Challenging the Parent-Child-State Triangle in Public Family Law: The Importance of Private Providers in the Dependency System

Buffalo Law Review

Volumn 47, Issue 3, 1999, Pages 1397-1454

  Mangold, Susan Vivian ^a  

^a UNIVERSITY AT BUFFALO   (United States)

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EID: 0033260251     PISSN: 00239356     EISSN: None     Source Type: Journal    
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References (255)

1. Barbara Bennett Woodhouse traces the social and legal context of the constitutional framework of parent-child-state but also challenges the framework itself. See Barbara Bennett Woodhouse, 'Who Owns the Child?': Meyer, Pierce and the Child as Property, 33 WM. AND MARY L. REV. 995, 1051 (1992). She argues for a more duty-oriented recognition of rights and responsibilities and deconstructs present notions of nuclear family and parental responsibility, exposing the limits of the present framework in recognizing the reality of children's lives and needs. See Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents' Rights, 14 CARDOZO L. REV. 1747 (1993); Barbara Bennett Woodhouse, "It All Depends on What You Mean by Home": Toward a Communitarian Theory of the "Nontraditional" Family, 1996 UTAH L. REV. 569 (1996). Hillary Rodham hinted at such an inclusive model in her article Children Under the Law. Hillary Rodham, Children Under the Law, in THE RIGHTS OF CHILDREN 1 (1974). In that piece, she suggested that issues of child placement and review of those placements should be determined by boards made up of persons from the child's community. The boards would include professional workers such as would be employed by provider agencies. At the outset, she adopts the accepted triangle. "These issues of family autonomy and privacy, state responsibility and children's independence are complex, but they determine how children are treated by the nation's legislatures, courts and administrative agencies." Id. However, at the conclusion of her article, she challenges the closed triangle. "Without an increase in community involvement, the best drafted laws and most eloquent judicial opinions will merely recycle past disappointments." Id. at 28.
2. Barbara Bennett Woodhouse traces the social and legal context of the constitutional framework of parent-child-state but also challenges the framework itself. See Barbara Bennett Woodhouse, 'Who Owns the Child?': Meyer, Pierce and the Child as Property, 33 WM. AND MARY L. REV. 995, 1051 (1992). She argues for a more duty-oriented recognition of rights and responsibilities and deconstructs present notions of nuclear family and parental responsibility, exposing the limits of the present framework in recognizing the reality of children's lives and needs. See Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents' Rights, 14 CARDOZO L. REV. 1747 (1993); Barbara Bennett Woodhouse, "It All Depends on What You Mean by Home": Toward a Communitarian Theory of the "Nontraditional" Family, 1996 UTAH L. REV. 569 (1996). Hillary Rodham hinted at such an inclusive model in her article Children Under the Law. Hillary Rodham, Children Under the Law, in THE RIGHTS OF CHILDREN 1 (1974). In that piece, she suggested that issues of child placement and review of those placements should be determined by boards made up of persons from the child's community. The boards would include professional workers such as would be employed by provider agencies. At the outset, she adopts the accepted triangle. "These issues of family autonomy and privacy, state responsibility and children's independence are complex, but they determine how children are treated by the nation's legislatures, courts and administrative agencies." Id. However, at the conclusion of her article, she challenges the closed triangle. "Without an increase in community involvement, the best drafted laws and most eloquent judicial opinions will merely recycle past disappointments." Id. at 28.
3. Barbara Bennett Woodhouse traces the social and legal context of the constitutional framework of parent-child-state but also challenges the framework itself. See Barbara Bennett Woodhouse, 'Who Owns the Child?': Meyer, Pierce and the Child as Property, 33 WM. AND MARY L. REV. 995, 1051 (1992). She argues for a more duty-oriented recognition of rights and responsibilities and deconstructs present notions of nuclear family and parental responsibility, exposing the limits of the present framework in recognizing the reality of children's lives and needs. See Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents' Rights, 14 CARDOZO L. REV. 1747 (1993); Barbara Bennett Woodhouse, "It All Depends on What You Mean by Home": Toward a Communitarian Theory of the "Nontraditional" Family, 1996 UTAH L. REV. 569 (1996). Hillary Rodham hinted at such an inclusive model in her article Children Under the Law. Hillary Rodham, Children Under the Law, in THE RIGHTS OF CHILDREN 1 (1974). In that piece, she suggested that issues of child placement and review of those placements should be determined by boards made up of persons from the child's community. The boards would include professional workers such as would be employed by provider agencies. At the outset, she adopts the accepted triangle. "These issues of family autonomy and privacy, state responsibility and children's independence are complex, but they determine how children are treated by the nation's legislatures, courts and administrative agencies." Id. However, at the conclusion of her article, she challenges the closed triangle. "Without an increase in community involvement, the best drafted laws and most eloquent judicial opinions will merely recycle past disappointments." Id. at 28.
4. Barbara Bennett Woodhouse traces the social and legal context of the constitutional framework of parent-child-state but also challenges the framework itself. See Barbara Bennett Woodhouse, 'Who Owns the Child?': Meyer, Pierce and the Child as Property, 33 WM. AND MARY L. REV. 995, 1051 (1992). She argues for a more duty-oriented recognition of rights and responsibilities and deconstructs present notions of nuclear family and parental responsibility, exposing the limits of the present framework in recognizing the reality of children's lives and needs. See Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents' Rights, 14 CARDOZO L. REV. 1747 (1993); Barbara Bennett Woodhouse, "It All Depends on What You Mean by Home": Toward a Communitarian Theory of the "Nontraditional" Family, 1996 UTAH L. REV. 569 (1996). Hillary Rodham hinted at such an inclusive model in her article Children Under the Law. Hillary Rodham, Children Under the Law, in THE RIGHTS OF CHILDREN 1 (1974). In that piece, she suggested that issues of child placement and review of those placements should be determined by boards made up of persons from the child's community. The boards would include professional workers such as would be employed by provider agencies. At the outset, she adopts the accepted triangle. "These issues of family autonomy and privacy, state responsibility and children's independence are complex, but they determine how children are treated by the nation's legislatures, courts and administrative agencies." Id. However, at the conclusion of her article, she challenges the closed triangle. "Without an increase in community involvement, the best drafted laws and most eloquent judicial opinions will merely recycle past disappointments." Id. at 28.
5. Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925); Prince v. Massachusetts, 321 U.S. 158 (1944); Wisconsin v. Yoder, 406 U.S. 205 (1972). This parent-child-state framework has been adopted by the major commentators on family law. See CHILD, FAMILY AND STATE (Robert H. Mnookin & D. Kelly Weisberg eds., 3d ed. 1995) (assuming, through title and organization, that the parent-child-state balance is the organizing framework); Robert H. Mnookin, Final Observations, in IN THE INTEREST OF CHILDREN 511 (Robert H. Mnookin, ed., 1985) ("At the most basic level, the question 'Who decides?' concerns the allocation of power and responsibility among child, family and state."); SAMUEL M. DAVIS, ET AL., CHILDREN IN THE LEGAL SYSTEM 1 (2d ed. 1997) ("How should decision making authority be allocated between child and parent, and equally important, how should that same power be allocated between parent and state? Essentially, the question is 'Who decides what is best for a child?'"). In Griswold v. Connecticut, 381 U.S. 479, 502 (1965), Justice White, in concurrence, suggests that the constitutional protection so carefully crafted by the majority and concurrences in the case is obvious. It would be unduly repetitious, and belaboring the obvious, to expound on the impact of the statute [criminalizing contraception] on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right 'to marry, establish a home and bring up children,' Meyer v. Nebraska, 262 U.S. 390, 399, and 'the liberty . . . to direct the upbringing and education of children,' Pierce v. Society of Sisters, 268 U.S. 510, 534-35 . . . ."
6. Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925); Prince v. Massachusetts, 321 U.S. 158 (1944); Wisconsin v. Yoder, 406 U.S. 205 (1972). This parent-child-state framework has been adopted by the major commentators on family law. See CHILD, FAMILY AND STATE (Robert H. Mnookin & D. Kelly Weisberg eds., 3d ed. 1995) (assuming, through title and organization, that the parent-child-state balance is the organizing framework); Robert H. Mnookin, Final Observations, in IN THE INTEREST OF CHILDREN 511 (Robert H. Mnookin, ed., 1985) ("At the most basic level, the question 'Who decides?' concerns the allocation of power and responsibility among child, family and state."); SAMUEL M. DAVIS, ET AL., CHILDREN IN THE LEGAL SYSTEM 1 (2d ed. 1997) ("How should decision making authority be allocated between child and parent, and equally important, how should that same power be allocated between parent and state? Essentially, the question is 'Who decides what is best for a child?'"). In Griswold v. Connecticut, 381 U.S. 479, 502 (1965), Justice White, in concurrence, suggests that the constitutional protection so carefully crafted by the majority and concurrences in the case is obvious. It would be unduly repetitious, and belaboring the obvious, to expound on the impact of the statute [criminalizing contraception] on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right 'to marry, establish a home and bring up children,' Meyer v. Nebraska, 262 U.S. 390, 399, and 'the liberty . . . to direct the upbringing and education of children,' Pierce v. Society of Sisters, 268 U.S. 510, 534-35 . . . ."
7. Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925); Prince v. Massachusetts, 321 U.S. 158 (1944); Wisconsin v. Yoder, 406 U.S. 205 (1972). This parent-child-state framework has been adopted by the major commentators on family law. See CHILD, FAMILY AND STATE (Robert H. Mnookin & D. Kelly Weisberg eds., 3d ed. 1995) (assuming, through title and organization, that the parent-child-state balance is the organizing framework); Robert H. Mnookin, Final Observations, in IN THE INTEREST OF CHILDREN 511 (Robert H. Mnookin, ed., 1985) ("At the most basic level, the question 'Who decides?' concerns the allocation of power and responsibility among child, family and state."); SAMUEL M. DAVIS, ET AL., CHILDREN IN THE LEGAL SYSTEM 1 (2d ed. 1997) ("How should decision making authority be allocated between child and parent, and equally important, how should that same power be allocated between parent and state? Essentially, the question is 'Who decides what is best for a child?'"). In Griswold v. Connecticut, 381 U.S. 479, 502 (1965), Justice White, in concurrence, suggests that the constitutional protection so carefully crafted by the majority and concurrences in the case is obvious. It would be unduly repetitious, and belaboring the obvious, to expound on the impact of the statute [criminalizing contraception] on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right 'to marry, establish a home and bring up children,' Meyer v. Nebraska, 262 U.S. 390, 399, and 'the liberty . . . to direct the upbringing and education of children,' Pierce v. Society of Sisters, 268 U.S. 510, 534-35 . . . ."
8. This paper will use the term "dependency system" to describe the whole range of social and legal services provided to children at risk of abuse and neglect at the hands of their caretakers. The dependency system is a component of the more comprehensive child welfare system, which includes childcare, health, and nutrition and other publicly funded programs in addition to those targeted to abused and neglected children. The "system" is characterized by paralyzing crisis and lack of coordination. In 1991, the National Commission on Children appointed by then President Bush stated in its report, "If the nation had deliberately designed a system that would frustrate the professionals who staff it, anger the public who finance it, and abandon the children who depend on it, it could not have done a better job than the present child welfare system." NATIONAL COMMISSION ON CHILDREN, BEYOND RHETORIC: A NEW AGENDA FOR CHILDREN AND FAMILIES, FINAL REPORT OF THE NAT'L COMM'N ON CHILDREN (1991). The term "child protection" will be used in this paper to describe only the front end of the dependency system - reporting, investigating, and record keeping of allegations of abuse and neglect.
9. Wilder v. Bernstein, 848 F.2d 1338 (2d Cir. 1988) (rejecting challenge to settlement of the case). Earlier aspects of the case and subsequent litigation regarding fees are discussed infra. See Smith v. Organization of Foster Families for Equity and Reform ("O.F.F.E.R."), 431 U.S. 816 (1977).
10. Courts have repeatedly commented on the complexity and chaos of the dependency system with its many subcontracting private provider agencies. "Even with the best of intentions, the complex foster care system, comprised of state regulatory boards, local DSS offices and myriad private contracting agencies (roughly 80 in New York City) has been shown to fail thousands of children and families." In re Jonathan D., 412 N.Y.S. 2d 733, 738 (1978).
11. See generally, Proceedings of the Conference on Ethical Issues in the Legal Representation of Children: Recommendations of the Conference, 64 FORDHAM L. REV. 1301 (1996).
12. The author thanks Paul Colomy, a constructive commentator on an earlier draft of this paper presented at the Annual Meeting of the Law and Society Association (June 1998) for raising this issue.
13. See supra note 2.
14. See Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925).
15. See Woodhouse, "Who Owns the Child," supra note 1.
16. See Martha Minow, We the Family: Constitutional Rights and American Families, 74 J. AMER. HIST. 959 (Dec. 1987).
17. See infra Part III B.
18. See Pierce, 286 U.S. at 536.
19. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
20. Id. at 400.
21. Id.
22. Id. at 401.
23. Id. at 401-02.
24. Id. at 402.
25. Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925).
26. Id. at 531-32.
27. Id. at 534.
28. Id. at 534-35.
29. Prince v. Massachusetts, 321 U.S. 158 (1944) (appellant is caretaking aunt). The three cases building the parent-state-child framework of rights and responsibilities are all brought by "others." See id; see also Meyer v. Nebraska, 268 U.S. 390, 391 (1923) (stating plaintiff is teacher); Pierce, 268 U.S. at 511 (stating plaintiff is private provider agency).
30. Prince, 321 U.S. at 166-67.
31. 406 U.S. 205 (1972).
32. Id. at 213-14.
33. The rights of children were not considered explicitly by the majority but they were raised by Justice Douglas in his dissent. The framework developed was a triangle of rights and duties on behalf of, but not owed to or by the child. See id. at 241 (Douglas, J. dissenting and arguing for a remand to consider the wishes of the children whose parents were convicted under the law).
34. Id. at 232-34.
35. 455 U.S. 745 (1982).
36. 489 U.S. 89 (1989).
37. Santosky, 455 U.S. at 769.
38. See id.
39. Santosky, 455 U.S. at 753.
40. For a provocative discussion of the thirteenth amendment as the more appropriate cause of action in this case, see Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 HARV. L. REV. 1359 (1992).
41. See DeShaney, 489 U.S. at 191.
42. See id. at 197.
43. 848 F.2d 1388 (2d Cir. 1988).
44. 431 U.S. 816 (1977).
45. 385 F. Supp. 1013 (S.D.N.Y. 1974).
46. Wilder v. Bernstein, 645 F. Supp. 1292, 1315 (S.D.N.Y. 1986) ("Plainly, an agency's decisions relating to the acceptance and care of a child placed with the agency by SSC, where the State and City remain ultimately responsible for the child's welfare, and where the agency's decisions are directly circumscribed by state and/or city regulations, contain a 'sufficiently close nexus [with] the State . . . so that the action of the [agency] may be fairly treated as that of the State itself") (citations omitted).
47. Wilder v. Bernstein, 848 F.2d at 1341 (stating that "New York City has the option of caring for these children in its own facilities or contracting with private agencies. In pursuance of a long tradition, it has elected to rely heavily on private agencies. At present, more than 90% of the children are placed through private agencies. The city contracts with some sixty private agencies. About ninety percent of the per diem expenses of the children are paid to the agencies from federal, state and city funds.").
48. In 1992, nineteen private provider agency intervenors were awarded attorneys' fees from the city. They intervened to challenge the settlement agreed to by the city. See Wilder v. Bernstein, 965 F.2d 1196, 1198 (2d Cir. 1992). In 1989, when considering the fees in the lower court, the court stated, "[T]he intervenors consistently and forcefully articulated objections addressed to the constitutional and civil rights issues in this litigation. Their efforts helped to vindicate the civil rights of the children and families in the foster care system which they served, not just their own self interests." Wilder v. Bernstein, 725 F. Supp. 1324, 1332 (S.D.N.Y. 1989).
49. See Wilder v. Bernstein 49 F.3d 69, 70-71 (2d Cir. 1995).
50. Id. at 71; see David L. Chambers & Michael S. Wald, Smith v. O.F.F.E.R., in IN THE INTEREST OF CHILDREN 67, 77-78 (Robert H. Mnookin ed., 1985); Martin Guggenheim, State-Supported Foster Care: The Interplay Between the Prohibition of Establishing Religion and the Free Exercise Rights of Parents and Children: Wilder v. Bernstein, 56 BROOK. L. REV. 603, 611 (1990).
51. Id. at 71; see David L. Chambers & Michael S. Wald, Smith v. O.F.F.E.R., in IN THE INTEREST OF CHILDREN 67, 77-78 (Robert H. Mnookin ed., 1985); Martin Guggenheim, State-Supported Foster Care: The Interplay Between the Prohibition of Establishing Religion and the Free Exercise Rights of Parents and Children: Wilder v. Bernstein, 56 BROOK. L. REV. 603, 611 (1990).
52. See Wilder v. Bernstein, 645 F. Supp. 1292 (S.D.N.Y. 1986).
53. See Smith v. O.F.F.E.R., 431 U.S. 816, 822 n.1 (1977); Chambers & Wald, supra note 45, at 68.
54. See Chambers & Wald, supra note 45, at 81.
55. See id.
56. 431 U.S. at 825 n. 11 (citing Brief for Legal Aid Society, Juvenile Rights Division, as Amicus Curiae, 14, n.22). The Court in Wilder v. Bernstein elaborates on the complexity of the roles played by private agencies. Even for the 40% of children placed in kinship care or foster care provided by extended family members, 30% are still supervised by private provider agencies. Wilder v. Bernstein, 49 F.3d 69, 71 (2d Cir. 1995).
57. Smith v. O.F.F.E.R., 431 U.S. at 826 n.16.
58. Id. at 833-34.
59. For a discussion of the origins of child welfare reaching back to Elizabethan Poor Laws, see Marsha Garrison, Child Welfare Decisionmaking: In Search of the Least Drastic Alternative, 75 GEO. L. J. 1745, 1750 (1987).
60. See CHILDREN AND YOUTH IN AMERICA: A DOCUMENTARY HISTORY, Vol. I, 1600-1865, 27-29 (Robert H. Bremner ed., 1970) [hereinafter CHILDREN AND YOUTH, Vol. I].
61. See CHILDREN AND YOUTH IN AMERICA: A DOCUMENTARY HISTORY, Vol. I, 1600-1865, 27-29 (Robert H. Bremner ed., 1970) [hereinafter CHILDREN AND YOUTH, Vol. I].
62. See id. at 28-29.
63. See id. at 27-29.
64. See id.
65. See id.
66. THE BOOK OF THE GENERAL LAUUES AND LIBERTYES CONCERNING THE INHABITANTS OF THE MASSACHUSETS (1648) reprinted in HARVARD UNIVERSITY, THE LAWS AND LIBERTIES OF MASSACHUSETTS 11 (1929).
67. THE BOOK OF THE GENERAL LAUUES AND LIBERTYES CONCERNING THE INHABITANTS OF THE MASSACHUSETS (1648) reprinted in HARVARD UNIVERSITY, THE LAWS AND LIBERTIES OF MASSACHUSETTS 11 (1929).
68. Id.
69. Id.
70. See CHILDREN AND YOUTH, Vol. I, supra note 54, at 64.
71. Id.
72. CHILDREN AND YOUTH, Vol. I, supra note 54, at 68 (citing Watertown Records I, 103-104, 105, 107); see also Mary Ann Mason, Masters and Servants: the American Colonial Model of Child Custody and Control, 2 INT'L J. CHILDREN'S RTS. 317, 327-29 (1994).
73. CHILDREN AND YOUTH, Vol. I, supra note 54, at 68 (citing Watertown Records I, 103-104, 105, 107); see also Mary Ann Mason, Masters and Servants: the American Colonial Model of Child Custody and Control, 2 INT'L J. CHILDREN'S RTS. 317, 327-29 (1994).
74. CHILDREN AND YOUTH, Vol. I, supra note 54, at 68 (citing Watertown Records I, 103-104, 105, 107); see also Mary Ann Mason, Masters and Servants: the American Colonial Model of Child Custody and Control, 2 INT'L J. CHILDREN'S RTS. 317, 327-29 (1994).
75. CHILDREN AND YOUTH, Vol. I, supra note 54, at 42 (citing Mass. Records VI, 240-41). For examples of other laws of the era, see id.
76. CHILDREN AND YOUTH, Vol. I, supra note 54, at 42 (citing Mass. Records VI, 240-41). For examples of other laws of the era, see id.
77. See The Body of Liberties of 1641: The Liberties of the Massachusets Collonie in New England, 1641, in EDWIN POWERS, CRIME AND PUNISHMENT IN EARLY MASSACHUSETTS: 1620-1692, 533 (1966). It is interesting to note that assaults upon wives, except in self defense, were prohibited, whereas beating children was only actionable if unnaturally severe. "Everie marryed woeman shall be free from bodilie correction or stripes by her husband, unlesse it be in his owne defence upon her assalt." Id. at 542.
78. See The Body of Liberties of 1641: The Liberties of the Massachusets Collonie in New England, 1641, in EDWIN POWERS, CRIME AND PUNISHMENT IN EARLY MASSACHUSETTS: 1620-1692, 533 (1966). It is interesting to note that assaults upon wives, except in self defense, were prohibited, whereas beating children was only actionable if unnaturally severe. "Everie marryed woeman shall be free from bodilie correction or stripes by her husband, unlesse it be in his owne defence upon her assalt." Id. at 542.
79. WILLIAM H. WHITMORE, THE COLONIAL LAWS OF MASSACHUSETTS: REPRINTED FROM THE EDITION OF 1672 (1890) (reprinting The Body of Liberties of 1641, at 51). For a discussion of the English stockholder interests prompting codification of colonial law, see ELIZABETH PLECK, DOMESTIC TYRANNY: THE MAKING OF AMERICAN SOCIAL POLICY AGAINST FAMILY VIOLENCE FROM COLONIAL TIMES TO THE PRESENT 22 (1987).
80. WILLIAM H. WHITMORE, THE COLONIAL LAWS OF MASSACHUSETTS: REPRINTED FROM THE EDITION OF 1672 (1890) (reprinting The Body of Liberties of 1641, at 51). For a discussion of the English stockholder interests prompting codification of colonial law, see ELIZABETH PLECK, DOMESTIC TYRANNY: THE MAKING OF AMERICAN SOCIAL POLICY AGAINST FAMILY VIOLENCE FROM COLONIAL TIMES TO THE PRESENT 22 (1987).
81. WILLIAM H. WHITMORE, THE COLONIAL LAWS OF MASSACHUSETTS: REPRINTED FROM THE EDITION OF 1672 (1890) (reprinting The Body of Liberties of 1641, at 51). For a discussion of the English stockholder interests prompting codification of colonial law, see ELIZABETH PLECK, DOMESTIC TYRANNY: THE MAKING OF AMERICAN SOCIAL POLICY AGAINST FAMILY VIOLENCE FROM COLONIAL TIMES TO THE PRESENT 22 (1987).
82. See Mason, supra note 64; PLECK, supra note 67.
83. See POWERS, supra note 66, at 178.
84. The General Laws of Massachusetts Colony, 1658, state that a son who is "stubborn and rebellious and will not obey [his parents'] voice and chastisement, but lives in sundry and notorious crimes, such a son shall be put to death." THE GENERAL LAWS OF THE MASSACHUSETTS COLONY 15 (1658) (Capital Laws, ch. 13.). This provision of the laws cited to Deuteronomy 22. Before 1640, the ecclesiastical courts in England punished both children who were violent toward their parents and husbands who were violent toward their wives. "The details of family life were in no sense immune from correction and overt regulation by the canon of law." R. H. Helmholz, And Were There Children's Rights in Early Modern England?: The Canon Law and 'Intra-Family Violence' in England 1400-1640, 1 INT'L J. CHILDREN'S RTS. 23, 30 (1993). Yet, those courts in England did not challenge parental authority to prevent child maltreatment.
85. The General Laws of Massachusetts Colony, 1658, state that a son who is "stubborn and rebellious and will not obey [his parents'] voice and chastisement, but lives in sundry and notorious crimes, such a son shall be put to death." THE GENERAL LAWS OF THE MASSACHUSETTS COLONY 15 (1658) (Capital Laws, ch. 13.). This provision of the laws cited to Deuteronomy 22. Before 1640, the ecclesiastical courts in England punished both children who were violent toward their parents and husbands who were violent toward their wives. "The details of family life were in no sense immune from correction and overt regulation by the canon of law." R. H. Helmholz, And Were There Children's Rights in Early Modern England?: The Canon Law and 'Intra-Family Violence' in England 1400-1640, 1 INT'L J. CHILDREN'S RTS. 23, 30 (1993). Yet, those courts in England did not challenge parental authority to prevent child maltreatment.
86. Mary Ann Mason examined the record of two Virginia parishes to provide demographic information on involuntary apprentices. "Orphans constituted 38.1% of all child apprentices; 39.3% were classified poor children; 11% were described as illegitimate; and 12.6% were termed mulatto." Mason, supra note 64, at 326-27. This legacy is evident in the current dependency system, which is disproportionately flooded with cases of neglect as is currently culturally defined. In 1996, of the one million children who suffered confirmed maltreatment, "52 percent suffered neglect; 24 percent physical abuse; 12 percent sexual abuse; six percent emotional maltreatment; and three percent medical neglect." CHILDREN'S DEF. FUND, THE STATE OF AMERICA'S CHILDREN YEARBOOK 64-68 (1999). Similar data from the National Center on Child Abuse and Neglect for 1995 indicates that for all children with substantiated or indicated reports of maltreatment, 47% were neglected, 22% were physically abused, 11% were sexually abused, 4% were either emotionally abused or medically neglected. See CHILD WELFARE LEAGUE OF AMERICA, CHILD ABUSE AND NEGLECT: A LOOK AT THE STATES 30 (1997). "African American children comprised fifteen percent of the total U.S. child population, yet represented twenty-eight percent of the children with substantiated abuse or neglect in 1995." Id. at 19.
87. Mary Ann Mason examined the record of two Virginia parishes to provide demographic information on involuntary apprentices. "Orphans constituted 38.1% of all child apprentices; 39.3% were classified poor children; 11% were described as illegitimate; and 12.6% were termed mulatto." Mason, supra note 64, at 326-27. This legacy is evident in the current dependency system, which is disproportionately flooded with cases of neglect as is currently culturally defined. In 1996, of the one million children who suffered confirmed maltreatment, "52 percent suffered neglect; 24 percent physical abuse; 12 percent sexual abuse; six percent emotional maltreatment; and three percent medical neglect." CHILDREN'S DEF. FUND, THE STATE OF AMERICA'S CHILDREN YEARBOOK 64-68 (1999). Similar data from the National Center on Child Abuse and Neglect for 1995 indicates that for all children with substantiated or indicated reports of maltreatment, 47% were neglected, 22% were physically abused, 11% were sexually abused, 4% were either emotionally abused or medically neglected. See CHILD WELFARE LEAGUE OF AMERICA, CHILD ABUSE AND NEGLECT: A LOOK AT THE STATES 30 (1997). "African American children comprised fifteen percent of the total U.S. child population, yet represented twenty-eight percent of the children with substantiated abuse or neglect in 1995." Id. at 19.
88. For a discussion of prosecutions beginning in the mid-1800's, see infra Part II (b).
89. See CHILDREN AND YOUTH, Vol. I, supra note 54, at 60-63.
90. In February 1775, of the 622 paupers on the books of the New York City Almshouse, 259 were children, mostly under nine years of age. The authorities made every effort to bind out even these young children. In 1788, laws were passed allowing children in New York City, Albany and Hudson to be bound out without parental consent. The mayor, recorder, or aldermen could approve such an arrangement for any child found begging in the streets. By 1795, 40% of the "inmates" at the almshouse in New York City were children under nine years of age. In 1797, following a yellow fever epidemic that filled the New York City almshouse with widows and their children, a group of women founded the Ladies Society for the Relief of Poor Widows with Small Children. The group was incorporated by law in 1802. In-kind help was given to assist widows in making a livelihood but no relief was granted to women who refused to place out their children who were able to work. By 1800, the Society helped 152 widows with 420 children and in 1803 received state funding, raised by lottery, to continue its work. In 1806, an orphanage was founded by the Society. At the time, it was only the second such institution in the young country, the other being in Charleston, South Carolina. See DAVID M. SCHNEIDER, THE HISTORY OF PUBLIC WELFARE IN NEW YORK STATE 1609-1866, at 179-189 (1938). Amidst the development of institutional care for children in the mid-nineteenth century, the population of children in almshouses continued to grow. The census of 1880 showed that 7,770 children between the ages of two and sixteen were in almshouses in the United States. See Mason P. Thomas, Child Abuse and Neglect Part I: Historical Overview, Legal Matrix, and Social Perspectives, 50 N.C. L. REV. 293, 302 n.37 (1972) citing HOMER FOLKS, THE CARE OF DESTITUTE, NEGLECTED AND DEPENDENT CHILDREN 1-11 (1902).
91. In February 1775, of the 622 paupers on the books of the New York City Almshouse, 259 were children, mostly under nine years of age. The authorities made every effort to bind out even these young children. In 1788, laws were passed allowing children in New York City, Albany and Hudson to be bound out without parental consent. The mayor, recorder, or aldermen could approve such an arrangement for any child found begging in the streets. By 1795, 40% of the "inmates" at the almshouse in New York City were children under nine years of age. In 1797, following a yellow fever epidemic that filled the New York City almshouse with widows and their children, a group of women founded the Ladies Society for the Relief of Poor Widows with Small Children. The group was incorporated by law in 1802. In-kind help was given to assist widows in making a livelihood but no relief was granted to women who refused to place out their children who were able to work. By 1800, the Society helped 152 widows with 420 children and in 1803 received state funding, raised by lottery, to continue its work. In 1806, an orphanage was founded by the Society. At the time, it was only the second such institution in the young country, the other being in Charleston, South Carolina. See DAVID M. SCHNEIDER, THE HISTORY OF PUBLIC WELFARE IN NEW YORK STATE 1609-1866, at 179-189 (1938). Amidst the development of institutional care for children in the mid-nineteenth century, the population of children in almshouses continued to grow. The census of 1880 showed that 7,770 children between the ages of two and sixteen were in almshouses in the United States. See Mason P. Thomas, Child Abuse and Neglect Part I: Historical Overview, Legal Matrix, and Social Perspectives, 50 N.C. L. REV. 293, 302 n.37 (1972) citing HOMER FOLKS, THE CARE OF DESTITUTE, NEGLECTED AND DEPENDENT CHILDREN 1-11 (1902).
92. In February 1775, of the 622 paupers on the books of the New York City Almshouse, 259 were children, mostly under nine years of age. The authorities made every effort to bind out even these young children. In 1788, laws were passed allowing children in New York City, Albany and Hudson to be bound out without parental consent. The mayor, recorder, or aldermen could approve such an arrangement for any child found begging in the streets. By 1795, 40% of the "inmates" at the almshouse in New York City were children under nine years of age. In 1797, following a yellow fever epidemic that filled the New York City almshouse with widows and their children, a group of women founded the Ladies Society for the Relief of Poor Widows with Small Children. The group was incorporated by law in 1802. In-kind help was given to assist widows in making a livelihood but no relief was granted to women who refused to place out their children who were able to work. By 1800, the Society helped 152 widows with 420 children and in 1803 received state funding, raised by lottery, to continue its work. In 1806, an orphanage was founded by the Society. At the time, it was only the second such institution in the young country, the other being in Charleston, South Carolina. See DAVID M. SCHNEIDER, THE HISTORY OF PUBLIC WELFARE IN NEW YORK STATE 1609-1866, at 179-189 (1938). Amidst the development of institutional care for children in the mid-nineteenth century, the population of children in almshouses continued to grow. The census of 1880 showed that 7,770 children between the ages of two and sixteen were in almshouses in the United States. See Mason P. Thomas, Child Abuse and Neglect Part I: Historical Overview, Legal Matrix, and Social Perspectives, 50 N.C. L. REV. 293, 302 n.37 (1972) citing HOMER FOLKS, THE CARE OF DESTITUTE, NEGLECTED AND DEPENDENT CHILDREN 1-11 (1902).
93. MICHAEL GROSSBERG, GOVERNING THE HEARTH 266 (1985).
94. SCHNEIDER, supra note 74, at 208.
95. See id.
96. See id.
97. Mason, supra note 64, at 317 (citing RICHARD B. MORRIS, GOVERNMENT AND LABOR IN EARLY AMERICA 391 (1946)).
98. See Mason, supra note 64, at 325 (citing ABBOT EMERSON SMITH, COLONISTS IN BONDAGE 148 (1965)).
99. See Mason, supra note 64, at 325.
100. See id.
101. See CHILDREN AND YOUTH, Vol. I, supra note 54, at 7-8 (citing Acts of the Privy Council of England, 1619-1621, 118 (1930)).
102. See CHILDREN AND YOUTH, Vol. I, supra note 54, at 7-8 (citing Acts of the Privy Council of England, 1619-1621, 118 (1930)).
103. Id.
104. See Mason, supra note 64, at 325.
105. Id.
106. Id. (citing CHILDREN AND YOUTH, Vol. I, supra note 54, at 115).
107. This dual response invoking the criminal law for abuse and the civil law for neglect has been carried over to the present dependency system, but today, cases of abuse are a small but defining percentage in the civil system as well. Discussed in Part III, cases of neglect make up the vast majority of current caseloads but the system is driven by responses to egregious cases of abuse. Abuse is sometimes concurrently criminally prosecuted. See Part III, infra.
108. In Stanfield v. State, the court rejected the lower court charge, which focused on the instrument used in the beating, instead focusing on the manner of the Defendant. The charge asked and given does not mend the matter, which was that the jury could not convict the defendant 'unless the chastisement was done in a cruel or vindictive manner.' Was the correction moderate? If it was, defendant was not guilty of an assault and battery at all (citation omitted). If it was not moderate, but excessive, he was guilty as charged of an aggravated assault and battery by having exceeded the boundary of his legal right as guardian under the law, and placed himself in the attitude of a stranger and not a parent to the child. Whether it is moderate or excessive must necessarily depend upon the age, sex, condition and disposition of the child, with all the attending and surrounding circumstances, to be judged of by the jury . . . . 43 Tenn. 167, 168 (Austin Term 1875). In Johnson v. State, similar reasoning was used. The right of parents to chastise their refractory and disobedient children is so necessary to the government of families, to the good of society, that no moralist or lawgiver has ever thought of interfering with its existence, or of calling upon them to account for the manner of its exercise, upon light or frivolous pretenses. But, at the same time, that the law has created and preserved this right, in its regard for the safety of the child it has prescribed bounds beyond which it shall not be carried. In chastising a child, the parent must be careful that he does not exceed the bounds of moderation and inflict cruel and merciless punishment; if he do, he is a trespasser, and liable to be punished by indictment. It is not, then, the infliction of punishment, but the excess, which constitutes the offence, and what this excess shall be is not a conclusion of law, but a question of fact for the determination of the jury. 21 Tenn. 291 (No. 283) (noting that the case was decided in Nashville but was unreported. Dates not given).
109. In Neal v. Georgia, the court affirmed that one "lick" with an old saw was "cruel and outrageous abuse of the parental authority and made the perpetrator of it guilty," while also noting that a "very large margin must be left open to the parent." 54 Ga. 281, 282 (1875).
110. SeeState v. Jones, 95 N.C. 465, 466 (1886).
111. Id.
112. See Lela B. Costin, Unraveling the Mary Ellen Legend: Origins of the "Cruelty" Movement, 1992 SOC. SERVICES REV. 203 (1991).
113. For a summary discussion of earlier foundations of child protection in response to child labor and orphans in colonial times and through the civil war, see Neil A. Cohen, Child Welfare History in the United States, in CHILD WELFARE: A MULTICULTURAL FOCUS 13 (Neil A. Cohen ed., 1992). For a discussion of the emergence of protection of children within the societies for the protection of cruelty to animals before the Mary Ellen case, see Costin, supra note 93.
114. See Costin, supra note 93, at 204.
115. Mr. Bergh Enlarging His Sphere of Usefulness: Inhuman Treatment of a Little Waif - Her Treatment - A Mystery to Be Cleared Up, N. Y. TIMES, April 10, 1874.
116. Perhaps because Mrs. Wheeler's husband was a newspaper man, the case is graphically and fully reported in the paper. See Costin, supra note 93, at 210; N.Y. TIMES, Apr. 10, 1874, at 8; N.Y. TIMES, Apr. 11, 1874, at 2; N.Y. TIMES, Apr. 14, 1874, at 2; N.Y. TIMES, Apr. 28, 1874, at 8; N.Y. TIMES, Dec. 27, 1874, at 12. For a compilation of related articles and papers of the New York Society for The Prevention of Cruelty to Children, see CHILDREN AND YOUTH IN AMERICA: A DOCUMENTARY HISTORY, Vol. II, 1866-1932 Parts 1-6, 185-97 (Robert H. Bremner ed., 1971) [hereinafter CHILDREN AND YOUTH, Vol. II, Parts 1-6].
117. Perhaps because Mrs. Wheeler's husband was a newspaper man, the case is graphically and fully reported in the paper. See Costin, supra note 93, at 210; N.Y. TIMES, Apr. 10, 1874, at 8; N.Y. TIMES, Apr. 11, 1874, at 2; N.Y. TIMES, Apr. 14, 1874, at 2; N.Y. TIMES, Apr. 28, 1874, at 8; N.Y. TIMES, Dec. 27, 1874, at 12. For a compilation of related articles and papers of the New York Society for The Prevention of Cruelty to Children, see CHILDREN AND YOUTH IN AMERICA: A DOCUMENTARY HISTORY, Vol. II, 1866-1932 Parts 1-6, 185-97 (Robert H. Bremner ed., 1971) [hereinafter CHILDREN AND YOUTH, Vol. II, Parts 1-6].
118. See The Mission of Humanity, N.Y. TIMES, Apr. 11, 1874, at 2; Costin, supra note 93, at 207; CHILDREN AND YOUTH, Vol. II, Parts 1-6, supra note 97, at 187.
119. See The Mission of Humanity, N.Y. TIMES, Apr. 11, 1874, at 2; Costin, supra note 93, at 207; CHILDREN AND YOUTH, Vol. II, Parts 1-6, supra note 97, at 187.
120. Because he was deceased, this case did not impinge on the rights of Mary Ellen's father. Mary Ellen's mother's rights are not at issue in the prosecution because her mother had abandoned her or had been separated from her much earlier, so her rights are not at issue in the prosecution. Mary Connolly, taking on the custodianship of Mary Ellen as her stepmother, may have been prosecuted because of this legal relationship. It is also possible that she was prosecuted, despite her ultimate willingness to allow Mrs. Wheeler into the flat against the wishes of her husband, because she was the "mother" of the child and was therefore responsible for her care under nineteenth century notions of parenting. Mr. Connolly's drunkenness, violence against Mary Ellen and possible violence against Mrs. Connolly are ignored, perhaps because he had no legal relationship to the child or perhaps because his behavior, as an unrelated "man in the house" was not as shocking to the norms of child care at the time.
121. The Mission of Humanity, NEW YORK TIMES, Apr. 11, 1874 at 2.
122. See CHILDREN AND YOUTH, Vol. I, supra note 54, at 187.
123. See id.
124. See id.
125. See Mrs. Connolly, the Guardian, Found Guilty, and Sentenced to One Year's Imprisonment at Hard Labor, N.Y. TIMES, Apr. 28, 1874, at 8.
126. See generally MARIE ASHE, Postmodernism, Legal Ethics, and Representation of "Bad Mothers", in MOTHERS IN LAW: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD 142-66 (Martha Albertson Fineman & Isabel Karpin eds., 1995); Marie Ashe & Naomi R. Cahn, Child Abuse: A Problem for Feminist Theory, 2 TEX. J. WOMEN & L. 75 (1993); V. Pualani Enos, Prosecuting Battered Mothers: State Laws' Failure to Protect Battered Women and Abused Children, 19 HARV. WOMEN'S L.J. 229 (1996); NATIONAL CENTER ON WOMEN AND FAMILY LAW, FAILURE TO PROTECT: A REFERENCE MANUAL FOR NEW YORK ATTORNEYS REPRESENTING BATTERED WOMEN AT RISK OF LOSING THEIR PARENTAL RIGHTS FOR FAILURE TO PROTECT THEIR CHILDREN FROM THE ABUSER (1993).
127. See generally MARIE ASHE, Postmodernism, Legal Ethics, and Representation of "Bad Mothers", in MOTHERS IN LAW: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD 142-66 (Martha Albertson Fineman & Isabel Karpin eds., 1995); Marie Ashe & Naomi R. Cahn, Child Abuse: A Problem for Feminist Theory, 2 TEX. J. WOMEN & L. 75 (1993); V. Pualani Enos, Prosecuting Battered Mothers: State Laws' Failure to Protect Battered Women and Abused Children, 19 HARV. WOMEN'S L.J. 229 (1996); NATIONAL CENTER ON WOMEN AND FAMILY LAW, FAILURE TO PROTECT: A REFERENCE MANUAL FOR NEW YORK ATTORNEYS REPRESENTING BATTERED WOMEN AT RISK OF LOSING THEIR PARENTAL RIGHTS FOR FAILURE TO PROTECT THEIR CHILDREN FROM THE ABUSER (1993).
128. See generally MARIE ASHE, Postmodernism, Legal Ethics, and Representation of "Bad Mothers", in MOTHERS IN LAW: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD 142-66 (Martha Albertson Fineman & Isabel Karpin eds., 1995); Marie Ashe & Naomi R. Cahn, Child Abuse: A Problem for Feminist Theory, 2 TEX. J. WOMEN & L. 75 (1993); V. Pualani Enos, Prosecuting Battered Mothers: State Laws' Failure to Protect Battered Women and Abused Children, 19 HARV. WOMEN'S L.J. 229 (1996); NATIONAL CENTER ON WOMEN AND FAMILY LAW, FAILURE TO PROTECT: A REFERENCE MANUAL FOR NEW YORK ATTORNEYS REPRESENTING BATTERED WOMEN AT RISK OF LOSING THEIR PARENTAL RIGHTS FOR FAILURE TO PROTECT THEIR CHILDREN FROM THE ABUSER (1993).
129. See generally MARIE ASHE, Postmodernism, Legal Ethics, and Representation of "Bad Mothers", in MOTHERS IN LAW: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD 142-66 (Martha Albertson Fineman & Isabel Karpin eds., 1995); Marie Ashe & Naomi R. Cahn, Child Abuse: A Problem for Feminist Theory, 2 TEX. J. WOMEN & L. 75 (1993); V. Pualani Enos, Prosecuting Battered Mothers: State Laws' Failure to Protect Battered Women and Abused Children, 19 HARV. WOMEN'S L.J. 229 (1996); NATIONAL CENTER ON WOMEN AND FAMILY LAW, FAILURE TO PROTECT: A REFERENCE MANUAL FOR NEW YORK ATTORNEYS REPRESENTING BATTERED WOMEN AT RISK OF LOSING THEIR PARENTAL RIGHTS FOR FAILURE TO PROTECT THEIR CHILDREN FROM THE ABUSER (1993).
130. See CHILDREN AND YOUTH, Vol. I, supra note 54, at 189-97.
131. See Linda Gordon, Child Abuse, Gender and the Myth of Family Independence: Thoughts on the History of Family Violence and Its Social Control 1880-1920, 12 REV. L. & SOC. CHANGE 523 (1983-84).
132. See Costin, supra note 93, at 213.
133. Elbridge Gerry, Thirty First Annual Meeting of the American Humane Association (Albany, N.Y. 1907), cited in Costin, supra note 93, at 219. At this 1907 speech at the Annual Meeting of the Society, Gerry was also clear that the society's purpose was to rescue children and refer their parents for prosecution, not to provide treatment. The New York Society for the Prevention of Cruelty to Children ("N.Y.S.P.C.C.") was "not created for the purpose of educating or reforming children, or seeing that they were transported into other homes." Id. This description was meant in part to differentiate the purposes of the Society from the work of the New York Children's Aid Society which gathered up children from the industrializing Northeast cities and sent them on "orphan trains" to the rural Midwest where they were given "proper homes" through an informal indenture. These rescue efforts are also distinguishable from turn-of-the-century child protection efforts. Carl Carstens led the first of these agencies, the Massachusetts Society for the Prevention of Cruelty to Children. In 1907, at that Society's Annual Meeting, Carstens stated the broader mission of child protection: "Children will still need to be rescued from degrading surroundings for many years to come but the society recognizes more definitely that it is a preventive agency." MASSACHUSETTS SOC. FOR PREVENTION OF CRUELTY TO CHILDREN, 1907 ANNUAL REPORT 27, cited in Paul Gerard Anderson, The Origin, Emergence, and Professional Recognition of Child Protection, 63 SOC. SERVICES REV. 222 (1989).
134. Elbridge Gerry, Thirty First Annual Meeting of the American Humane Association (Albany, N.Y. 1907), cited in Costin, supra note 93, at 219. At this 1907 speech at the Annual Meeting of the Society, Gerry was also clear that the society's purpose was to rescue children and refer their parents for prosecution, not to provide treatment. The New York Society for the Prevention of Cruelty to Children ("N.Y.S.P.C.C.") was "not created for the purpose of educating or reforming children, or seeing that they were transported into other homes." Id. This description was meant in part to differentiate the purposes of the Society from the work of the New York Children's Aid Society which gathered up children from the industrializing Northeast cities and sent them on "orphan trains" to the rural Midwest where they were given "proper homes" through an informal indenture. These rescue efforts are also distinguishable from turn-of-the-century child protection efforts. Carl Carstens led the first of these agencies, the Massachusetts Society for the Prevention of Cruelty to Children. In 1907, at that Society's Annual Meeting, Carstens stated the broader mission of child protection: "Children will still need to be rescued from degrading surroundings for many years to come but the society recognizes more definitely that it is a preventive agency." MASSACHUSETTS SOC. FOR PREVENTION OF CRUELTY TO CHILDREN, 1907 ANNUAL REPORT 27, cited in Paul Gerard Anderson, The Origin, Emergence, and Professional Recognition of Child Protection, 63 SOC. SERVICES REV. 222 (1989).
135. Elbridge Gerry, Thirty First Annual Meeting of the American Humane Association (Albany, N.Y. 1907), cited in Costin, supra note 93, at 219. At this 1907 speech at the Annual Meeting of the Society, Gerry was also clear that the society's purpose was to rescue children and refer their parents for prosecution, not to provide treatment. The New York Society for the Prevention of Cruelty to Children ("N.Y.S.P.C.C.") was "not created for the purpose of educating or reforming children, or seeing that they were transported into other homes." Id. This description was meant in part to differentiate the purposes of the Society from the work of the New York Children's Aid Society which gathered up children from the industrializing Northeast cities and sent them on "orphan trains" to the rural Midwest where they were given "proper homes" through an informal indenture. These rescue efforts are also distinguishable from turn-of-the-century child protection efforts. Carl Carstens led the first of these agencies, the Massachusetts Society for the Prevention of Cruelty to Children. In 1907, at that Society's Annual Meeting, Carstens stated the broader mission of child protection: "Children will still need to be rescued from degrading surroundings for many years to come but the society recognizes more definitely that it is a preventive agency." MASSACHUSETTS SOC. FOR PREVENTION OF CRUELTY TO CHILDREN, 1907 ANNUAL REPORT 27, cited in Paul Gerard Anderson, The Origin, Emergence, and Professional Recognition of Child Protection, 63 SOC. SERVICES REV. 222 (1989).
136. See supra note 109 for earlier examples of the three types of efforts: rescuing (N.Y.), placing (Children's Aid Soc.) and working with children (Massachusetts).
137. See C. Henry Kempe, et al., The Battered-Child Syndrome, 181 J. AM. MED. ASS'N. 1 (1962).
138. See C. Henry Kempe, Paediatric Implications of the Battered Baby Syndrome, 46 ARCHIVES OF DISEASE IN CHILDHOOD 28 (1971).
139. Barbara Nelson wrote: The first people to identify a problem often shape how others will perceive it. Nowhere is this truer than with the issue of child abuse. In "The Battered Child Syndrome," Kempe and his associates define the problem as "a clinical condition in young children who received serious physical abuse, generally from a parent or foster parent." The individually centered psychological construction of the problem made it seem very self-contained. Governmental response to a self-contained, serious, but noncontroversial issue ought to be easy to obtain. And easy it was. [A]buse reporting laws . . . were rapidly passed by all state legislatures. BARBARA NELSON, MAKING AN ISSUE OF CHILD ABUSE: POLITICAL AGENDA SETTING FOR SOCIAL PROBLEMS 13 (1984) (citing Kempe, et al., supra note 111, at 17).
140. See Kempe, supra note 112.
141. Id.
142. Id. at 31. At times in the article, Dr. Kempe does refer to mothering as a problem of mothers and fathers, but the term "parenting" or "caretaking" is not chosen. The gendered reality of whom is seen as responsible for the care of the children is clear. The failure of "mothering" is emphasized throughout. See, e.g., id. at 30.
143. Pub. L. No. 93-247, 88 Stat. 4 (codified as amended in 42 U.S.C. § 5101 et seq. (1994 & Supp. 1997)).
144. See Child Abuse Prevention Act, 1973: Hearings on S. 1191 Before the Subcomm. on Children and Youth of the Senate Comm. on Labor and Public Welfare, 93d Cong. 2 (1973) [hereinafter Mondale Hearings].
145. Id. at 2 (letter of Walter Mondale to Hon. Harrison A. Williams).
146. Id. at 300.
147. The hearings began in Washington in March 1973. They were opened by Senator Mondale, who began with the story of the recent conviction of the stepmother of Donna Stern from nearby Maryland. Referred to by Mondale as the "stepmother of Donna Stern" and never by name, the horrible acts perpetrated on the child by the stepmother were related to the subcommittee by Mondale. They were told that: "Ugly as it sounds, this is not an isolated case." Id. at 1 (opening statement of Sen. Mondale). Newspaper articles on the case are included as Press Reports in the Hearing Report. Id. at 671-82. The second witness on the first day of the hearings was Jolly K, founder of Parent's Anonymous. In response to questions by the senators, Jolly K described in clear detail the "extreme physical abuse" which she perpetrated against her daughter. Id. at 49-50. Jolly K. was the only abusive or formerly abusive parent to testify at the hearings. The abusive mother, as personified by Jolly K. and the Donna Stern case, perpetrating severe physical abuse, dominated that first day of hearings and became a reference point for the subsequent hearings. Id.
148. See Mondale Hearings, supra note 118, at 46-47 (remarks by Sen. Mondale).
149. See Barbara Bennett Woodhouse, "It All Depends on What You Mean by Home": Toward a Communitarian Theory of the "Nontraditional" Family," 1996 UTAH L. REV. 569 (discussing the changing identity of the family in the United States). Martha Minow has championed a more expansive discourse of children's rights, linking children's and women's rights to describe a "new generation" of relational rights. Martha Minow, Rights for the Next Generation: A Feminist Approach to Children's Rights, 9 HARV. WOMEN'S L. J. 3 (1986).
150. See Barbara Bennett Woodhouse, "It All Depends on What You Mean by Home": Toward a Communitarian Theory of the "Nontraditional" Family," 1996 UTAH L. REV. 569 (discussing the changing identity of the family in the United States). Martha Minow has championed a more expansive discourse of children's rights, linking children's and women's rights to describe a "new generation" of relational rights. Martha Minow, Rights for the Next Generation: A Feminist Approach to Children's Rights, 9 HARV. WOMEN'S L. J. 3 (1986).
151. In 1996, 3.1 million children were reported abused and neglected. Investigations of those reports resulted in a finding by the public agency that nearly one million children were abused and neglected. CHILDREN'S DEF. FUND, supra note 71, at 85. This means that while the state apparatus collects reports on over three million children and investigates those cases which could possibly meet the legal definition of abuse or neglect, only one-third of those cases proceed past the investigation stage. Of that one million, only a fraction receives any services. The public agency is largely a reporting, investigation, and record keeping system.
152. See Mondale Hearings, supra note 118 (Letter of Transmittal).
153. See Child Abuse Prevention and Treatment Act ("CAPTA"), Pub. L. No. 93-247, § 4, 88 Stat. 4 (codified as amended at 42 U.S.C. § 5106a(a) & (b) (1994 & Supp. 1997)) (amending 42 U.S.C. § 5106a (a) & (b) 1974).
154. See id.
155. See id.
156. See CAPTA, § 4(b)(3). Reference in this section is to Parts A and B of Title IV of the Social Security Act, which contained provisions for Aid to
157. See Mondale Hearings, supra note 118, at 49.
158. 125 CONG. REC. 110,59 (1979) (statement of Sen. Cranston).
159. See id.
160. Pub. L. 96-272, 94 Stat. 500 (1980) (codified as amended in 42 U.S.C. §§ 602, 608, 620-28, & 670-76 (1997)).
161. See 42 U.S.C. §. 671 (a)(15)(B) (1994 & Supp. 1997).
162. See 42 U.S.C. § 671 (a).
163. See CHILDREN'S DEF. FUND, THE STATE OF AMERICA'S CHILDREN YEARBOOK 22 (1994).
164. See id.
165. See, e.g., NEW YORK STATE COMMISSION ON CHILD ABUSE, FINAL REPORT (1996).
166. Pub. L. No. 105-89, 111 Stat. 2115 (codified as amended at 42 U.S.C. § 671 et seq. (1994 & Supp. 1998).
167. See 42 U.S.C. § 671 (a)(15)(D)(i) (1994 & Supp. 1998).
168. Id.
169. We do not yet know the effect of allowing states to limit the cases in which reunification services are provided. State laws were recently amended to clarify the new reasonable efforts requirements. See, e.g., 1999 N.Y. Laws Ch. 7 (A-962-A) (amending N.Y. SOC. SERV. LAW § 358-a). A broad amendment by states to the requirement of providing reunification services could further shift the balance in focus by private providers away from reunification and toward removal, placement, and adoption for more children. Effect of such a shift on the arguments made in this paper is yet unclear.
170. See Public Welfare Amendments of 1962, Pub. L. No. 87-543, § 155(a), 76 Stat. 172 (1962).
171. See 42 U.S.C. § 672 (c) (1994 & Supp. 1998).
172. For a fuller discussion of these amendments, see Peter M. Kettner & Lawrence L. Martin, Accountability in Purchase of Service Contracting, in THE PRIVATIZATION OF HUMAN SERVICES: POLICY AND PRACTICE ISSUES 183-201, (Margaret Gibelman & Howard Demone eds., 1998); Ronald P. Burd & Julius B. Richmond, The Public and Private Sector: A Developing Partnership in Human Services, 49 AM. J. ORTHOPSYCHIATRY 218 (1979).
173. For a fuller discussion of these amendments, see Peter M. Kettner & Lawrence L. Martin, Accountability in Purchase of Service Contracting, in THE PRIVATIZATION OF HUMAN SERVICES: POLICY AND PRACTICE ISSUES 183-201, (Margaret Gibelman & Howard Demone eds., 1998); Ronald P. Burd & Julius B. Richmond, The Public and Private Sector: A Developing Partnership in Human Services, 49 AM. J. ORTHOPSYCHIATRY 218 (1979).
174. See 42 U.S.C. § 672(c).
175. See id. See also Susan Vivian Mangold, Protection, Privatization, and Profit in the Foster Care System, 60 OHIO ST. L.J. (forthcoming 1999); Nina Bernstein, Deletion of One Word in Welfare Bill Opens Foster Care to Big Business, N.Y. TIMES, May 4, 1997, at A1.
176. See id. See also Susan Vivian Mangold, Protection, Privatization, and Profit in the Foster Care System, 60 OHIO ST. L.J. (forthcoming 1999); Nina Bernstein, Deletion of One Word in Welfare Bill Opens Foster Care to Big Business, N.Y. TIMES, May 4, 1997, at A1.
177. Private corporations have been providing placement services in the juvenile justice system and have raised concerns about the quality of services provided and the profits extracted from the system. See, e.g. Fox Butterfield, Profits at a Juvenile Prison Come with a Chilling Cost, N.Y. TIMES, July 15, 1998, at A1.
178. See 42 U.S.C. § 5106A(b).
179. Abuse by a non-caretaker can only be pursued criminally. The civil system is reserved for intra-familial violence.
180. See 42 U.S.C. § 5106a (b). For examples of state operational directives, see N.Y. SOC. SERV. LAW § 422 (2)(a) (McKinney 1992); Boland v. State, 638 N.Y.S.2d 500 (3d Dep't 1996).
181. See 42 U.S.C. § 5106A(b).
182. See, e.g., N.Y. SOC. SERV. LAW § 413 (McKinney 1992).
183. MURRAY LEVINE & HOWARD J. DOUECK, THE IMPACT OF MANDATED REPORTING ON THE THERAPEUTIC PROCESS (1995).
184. See CHILDREN'S DEF. FUND, supra note 71, at 92.
185. See N.Y. SOC. SERV. LAW § 424(6) (McKinney 1992).
186. See id. § 424(7).
187. See CHILDREN'S DEF. FUND, supra note 71, at 68; CHILD WELFARE LEAGUE OF AM., supra note 71, at 3.
188. See CHILDREN'S DEF. FUND, supra note 71, at 68; CHILD WELFARE LEAGUE OF AM., supra note 71, at 3.
189. In New York, as a result of the death of Eliza Izquierdo, the law was amended to keep records of unsubstantiated reports for use in future investigations. The law is known as "Eliza's Law." N. Y. SOC. SERV. LAW § 422(5) (McKinney 1992).
190. See CHILD WELFARE LEAGUE OF AMERICA., supra note 71, at 19 (providing data from 39 states).
191. See id. at 30.
192. See 42 U.S.C. § 671 (a)(15)(C) and (D) (1994 & Supp. 1998).
193. See CHILD WELFARE LEAGUE OF AMERICA, supra note 71, at 38.
194. See CHILDREN'S DEF. FUND, supra note 71, at 86.
195. See 42 U.S.C. § 675 (5)(B) (Supp. 1998).
196. See 42 U.S.C. § 671(a)(15)(C) (Supp. 1998).
197. See 42 U.S.C. § 671(a)(15)(A)(B)(C).
198. See 42 U.S.C. § 675(5)(B).
199. While inquiries into violence against the mother in the home may be part of a risk assessment at the outset of a case, the focus is on the children. If the violence threatens the children, the children can be removed. A referral may be given to the mother to tell her how to remove the perpetrator through the domestic violence system and her swiftness and success in doing so may determine how she is judged as a parent. She will also be given a variety of tasks to work toward reunification with her child. Often, she is required to maintain a stable home and income. This may make it difficult for her to remove a batterer who is the family's source of income. See generally NATIONAL CENTER ON WOMEN AND FAMILY LAW, supra note 105.
200. See NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES, A MODEL CODE ON FAMILY VIOLENCE (1994).
201. Telephone Interview with Paul Gadre, New York State Dep't of Soc. Services (May 8, 1998).
202. Letter from Robert L. Gioffre, Adoption Specialist, New York State Office of Children, Youth and Families (Nov. 4, 1998) (on file with author).
203. Telephone Interview with Susan Bane, New York State Dep't of Soc. Services (May 7, 1998).
204. Letter from Amy West, Senior Human Services Program Specialist, Florida Dep't of Children and Families (Dec. 14, 1998) (on file with author).
205. See, e.g., Francis J. Ryan, A Consortium to Coordinate Public and Voluntary Sectors Under Contract in Child Welfare, 59 CHILD WELFARE 607 (1980). Individual contracts with each private agency continue to be the norm.
206. Some states additionally allow for the participation of foster parents who are agents of the private agencies. This paper deals only with the impact of private provider agencies in dependency proceedings. For a discussion of foster parent participation, see, e.g., Smith v. O.F.F.E.R., 431 U.S. 816 (1977); Teresa Lazo-Miller, Foster Parents, Children and Youth Services, and the Court: Can Foster Children Escape the Bermuda Triangle?, 6 WIDENER J. PUB. L. 181 (1996); Michael G. Walsh, Standing of Foster Parents to Seek Termination of Rights of Foster Child's Natural Parents, 21 A.L.R. 4th 535 (1981).
207. Some states additionally allow for the participation of foster parents who are agents of the private agencies. This paper deals only with the impact of private provider agencies in dependency proceedings. For a discussion of foster parent participation, see, e.g., Smith v. O.F.F.E.R., 431 U.S. 816 (1977); Teresa Lazo-Miller, Foster Parents, Children and Youth Services, and the Court: Can Foster Children Escape the Bermuda Triangle?, 6 WIDENER J. PUB. L. 181 (1996); Michael G. Walsh, Standing of Foster Parents to Seek Termination of Rights of Foster Child's Natural Parents, 21 A.L.R. 4th 535 (1981).
208. This paper considers only the independent role of private providers before the court in dependency proceedings. For a discussion of the independent role of private providers in the context of a tort action for arising from the death of a child in foster care see Cooper v. Montgomery County Office of Children and Youth, 1993 WL 477084 (E.D. Pa. 1993).
209. See JOSEPH GOLDSTEIN, ET AL, IN THE BEST INTEREST OF THE CHILD, 91 (1986) (rejecting assignment of attorneys for children until after the court has authorized the intervention by the public agency as proper. Previously, they argued that the parent, not the public agency or the child, should have a voice in the child's care).
210. See NEB. REV. STAT. § 43-285 (1993); NEW YORK SOC. SERV. LAW § 392 (McKinney 1992 & Supp. 1997-1998); VA. CODE ANN. § 16.1-282 (Michie 1988 & Supp. 1995). Illinois law provides for notice and a right to be heard, but it explicitly states that private providers are not parties. See 705 ILL. COMP. STAT. 405/1-5 (West 1992 & Supp. 1997). In New York, the court has discussed the requirement that private provider agencies petition the court for foster care reviews. See In re the Review of the Foster Care Status of Kim W., David P., Virginia A., 444 N.Y.S.2d 864, 867 (1981).
211. See Ariz. REV. STAT. ANN. § 8-515 (West 1989 & Supp. 1997) ; COLO. REV. STAT. ANN. § 19-3-701 (West 1990 & Supp. 1997); DEL. CODE ANN. tit. 31, § 3816 (1997) ; FLA. STAT. ANN. § 39.701 (West 1998); HAW. REV. STAT. ANN. § 587-72 (Michie 1993) ; 705 ILL. COMP. STAT. 405/1-5 (West 1992 & Supp. 1997); OHIO REV. CODE ANN. § 2151.417 (Anderson 1994 & Supp. 1996); TEX. FAM. CODE ANN. § 263.501 (West Supp. 1998); WIS. STAT. ANN. § 48.38 (West 1987 & Supp. 1996). For a discussion of the right to notice and participation without party status, see, e.g., In re Appeal in Maricopa County, Juvenile Action No. J-57445, 691 P.2d 1116 (1984); In re Appeal in Pima County, Juvenile Action No. J-64016, 619 P.2d 1073 (1980); In re Amber Winkle, No. CA96-11-236, 1997 WL 14855 (Ohio Ct. App. 1997).
212. ARIZ. REV. STAT. ANN § 8-515 (West 1989 & Supp. 1997); HAW. REV. STAT. § 587-72 (1993); 705 ILL. COMP. STAT. 405/2-28 (West 1992 & Supp. 1997); OHIO REV. CODE ANN. § 2151.417 (Anderson 1994 & Supp. 1996); WIS. STAT. ANN. § 48.38 (West 1987 & Supp. 1996).
213. Eighteen-month review written report required in Arkansas, Nebraska; dispositional report in Missouri, New Hampshire, North Carolina, Texas; report for review of placement in Minnesota, Virginia; six month review written by foster parent(s) required in Kansas. ARK. CODE ANN. § 9-27-338 (Michie 1993 & Supp. 1997); NEB. REV. STAT. § 43-285 (1993); MO. ANN. STAT. § 210.720 (West 1996); N. H. REV. STAT. ANN. § 169-C:24 (1994); N.C. GEN. STAT. § 7A-657 (1995); TEX. FAM. CODE ANN. § 263.502 (West Supp. 1998); MINN. STAT. ANN. § 257.071 (West 1992 & Supp. 1998); VA. CODE ANN. § 16.1-282 (Michie 1988 & Supp. 1995); KAN. STAT. ANN. § 38-1565 (1993 & Supp. 1996).
214. In fact, there can be more than one private provider before the court and they can each take independent stands from the public agency with whom they subcontract. A uniquely complex line-up of litigants was present in In re Deborah S. In that case, the court explained: The Catholic Home Bureau, the private agency which supervised Deborah's foster-care by the Ruizes as well as the natural mother's care of the child after her return from them and attempts to rehabilitate the mother during both those periods, urges this Court to direct resumed foster-care by the Ruizes. On the other hand, the City's Commissioner of Social Services, who contracts with the private agencies and distributes funds to them for foster-care, advocates Deborah's continuance in her present foster-home [via Angel Guardian Home] in the hope of another eventual return to the mother; the natural mother joins in this position. Only the attorney assigned as Law Guardian for the child, who has conscientiously represented her since 1976, has entirely changed his position from that he then took in favor of Deborah's return to the biological mother. Based on the continued demonstration of the mother's fundamental incapacities, the Law Guardian now argues that return to the Ruizes represents the only hope of Deborah's securing the stable, nurturing care which she urgently needs. In re Deborah S., 419 N.Y.S.2d 803, 805 (1979).
215. ALA. CODE § 26-18-5 (1992); ALASKA STAT. § 25.23.180 (Michie 1996); ARIZ. REV. STAT. ANN. § 8-533 (West 1997); CONN. GEN. STAT. ANN. § 45A-715 (West 1993 & Supp. 1997) (However, in Connecticut, an Attorney General opinion stymied efforts of a joint public-private agency collaboration to place hard-to-place children for adoption. The opinion stated that the Attorney General's office could not perform the legal work for the termination of parental rights if the petition was filed by the private agency, as was called for in the project plan. The opinion reasoned that this would be representation by the Attorney General of a private agency. See Katherine Miller, Edith Fein, Gerrie Bishop and Caroline Murray, Public-Private Collaboration and Permanency Planning, April 1985 SOC. CASEWORK: J.CONTEMP. SOC. WORK 237. Legislation ultimately remedied the problem.); DEL. CODE ANN. tit. 13, § 1104 (1993); FLA. STAT. ANN. § 39.461 (West 1988); GA. CODE ANN. § 19-8-11 (Harrison 1991 & Supp. 1997); IDAHO CODE § 16-2004 (1979 & Supp. 1997); KAN. STAT. ANN. § 38-1581 (1993 & Supp. 1996); KY. REV. STAT. ANN. § 625.050 (Michie 1990); MINN. STAT. ANN. § 260.231 (West 1992 & Supp. 1998); MISS. CODE ANN. § 93-15-105 (1994 & Supp. 1997); N.J. STAT. ANN. § 9:2-18 (West 1993); N.M. STAT. ANN. § 32A-4-29 (Michie 1995 & Supp. 1997); 23 PA. CONS. STAT. ANN. § 2512 (West 1991 & Supp. 1997); R.I. GEN. LAWS § 15-7-7 (1996); S.C. CODE ANN. § 20-7-1568 (Law. Co-op. 1985 & Supp. 1997); TENN. CODE ANN. § 36-1-113 (1996 & Supp. 1997); UTAH CODE ANN. § 78-3A-404 (1996 & Supp. 1997); WIS. STAT. ANN. § 48.42 (West 1987 & Supp. 1996); WYO. STAT ANN. § 14-2-310 (Michie 1997). See also MISS. CODE ANN. § 93-15-107 (West 1994) (making the agency holding custody of the child a party plaintiff).
216. The concurring opinion in Wilhelm v. Spokane Community Mental Health Ctr. discussed the unique nature of the termination petition in finding that the parens patriae power of the state to file the petition could not be delegated absent explicit legislative authority to do so. Wilhelm v. Spokane Community Mental Health Ctr., 726 P.2d 479, 481 (1986). This delegation was considered by the court in New Hope v. Ramquist. 765 P.2d 30 (1988). In that case, the court found that the private agency had standing to file the termination petition and that the New Hope concurrence was not binding. Id.
217. This dual role can result in the same private provider agency being responsible for providing reunification services while seeking termination of parental rights. In In re Derek W. Burns, the court found that such competing interests were properly addressed on an individual case-by-case basis and that "obvious contradiction in plans for termination and reunification by the same agency" was appropriate in the case at hand. 519 A.2d 638, 643 n.5 (1986).
218. In In re Marilyn H., the foster parents who had cared for a child for nearly twelve years petitioned the court for termination. The foster parents were agents for a private provider agency that opposed the petition, along with the respondent mother and the public child welfare agency. The guardian ad litem appointed to represent the child joined with the foster parents in advocating for the adoption, which was granted. The court stated that according to the guardian ad litem, the child strongly desired her adoption. See In re Marilyn H., 436 N.Y.S. 2d 814, 815 (1981).
219. In re Review of the Foster Status of Melissa M., 421 N.Y.S.2d 300 (1979).
220. See id.
221. See D.C. STAT. NEGLECT RULE 26 (Michie 1981 & Supp. 1996); IOWA CODE ANN. § 232.117 (West 1994 & Supp. 1997); KAN. STAT. ANN. § 38-1584 (1993); MONT. CODE ANN. § 41-3-610 (1997); N.C. GEN. ANN. § 7A-657 (1995); S.C. CODE ANN. § 20-7-1574 (Law. Co-op. 1985 & Supp. 1997); UTAH CODE ANN. § 78-3A-412 (1996); WIS. STAT. § 48.43 (1987 & Supp. 1996).
222. Historically, private agencies were accountable only to donors and boards of directors. See ABA GUIDEBOOK FOR DIRECTORS OF NON-PROFIT CORPORATIONS 12-15 (George W. Overton, ed., 1993).
223. See id.
224. For a fuller discussion of the accountability generally required in the contracting process, see Margaret Gibelman, Theory, Practice and Experience in the Purchase of Services, in THE PRIVATIZATION OF HUMAN SERVICES: POLICY AND PRACTICE ISSUES, VOL. I, 1-46 (Margaret Gibelman & Harold W. Demone eds., (1998) [hereinafter Theory, Practice and Experience]. In earlier work, Gibelman rethinks the position of social work education in light of the changes in public agency services delivery. Given the increasing role of subcontracting agencies, she argues that public administration or business management may be more relevant. See Margaret Gibelman, Social Work Education and the Changing Nature of Public Agency Practice, 19 J. EDUC. FOR SOC. WORK 21 (1983).
225. For a fuller discussion of the accountability generally required in the contracting process, see Margaret Gibelman, Theory, Practice and Experience in the Purchase of Services, in THE PRIVATIZATION OF HUMAN SERVICES: POLICY AND PRACTICE ISSUES, VOL. I, 1-46 (Margaret Gibelman & Harold W. Demone eds., (1998) [hereinafter Theory, Practice and Experience]. In earlier work, Gibelman rethinks the position of social work education in light of the changes in public agency services delivery. Given the increasing role of subcontracting agencies, she argues that public administration or business management may be more relevant. See Margaret Gibelman, Social Work Education and the Changing Nature of Public Agency Practice, 19 J. EDUC. FOR SOC. WORK 21 (1983).
226. 1997 Council on Accreditation Standards, cited in Theory, Practice and Experience, supra note 193, at 25-26.
227. See supra Part II.
228. John O'Looney, Beyond Privatization and Service Integration: Organizational Models for Service Delivery, 1993 SOC. SERV. REV. 501, 502, 531 nn. 4 & 5 (citations omitted). This paper does not consider the economic forces that weigh on the accountability and autonomy of private providers in the dependency system. For a discussion about how competitive market forces favor private provider agencies that most clearly match public agency demands, and suppress their own autonomy, see Kristen Gronberg, Ted Chen, & Matthew Stagner, Child Welfare Contracting: Market Forces and Leverage, 1995 SOC. SERV. REV. 583 (1995). In the economic framework, loss of distinctive mission or autonomy can be seen as an organizational cost of subcontracting. See Ralph Kramer, Voluntary Agencies and the Contract Culture: Dream or Nightmare, 1994 SOC. SERV. REV 33, 35 (1994); see also Ralph Kramer, From Voluntarism to Vendorism: An Organizational Perspective on Contracting, in SERVICES FOR SALE: PURCHASING HEALTH AND HUMAN SERVICES, VOL. I, 97-111 (Harold W. Demone & Margaret Gibelman eds., 1989).
229. John O'Looney, Beyond Privatization and Service Integration: Organizational Models for Service Delivery, 1993 SOC. SERV. REV. 501, 502, 531 nn. 4 & 5 (citations omitted). This paper does not consider the economic forces that weigh on the accountability and autonomy of private providers in the dependency system. For a discussion about how competitive market forces favor private provider agencies that most clearly match public agency demands, and suppress their own autonomy, see Kristen Gronberg, Ted Chen, & Matthew Stagner, Child Welfare Contracting: Market Forces and Leverage, 1995 SOC. SERV. REV. 583 (1995). In the economic framework, loss of distinctive mission or autonomy can be seen as an organizational cost of subcontracting. See Ralph Kramer, Voluntary Agencies and the Contract Culture: Dream or Nightmare, 1994 SOC. SERV. REV 33, 35 (1994); see also Ralph Kramer, From Voluntarism to Vendorism: An Organizational Perspective on Contracting, in SERVICES FOR SALE: PURCHASING HEALTH AND HUMAN SERVICES, VOL. I, 97-111 (Harold W. Demone & Margaret Gibelman eds., 1989).
230. John O'Looney, Beyond Privatization and Service Integration: Organizational Models for Service Delivery, 1993 SOC. SERV. REV. 501, 502, 531 nn. 4 & 5 (citations omitted). This paper does not consider the economic forces that weigh on the accountability and autonomy of private providers in the dependency system. For a discussion about how competitive market forces favor private provider agencies that most clearly match public agency demands, and suppress their own autonomy, see Kristen Gronberg, Ted Chen, & Matthew Stagner, Child Welfare Contracting: Market Forces and Leverage, 1995 SOC. SERV. REV. 583 (1995). In the economic framework, loss of distinctive mission or autonomy can be seen as an organizational cost of subcontracting. See Ralph Kramer, Voluntary Agencies and the Contract Culture: Dream or Nightmare, 1994 SOC. SERV. REV 33, 35 (1994); see also Ralph Kramer, From Voluntarism to Vendorism: An Organizational Perspective on Contracting, in SERVICES FOR SALE: PURCHASING HEALTH AND HUMAN SERVICES, VOL. I, 97-111 (Harold W. Demone & Margaret Gibelman eds., 1989).
231. John O'Looney, Beyond Privatization and Service Integration: Organizational Models for Service Delivery, 1993 SOC. SERV. REV. 501, 502, 531 nn. 4 & 5 (citations omitted). This paper does not consider the economic forces that weigh on the accountability and autonomy of private providers in the dependency system. For a discussion about how competitive market forces favor private provider agencies that most clearly match public agency demands, and suppress their own autonomy, see Kristen Gronberg, Ted Chen, & Matthew Stagner, Child Welfare Contracting: Market Forces and Leverage, 1995 SOC. SERV. REV. 583 (1995). In the economic framework, loss of distinctive mission or autonomy can be seen as an organizational cost of subcontracting. See Ralph Kramer, Voluntary Agencies and the Contract Culture: Dream or Nightmare, 1994 SOC. SERV. REV 33, 35 (1994); see also Ralph Kramer, From Voluntarism to Vendorism: An Organizational Perspective on Contracting, in SERVICES FOR SALE: PURCHASING HEALTH AND HUMAN SERVICES, VOL. I, 97-111 (Harold W. Demone & Margaret Gibelman eds., 1989).
232. See id.
233. See 42 U.S.C. § 5106a(b)(2)(A)(ix) (1994 & Supp. 1997). For a fuller discussion of the Child Abuse Prevention and Treatment Act, see supra notes 117-130 and accompanying text.
234. 45 C.F.R. sec. 1340.14(g) (1998).
235. For a discussion of the advantages of employing social workers and others specifically trained to work with children, especially young children, see Annette R. Appell, Decontextualizing the Child Client: The Efficacy of the Attorney-Client Model for Very Young Children, 64 FORDHAM L. REV. 1955 (1996).
236. This ambiguity exists in law and in practice. For a more detailed discussion of the openness to interpretation of the advocates' role, see Emily Buss, "You're My What?" The Problem of Children's Misperceptions of Their Lawyers' Roles, 64 FORDHAM L. REV. 1699, 1700 (1996); Donald N. Duquette & Sarah Ramsey, Representation of Children in Child Abuse and Neglect Cases: An Empirical Look at What Constitutes Effective Representation, 20 U. MICH. J. L. REFORM 341; Sarah Ramsey, Representation of the Child in Protection Proceedings: The Determination of Decision-Making Capacity, 17 FAM. L.Q. 287 (1983).
237. This ambiguity exists in law and in practice. For a more detailed discussion of the openness to interpretation of the advocates' role, see Emily Buss, "You're My What?" The Problem of Children's Misperceptions of Their Lawyers' Roles, 64 FORDHAM L. REV. 1699, 1700 (1996); Donald N. Duquette & Sarah Ramsey, Representation of Children in Child Abuse and Neglect Cases: An Empirical Look at What Constitutes Effective Representation, 20 U. MICH. J. L. REFORM 341; Sarah Ramsey, Representation of the Child in Protection Proceedings: The Determination of Decision-Making Capacity, 17 FAM. L.Q. 287 (1983).
238. This ambiguity exists in law and in practice. For a more detailed discussion of the openness to interpretation of the advocates' role, see Emily Buss, "You're My What?" The Problem of Children's Misperceptions of Their Lawyers' Roles, 64 FORDHAM L. REV. 1699, 1700 (1996); Donald N. Duquette & Sarah Ramsey, Representation of Children in Child Abuse and Neglect Cases: An Empirical Look at What Constitutes Effective Representation, 20 U. MICH. J. L. REFORM 341; Sarah Ramsey, Representation of the Child in Protection Proceedings: The Determination of Decision-Making Capacity, 17 FAM. L.Q. 287 (1983).
239. There is general agreement that children in delinquency proceedings should be represented as autonomous clients. This consensus flows from a reading of In re Gault, which focuses on protection of a child's procedural due process rights when a child's liberty is at stake. In dependency cases, where a child's placement is at issue, the right to an attorney should be interpreted as in In re Gault. 387 U.S. 1 (1967). In custody cases, the role of counsel is often debated as it is in dependency proceedings. See Emily Buss, supra note 201, at 1700, n.3. Since this article is focusing on the impact of private providers in dependency cases and their participation is rare in custody cases, arguments made here do not translate into the private custody context.
240. See generally Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, 64 FORDHAM L. REV. 1301 (1996) [hereinafter Conference Proceedings]. Articles in this special issue deal specifically with the different models; see e.g., Martin Guggenheim, A Paradigm for Determining the Role of Counsel for Children, 64 FORDHAM L. REV. 1399 (1996); Jean Koh Peters, The Roles and Content of Best Interest in Client-Directed Lawyering for Children in Child Protective Proceedings, 64 FORDHAM. L. REV. 1505 (1996); Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 FORDHAM L. REV. 1655 (1996).
241. See generally Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, 64 FORDHAM L. REV. 1301 (1996) [hereinafter Conference Proceedings]. Articles in this special issue deal specifically with the different models; see e.g., Martin Guggenheim, A Paradigm for Determining the Role of Counsel for Children, 64 FORDHAM L. REV. 1399 (1996); Jean Koh Peters, The Roles and Content of Best Interest in Client-Directed Lawyering for Children in Child Protective Proceedings, 64 FORDHAM. L. REV. 1505 (1996); Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 FORDHAM L. REV. 1655 (1996).
242. See generally Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, 64 FORDHAM L. REV. 1301 (1996) [hereinafter Conference Proceedings]. Articles in this special issue deal specifically with the different models; see e.g., Martin Guggenheim, A Paradigm for Determining the Role of Counsel for Children, 64 FORDHAM L. REV. 1399 (1996); Jean Koh Peters, The Roles and Content of Best Interest in Client-Directed Lawyering for Children in Child Protective Proceedings, 64 FORDHAM. L. REV. 1505 (1996); Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 FORDHAM L. REV. 1655 (1996).
243. See generally Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, 64 FORDHAM L. REV. 1301 (1996) [hereinafter Conference Proceedings]. Articles in this special issue deal specifically with the different models; see e.g., Martin Guggenheim, A Paradigm for Determining the Role of Counsel for Children, 64 FORDHAM L. REV. 1399 (1996); Jean Koh Peters, The Roles and Content of Best Interest in Client-Directed Lawyering for Children in Child Protective Proceedings, 64 FORDHAM. L. REV. 1505 (1996); Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 FORDHAM L. REV. 1655 (1996).
244. See generally Conference Proceedings, supra note 203; American Bar Association Standards of Practice For Lawyers Who Represent Children in Abuse and Neglect Cases, CHILDREN'S RTS. CHRON., Vol. 14, No. 3, 1995-96, at 25.
245. See generally Conference Proceedings, supra note 203; American Bar Association Standards of Practice For Lawyers Who Represent Children in Abuse and Neglect Cases, CHILDREN'S RTS. CHRON., Vol. 14, No. 3, 1995-96, at 25.
246. See Katherine Hunt Federle, supra note 203.
247. See Sarah Ramsey, Representation of the Child in Protection Proceedings: The Determination of Decision-Making Capacity, 17 FAM. L.Q. 287 (1983).
248. See Peters, supra note 203; Peter Margulies, The Lawyer as Caregiver: Child Client's Competence in Context, 64 FORD. L. REV. 1473 (1996).
249. See Martin Guggenheim, The Right To Be Represented But Not Heard: Reflections on Legal Representation for Children, 59 N.Y.U. L. REV. 76 (1984) (discussing the various attorney roles, including the role of investigator).
250. See Guggenheim, supra note 203. Guggenheim advocates a traditional lawyer-client relationship for unimpaired children in any legal context. For impaired children, the underlying substantive law should inform the lawyer's representation.
251. See Ramsey, supra note 206, at 312 (suggesting a presumptive age of 7).
252. See Proceedings of the Conference on Ethical Issues in the Legal Representation of Children: Report of the Working Group on Determining the Child's Capacity to Make Decisions, 64 FORDHAM L. REV. 1339 (1996).
253. See Peter Margulies, The Lawyer as Caregiver: Child Client's Competence in Context, 64 FORDHAM L. REV. 1473 (1996).
254. See Ramsey, supra note 206, at 309-20 (suggesting that a determination of capacity can be tied to the risk presented by the position: if the risk is high, a higher degree of capacity can be required before the lawyer must be bound by the client's position. Ramsey acknowledges the subjectivity inherent in this position).
255. See Peters, supra note 203 (discussing the best interest model).