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May 20, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

As readers of this blog well know, United States Supreme Court precedents establish that parents in this country have parental rights and those rights are based in the Constitution and “natural law.” Numerous Supreme Court opinions either hold that or refer to it in dicta. The most recent, Troxel v. Granville, established a presumption that fit parents act in the interests of their children. Among other things, that means the state has no interest in intervening in parental decision-making unless it has proven unfitness on the part of parents. Such is the law of the land.

This article is a good quick and dirty summary of the constitutional rights of parents (Washington Post, 4/24/15). Sitting in for the usual Eugene Volokh is Ilya Somin, who takes the case of Alexander and Danielle Meitiv as his starting point. The Meitivs are the “free-range” parenting advocates who twice have had their two children taken by Montgomery County CPS, first for allowing them to walk two miles home from a park and second for allowing them to play there unattended. Neither of those activities violates any law and the children were in no way harmed, except by CPS. The Meitivs announced their intention to sue CPS, a step Somin says frankly he supports.

He then sketches their legal position in light of applicable case law.

In two landmark cases in the 1920s, Meyer v. Nebraska and Pierce v. Society of Sisters, the Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment protects parents’ and guardians “to direct the upbringing and education of children under their control.” In Pierce, the Court applied that right to strike down an Oregon law requiring all children aged 8 to 16 to attend public schools rather than private ones, despite the state’s argument that standardized public schooling would ensure that all children get a good education.

In the 2000 case of Troxel v. Granville, the Court reaffirmed the “fundamental right of parents to make decisions concerning the care, custody, and control of their children,” which it called “perhaps the oldest of the fundamental liberty interests recognized by this Court.” The plurality opinion by Justice Sandra Day O’Connor (joined by three other members of the Court) emphasized that state officials must apply a strong presumption that parents’ decisions about the upbringing of their children are correct, and cannot abridge parental control over child-raising based on “mere disagreement” with the parents’ choices. In a concurring opinion, Justice Clarence Thomas argued for even stronger protection of parental autonomy, noting that laws that infringe on “fundamental” constitutional rights are usually subject to “strict scrutiny” — the highest standard of judicial review. Justice John Paul Stevens’ dissenting opinion also advocated a strong presumption in favor of parental control.

Admittedly, one can reject the idea that parental rights are protected by the Fourteenth Amendment and claim that Meyer and Pierce were wrongly decided. Justice Antonin Scalia advocated that position in his dissent in Troxel. But Scalia is a rare outlier, and his opinion does not consider the extensive historical evidence indicating that the Due Process Clause and the Privileges or Immunities Clause were intended to protect otherwise unenumerated natural rights and common law rights against violation by state governments. At this point, the correctness of Meyer and Pierce is widely accepted by conservatives, liberals, and libertarians, as well as both originalists and living constitutionalists. In Troxel, conservative originalists Clarence Thomas and William Rehnquist and liberal living constitutionalists Stephen Breyer and Ruth Bader Ginsburg all reached strikingly similar conclusions on the subject (though Thomas differed from the others in basing parental rights on the Privileges or Immunities Clause of the Fourteenth Amendment rather than the Due Process Clause).

In short, the constitutional law on the issue of parental rights and the limitations on state power over parental decision-making looks to be well settled. Liberals conservatives, and those who rule according to what they believe the intentions of the Framers to be all agree. Somin goes on to say that a lawsuit by the Meitivs against CPS looks to be a “relatively easy” one for them to win. I’d say that’s putting it mildly, and Somin illustrates the point with some interesting examples.

Forcibly detaining elementary school-aged kids for walking by themselves in a safe, middle-class neighborhood doesn’t even come close to meeting the necessary standard. Statistically, such walking is extremely safe, and probably less dangerous than police officers’ actions in forcibly detaining the children and driving them to a CPS office. According to the Center for Disease Control, car accidents are a leading cause of death among small children; riding in a car as a passenger is far more dangerous for kids than walking in most neighborhoods. Far from “protecting” the two children, the police and the CPS probably put them at greater risk than they were exposed to before (though the risk was still very low in an absolute sense). The Meitivs’ parenting practices are also much safer than numerous typical childhood activities, such as participating in contact sports like basketball and hockey, or going downhill skiing. If the CPS can force parents to stop letting their children walk home from the park, it can similarly target every other comparably risky activity, including numerous sports, and even driving the children in a car.

Good points all.

The Meitivs are represented by a good firm working pro-bono. That firm of course will, once the case is concluded, ask the court to be awarded its attorney fees and will likely prevail on that motion. In short, it’s only working pro bono for now.

I bring that matter up because, although the Meitivs are highly educated and, one assumes, well-paid, not every parent who’s being (or been) harassed by CPS is. But any parent who’s suffered injustice at the hands of CPS can take the same route they did. If law firms are aware of just how blatantly CPS violates the rights of parents and how easy it is to sue, prevail and get paid, maybe there will be more lawsuits against child protective agencies. And with more successful suits just might come reform of a system that currently seems to operate as if parents’ rights are far more limited than they are and that they can be violated with impunity.

Certainly that’s what we see from CPS agencies time and again. The most reasonable parenting is often met with threats of taking children into foster care, and even tentative assertions of parental rights (as by demanding that caseworkers get a warrant before entering a child’s residence) result in angry caseworkers who then treat parents even more disdainfully than usual. Did Mom allow little Andy or Jenny to play at the end of their cul-de-sac while she watched from the porch? It’s off to foster care for the child and jail for Mom. Did Mom allow her daughter to ride her bicycle to school two miles away? She’s threatened with both having the child taken from her and jail. Those are two actual cases out of countless others I could name.

We’re regularly told by defenders of CPS that caseworkers have one of society’s toughest jobs, and that’s correct. But the Meitivs’ case isn’t an example of the fact. It should have been as easy for caseworkers as it will be for a court. Put simply, the Meitivs did nothing wrong, their children were safe and unharmed. Given all that, nothing more should have been done. But CPS made something hard out of something easy and ultimately the taxpayers of the state will pay for their wrongdoing.

I hope it happens again and again. I hope innocent parents across the country sue the child protective agencies who abuse them. Only then will common sense come to rule a child protective system that is in too many ways irresponsible and incompetent.

And, in the end, it’ll be cheaper too. How much is spent on senseless cases like the Meitivs, I don’t know. But if CPS learns to winnow out those cases and concentrate its resources on real cases of child neglect and abuse, they’ll do a better job and possibly with fewer caseworkers.

But whatever the long-range outcome of litigation against CPS based on the constitutional rights of parents, I applaud the Meitivs and any other parents willing to take on an agency that long ago stopped paying attention to parents’ rights and the need of children to be cared for by them.

I’ll have more to say in this vein tomorrow.

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#U.S.Constitution, #parentalrights, #childprotectiveservices, #childabuse

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