, 709 (D.C. 1983) (finding that defendant "knowingly and intelligently" waived his Miranda rights despite his mental deficiencies).
168. See, e.g., Allard v. Helgemoe, 572 F.2d 1, 6 (1st Cir.) ("[W]e hold that incapacity to understand part of the elements of the offense with which one is charged does not without more, make a guilty plea involuntary in constitutional terms."), cert. denied, 439 U.S. 858 (1978).
169. Id. at 3; see also State v. Thompson, 545 P.2d 925, 927 (Ariz. 1976) (holding that a 17-year-old having a schizoid personality could still enter a knowing, intelligent, and voluntary plea).
170. See supra notes 144-51 and accompanying text.
171. D.C. Super. Ct. R. 11(b)(1)-(4) (Juv.); see also Institute of Judicial Administration & American Bar Association, Juvenile Justice Standards: Standards Relating to Adjudication 3.2 (1980) [hereinafter IJA-ABA Juvenile Justice Standards] (listing "admonitions" judge should make before accepting a guilty plea from a juvenile defendant).
172. D.C. Super. Ct. R. 11(c) (Juv.).
173. I have represented children accused of crimes for over 25 years. I rarely have seen a hearing last longer than 30 minutes. Most hearings take much less time.
174. See, e.g., In re John R., 419 N.Y.S.2d 625, 627 (App. Div. 1979). In that case, the juvenile judge merely advised the child that he could "waive the right to a trial and make an admission" and asked whether the child "want[ed] to make an admission or . . . want[ed] to have a trial." Id.; see also People v. Stewart, 356 N.E.2d 991, 992-93 (Ill. App. Ct. 1976) (showing that the court conducted an inquiry of a 14-year-old that consisted of five questions).
175. Some courts have explicitly stated that the defense lawyer as well as the judge has a duty to provide the information. See, e.g., Rinehart v. Brewer, 561 F.2d 126, 131 (8th Cir. 1977) (discussing counsel's role with a 15-year-old "immature" first offender). Indeed, a lawyer would be remiss if he did not do so. See Model Rules of Professional Conduct Rule 1.4 (1992); IJA-ABA Standards, supra note 156, at 3.6.
176. See Feld, supra note 145, at 249-52 (citing studies and examples of poor lawyering); see also Rinehart, 561 F.2d at 129-31 (citing appellee's counsel as an example of the poor quality of lawyering in juvenile delinquency proceedings).
177. See Rinehart, 561 F.2d at 131.
178. It is no secret that children who admit their guilt gain more favorable dispositions than those who go to trial. Further, urban courts would grind to a halt if all children chose to go to trial.
179. The right to counsel in juvenile proceedings is guaranteed by the Due Process Clause of the United States Constitution. In re Gault, 387 U.S. 1, 41 (1967).
180. See Feld, supra note 145, at 46.
181. See id. at 244. Feld studied the rates of representation in New York, South Dakota, Pennsylvania, California, and Minnesota. In urban areas, representation reached as high as 95.9%. In the Midwest, it reached a low of 37.5%. See id. at 54-55.
182. Fare v. Michael C., 442 U.S. 707, 724-25 (1979); see supra notes 145-50 and accompanying text.
183. A broad based Westlaw search was conducted.
184. See, e.g., People v. Shawnn F., 40 Cal. Rptr. 2d 263, 268 (Ct. App. 1995) (recognizing the differences in the potential inquiries a judge may make to a 15-year-old and a 17-year-old).
185. See, e.g., K.M. v. State, 448 So. 2d 1124, 1125 (Fla. Dist. Ct. App. 1984) (requiring a thorough inquiry as to whether the juvenile waiver of counsel was made voluntarily and intelligently, and that it "be at least equal to that accorded an adult"); State ex rel. Jones, 372 So. 2d 779, 780 (La. Ct. App. 1979) (finding that retarded 15-year-old "lacked capacity to intelligently waive his right to counsel").
186. Faretta v. California, 422 U.S. 806, 835 (1975).
187. People v. Poplawski, 30 Cal. Rptr. 2d 760, 766 (Ct. App. 1994) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)).
188. Huff v. K.P., 302 N.W.2d 779, 282-83 (N.D. 1981).
189. See id.
190. In re R.M., 252 A.2d 237, 240 (N.J. 1969).
191. In re Manuel R., 543 A.2d 719, 725 (Conn. 1988) (citation omitted).
192. Id.
193. Id. at 725-26.
194. Id. at 726-27.
195. See Feld, supra note 145, at 241-48 (criticizing the "totality of the circumstances" approach in cases concerning waivers of rights by minors).
196. Miranda v. Arizona, 384 U.S. 436, 479 (1966); see also Patterson v. Illinois, 487 U.S. 285, 292-93 (1988) (finding that Miranda warning was sufficient to inform petitioner of his right to counsel).
197. See North Carolina v. Butler, 441 U.S. 369, 372-73 (1979).
198. See In re Lucas F., 510 A.2d 270, 273-74 (Md. Ct. Spec. App. 1986) (suggesting that, albeit unlikely, even a waiver of rights by a 10-year-old may meet the criteria); see also Commonwealth v. Philip S., 611 N.E.2d 226, 233 (Mass. 1993) (finding a knowing and intelligent waiver of rights by a 12-year-old).
199. See, e.g., State v. Nicholas S., 444 A.2d 373, 377 (Me. 1982) (stating that "[t]he simple balancing of factors can only lead to a cursory appraisal of the juvenile's position thereby threatening the protection of his fundamental constitutional rights").
200. West v. United States, 399 F.2d 467, 469 (5th Cir. 1968), cert. denied, 393 U.S. 1102 (1969).
201. See Nicholas 5., 444 A.2d at 378 (stating that "[s]uch a focus in not inappropriate; it is, in most instances, however, inadequate").
202. See State v. Perez, 591 A.2d 119, 125 (Conn. 1991) (citing cases such as State v. Mattox, 550 P.2d 630, 633 (Ariz. 1976); People v. Prude, 363 N.E.2d 371, 373-74 (Ill.), cert. denied, 434 U.S. 930 (1977); State v. O'Connor, 346 N.W.2d 8, 10 (Iowa 1984); Edwards v. State, 608 P.2d 1006, 1011 (Kan. 1980); and State v. Manns, 329 S.E.2d 865, 870 (W. Va. 1985)).
203. In re Manuel R., 543 A.2d 719, 724-25 & n.6 (Conn. 1988).
204. State v. Perez, 591 A.2d at 124-25 & n.14.
205. 487 U.S. 285 (1988).
206. Id. at 292-93.
207. See In re Robert O., 439 N.Y.S.2d 994, 995-96 (Fam. Ct. 1981).
208. See In re Owen F., 523 A.2d 627, 632-33 (Md. Ct. Spec. App. 1987); In re Welfare of M.D.S., 345 N.W.2d 723, 733 (Minn. 1984).
209. In re Welfare of S.W.T., 277 N.W.2d 507, 512 (Minn. 1979); Robert O., 439 N.Y.S.2d at 1004. But see W.M. v. State, 585 So. 2d 979, 983 (Fla. Dist. Ct. App. 1991) (finding a waiver by a 10-year-old learning disabled child).
210. In re Manual R. 543 A.2d 719, 725 (Conn. 1988).
211. McCormick's Handbook of the Law of Evidence § 329-30 (Edward W. Cleary et al. eds., 2d ed. 1972); Gail S. Perry & Gary B. Melton, Precedential Value of Judicial Notice of Social Facts: Parham as An Example, 22 J. Fam. L. 633, 634 n.7 (1983-84).
212. McCormick's Handbook of the Law of Evidence § 329-30 (Edward W. Cleary et al. eds., 2d ed. 1972); Gail S. Perry & Gary B. Melton, Precedential Value of Judicial Notice of Social Facts: Parham as An Example, 22 J. Fam. L. 633, 634 n.7 (1983-84).
213. 1 Jack B. Weinstein et al., Weinstein's Evidence, ¶ 200[06] (1995); Perry & Melton, supra note 196, at 639-40.
214. Weinstein, supra note 197, ¶ 200[01] n.14 (quoting Thayer, A Preliminary Treatise On Evidence at Common Law 279-80 (1898)); see also Perry & Melton, supra note 196, at 642-43 (discussing evidentiary cases concerning experts).
215. See Perry & Melton, supra note 196, at 647-60 (providing a critique of the scientific assumptions used by the Supreme Court in Parham v. J.R., 442 U.S. 584 (1979)).
216. See D.C. Code Ann. § 11-908 (1981) (presupposing special qualifications for judges in the District of Columbia court of general jurisdiction who are assigned to the Family Division). Unfortunately, this presupposition has almost no validity.
217. Using the age often reflects the studies of Piaget, Ambuel and Rappaport, Lewis, Wertheim and Campbell, Belter and Grisso, and others. See supra part I.
218. Grisso & Vierling, supra note 110, at 421 (discussing psychological definition of voluntary consent).
219. The Standards for Attorneys and Guardians ad Litem in Custody and Visitation Proceedings, published in 1995 by the American Academy of Matrimonial Lawyers presume competence at the age of 12 because judges begin to accord deference to children's choices at that age. See American Academy of Matrimonial Lawyers, Representing Children: Standards for Attorneys and Guardians ad Litem in Custody or Visitation Proceedings 2 (1995).
220. The Standards for Attorneys and Guardians ad Litem in Custody and Visitation Proceedings, published in 1995 by the American Academy of Matrimonial Lawyers presume competence at the age of 12 because judges begin to accord deference to children's choices at that age. See American Academy of Matrimonial Lawyers, Representing Children: Standards for Attorneys and Guardians ad Litem in Custody or Visitation Proceedings 2 (1995).
221. Len Doyal & Paul Henning, Stopping Treatment For End-Stage Renal Failure: The Rights of Children and Adolescents, 8 Pediatric Nephrology 768, 769 (1994).
222. See Wallerstein & Kelly, supra note 87, at 28-30 (discussing various traumatic situations faced by children in custody disputes).
223. Of course, there is no reason to require children at any age to choose. Divorce is a traumatic event for most children. As a result, they should not be forced to make a choice or even be encouraged to do so.
224. An informed consent dialogue conducted with an adolescent who is familiar with divorce and who can reason about alternatives has been found to produce sound results. Gerald P. Koocher, Children Under the Law: The Paradigm of Consent, in Reforming The Law: Impact of Child Development Research 3, 21-23 (Gary B. Melton ed., 1987) (citing E.F. Greenberg & J. Rappaport, Predictors Of Children's Competence To Participate In Child-Custody Decision Making (1984) (unpublished manuscript)).
225. An informed consent dialogue conducted with an adolescent who is familiar with divorce and who can reason about alternatives has been found to produce sound results. Gerald P. Koocher, Children Under the Law: The Paradigm of Consent, in Reforming The Law: Impact of Child Development Research 3, 21-23 (Gary B. Melton ed., 1987) (citing E.F. Greenberg & J. Rappaport, Predictors Of Children's Competence To Participate In Child-Custody Decision Making (1984) (unpublished manuscript)).
226. While the same guidelines would apply, it is likely that there would be more challenges to the children's cognitive capacity since so many children who come before the court charged with crimes have lower IQs and educational and psychosocial deficiencies, all of which correlate to lower levels of cognitive functioning.
227. See supra notes 151, 156.
228. It is hard to imagine any benefits of waiving the right to counsel. But see Feld, supra note 145, at 73, 245 (stating that uncounseled children often receive lesser sanctions from the court than do those that have counsel).
229. See In re Maricopa County, 594 P.2d at 556 (discussing of the proper way to conduct hearings concerning waivers of the right to counsel by children and citing In re Beasley, 362 N.E.2d 1024 (Ill. 1977), cert. denied, 434 U.S. 1016 (1978); In re Rondald E., 562 P.2d 684 (Cal. 1977); In re Michael M., 96 Cal. Rptr. 887 (Ct. App. 1970)).
230. Grisso, supra note 45, at 1137, 1143.
231. Miranda v. Arizona, 384 U.S. 436 (1966) (finding that a suspect has the right against self-incrimination in an interrogation). The Miranda Court also stated that "our accusatory system of criminal justice demands that the government . . . produce the evidence against [the defendant] by its own independent labors, rather than by the cruel, simple expedient of compelling it from his mouth." Id. at 460 (citing Chambers v. Florida, 309 U.S. 227, 235-38 (1940)).
232. When the child's best interest and crime control clash, crime control usually prevails. See Holland & Mlyniec, supra note 3, at 19.
233. Thomas Grisso, Juveniles' Consent in Delinquency Proceedings, in Children's Competence to Consent 131, 138-40 (Gary B. Melton et al. eds., 1983); see also Belter & Grisso, supra note 45, at 907-08; Grisso, supra note 45, at 1143, 1151-52, 1164-65.
234. Grisso, supra note 45, at 1143-49; see also A. Bruce Furguson & Alan C. Douglas, A Study of Juvenile Waiver, 7 San Diego L. Rev. 39, 40-42, 54 (1970) (reaching the same results).
235. See In re R.W., 279 A.2d 709, 713 (N.J. Super. Ct. App. Div. 1971) (acknowledging that even adult lay people are not equipped to understand or waive the rights).
236. See Maine v. Nicholas S., 444 A.2d 373, 378 (Me. 1982) ("The totality-of-the-circumstances approach requires a broader evaluation of the circumstances surrounding a confession than examination of only the words spoken and actions taken by the parties during the actual period of questioning.").
237. The Bellotti test requires courts to find either that the child is mature or that the abortion is in her best interest. Bellotti v. Baird, 443 U.S. 622, 643-44 (1979).
238. Perkins, supra note 123, at *3.
239. Id.
240. Id.
241. Richard A. Knox, Billy Best's Case Reveals Gray Area of Patient Rights, Boston Globe, Nov. 23, 1994, Metro/Region, at 1, 19.
242. Id.
243. See supra notes 123, 138 and accompanying text.