The Perils of “Parens Patriae”

To learn more about the doctrine of parens patriae, check out The Adoption and Safe Families Act of 1997: A Collision of Parens Patriae and Parents’ Constitutional Rights, by Amy Wilkinson-Hagen, available on Westlaw and LexisNexis.

by Rajan Bal

It is conceptually uncontroversial that the government has an interest in protecting children from harm. Children as a demographic are more vulnerable than adults considering how many of their choices are not their own decision (such as where they live and who they live with), and as a result the government maintains a special responsibility towards ensuring their protection.[1] The doctrine of parens patriae, “parent of the country,”[2] allows the government to embrace this responsibility by intervening in the family unit to protect children whose welfare may be at risk. Under the guise of exercising this responsibility, the government often takes overly invasive action by forcibly removing children from their homes and placing the children under the care of the state. While the government should take children out of abusive households, it often confuses abusive households with poor ones.[3] As a result, poor families, often on welfare or headed by a single parent,[4] are subject to higher rates of having their family disrupted often just because they are poor.

The government must reconcile its special responsibility to protect children with parents’ unique interest in raising their children.[5] In Meyer v. Nebraska, the Supreme Court held that parents’ right to raise their own children is a fundamental right.[6] If the government aims to interfere with the family unit to protect the welfare of the children, it must narrowly tailor its intervention to accomplish that objective.[7] If it does not, the government runs the risk of evaluating its need to intervene based on standards of care for middle-class White families, which could impose untenable standards to functioning and healthy families of different backgrounds that result in damaging outcomes.

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Combatting Congregate Care for Foster Children: One State’s Approach

by Monica Patel



Image available here

Children do better with families than without.[1] This might seem obvious, but the foster care systems across our country do not necessarily operate in accordance with this fact. In the United States, about 57,000 out of 425,000 children in the welfare system are living in group placements[2]—otherwise known as “congregate care.” Those 57,000 children are being deprived of a family environment during critical, and vulnerable, years in their development.[3] The group homes for these children vary from large institutional models to small “house parent” models.[4] States often use group placements because the local agency simply has not found an appropriate family placement, and the youth’s parents are mentally or financially unequipped to take the youth back.[5] Furthermore, African-American and Latino youth in the foster care system are more likely than white youth to be in group placements.[6]

California alone has around 64,000 children in foster care, with a little over 5,000 of those youths in congregate care.[7] In California, the high school dropout rate for youth in congregate care is fourteen percent, while only four percent of foster children not in congregate care (those in relative homes, nonrelative foster family homes, pre-adoptive homes, or trial home visits) drop out of high school.[8] Researchers in 2008 found that foster youth in group placements were 2.4 times as likely to be arrested as foster youth in family placements.[9] By these measures and others, long-term congregate care does not serve our foster children well.[10]

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Ability to Pay and the Consequences of License Suspension

by Brendan Cardella-Koll

It is no secret that the debt collection schemes that courts impose across the country disproportionately impact indigent individuals, even sometimes to the point of functioning as modern debtors’ prisons.[1] One such scheme, which has become the target of recent litigation in Tennessee, calls for the suspension of an individual’s license for failure to pay traffic fines.[2] The lawsuit targets this scheme as an unduly harsh and discriminatory debt collection method against poor residents.[3] The complaint alleges that courts impose fines without consideration of an individual’s ability to pay and then notifies the Tennessee Department of Safety and Homeland Security (“the Department”) of a failure to pay without any mention of the reason for nonpayment.[4] The Department is not required to make any inquiry into the reason for nonpayment before suspending a license, and Tennessee law imposes additional fees for the reinstatement of licenses suspended for failure to pay traffic fines.[5] In multiple other jurisdictions, debt collectors do not seek to determine an individual’s ability to pay nor do they allow indigent individuals to establish any sort of payment plan for the traffic fine.[6] As a result, if an individual is brought before the court for a traffic offense with an attached fine, the individual must be able to pay the fine in full or face the suspension of his or her license.

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