A ROBUST DEFENSE: THE CRITICAL COMPONENTS FOR A REIMAGINED FAMILY DEFENSE PRACTICE

Kara R. Finck[1]

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At its core, family defense protects the legal relationship between a parent and their child, one of the most intimate, complicated, and nuanced relationships in practice and under the law. Family defenders represent parents and caregivers accused of neglect or abuse of their children in family and dependency courts. While the process of individual representation may appear straightforward, the ideals of family defense incorporate an explicit recognition of the social determinants that bring families into the child welfare system in the first place, including poverty, substance abuse, and untreated mental health issues. Although much of the attention paid to the child welfare and family court systems is focused on children and their placement in foster care, family defenders understand that any intervention by the child welfare agency and family court system has a profound impact on children and families. Often referred to as attorneys for parents, in literal contrast to attorneys for children, family defenders advocate beyond the direct representation of an individual client. Even the act of renaming lawyers for parents in abuse and neglect proceedings as “family defenders” as opposed to “parents’ attorneys” highlights the potential impact and scope of this work. Inherently, family defense practice incorporates legal advocacy that supports, strengthens, and stabilizes the client’s family, consequently promoting better outcomes for children.

This article posits that there are three critical components which should be included in any family defense practice model designed for advocating for parents and children in the child welfare and family court systems. A robust family defense is defined not only by its commitment to the zealous defense of clients, including all of the legal tools available in litigation, but also by its recognition of the unique context of family defense, which incorporates social services, community engagement, and anti-poverty lawyering into a comprehensive response for parents in family court.

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Family Defense in the Age of Black Lives Matter

Erin Cloud, Rebecca Oyama & Lauren Teichner[1]

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One hundred years from now, today’s child welfare system will surely be condemned as a racist institution—one that compounded the effects of discrimination on Black families by taking children from their parents, allowing them to languish in a damaging foster care system or to be adopted by more privileged people. School children will marvel that so many scholars and politicians defended this devastation of Black families in the name of protecting Black children. The color of America’s child welfare system is the reason Americans have tolerated its destructiveness.

Dorothy Roberts, Shattered Bonds (2012)

“Black people love their children with a kind of obsession. You are all we have, and you come to us endangered.”

Ta-Nehisi Coates, Between the World and Me (2015)

Introduction[2]

All families have a constitutional right to be together, free from the unwarranted interference of third parties, particularly the state. This is an intrinsic human right that encompasses the right of parents to the “custody, care and nurture of [their] child[ren]”[3] and the parallel right of children to be raised by and live with their parents.[4] This fundamental right recognizes the inherent value in family ties, which provide a connection to culture and identity, and serve as a protective social bond. Of course, the government must be permitted to pursue measures to ensure the protection – and even the adoption – of children for whom it is ultimately deemed too unsafe to return home. But any such interference into the family structure, particularly the drastic step of taking children from their families, should be the exception to the rule and not the norm of child protective practices.

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A HYBRID MODEL FOR FAMILY DEFENSE: COMBINING A PUBLIC INTEREST LAW FIRM, A LEGAL SERVICES PROGRAM AND A POWERFUL PRO BONO NETWORK TO FORGE CUTTING-EDGE LEGAL ADVOCACY FOR FAMILIES IN THE CHILD WELFARE SYSTEM

Diane L. Redleaf *

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A. Introduction to the Family Defense Center’s Model for Family Defense

This article discusses the key ingredients to the success of an unusual family defense organization, the Chicago-based Family Defense Center (the “Center”), which I founded in 2005 after a long career at both a legal services office and a public interest law firm. The Center uses a hybrid public interest law firm/legal services/pro bono network model, along with a sliding scale fee-for-service program, to fulfill its mission of advocating for justice for families in the child welfare system. The Center is devoted to addressing the needs of families, especially families who are targets of child protection investigations. By design, the Center works in a unique and highly specialized niche. But because child protection investigations arise from a wide range of allegations against family members, from domestic violence, to medically complex cases involving fractures and head injuries, to claims of sexual abuse, the practical and substantive expertise of the Center is very broad.

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Medical Marijuana Post-McIntosh

Robert L. Greenberg*

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Introduction

On August 16, 2016, the United States Court of Appeals for the Ninth Circuit issued a landmark decision on a series of cases relating to businesses and individuals in the state-legal cannabis business. In United States v. McIntosh,[1] the Court heard ten cases challenging the United States Department of Justice (DOJ) prosecution of medical marijuana patients. These cases involved criminal defendants who were charged with violations of federal narcotics laws while ostensibly in compliance with the laws of their respective states.[2] The court determined that federal law prohibits the prosecution of these cases when the defendants are otherwise in compliance with state law. The impact of this decision is discussed infra.

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WHAT PUBLIC DEFENDERS DON’T (HAVE TO) TELL THEIR CLIENTS

Steven Zeidman*

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Introduction

New York State courts, like many other state and federal courts, have seen an increase in cases that pit lawyer versus client; where the lawyer wanted to proceed in one way and the client wanted to go in another direction. The resulting decisions, often inconsistent and irreconcilable, reflect the difficulties in navigating the lawyer-client relationship.

Recently, the New York Court of Appeals again waded directly into the muddy waters of attorney versus client decision-making.[1] On the face of it, the Court was deciding whether counsel needed his client’s consent before telling the prosecutor that his client would not exercise his statutory right to testify in the Grand Jury.[2] However, lurking beneath the surface are the larger and related questions of who, between lawyer and client, has ultimate decision-making power, and what information lawyers must provide clients about their rights.

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Morales-Santana Before the U.S. Supreme Court: Gender Discrimination in Derivative Citizenship with Consequences for Gender Equity, Parental Responsibility and Children’s Well Being

Professor Janet Calvo*

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On November 9, 2016, the U.S. Supreme Court will hear arguments in Lynch v. Morales-Santana.[1] The case directly addresses the constitutionality of gender differences in the acquisition of U.S. citizenship by statute through parentage.[2] But the case is infused with issues about the historical record of discrimination based in gender, non-marital birth, race and imperialism in U.S. law. The outcome of the case will be legally and socially significant because of the standards the Court may apply to gender discrimination and to a remedy for discrimination in the context of citizenship and because of the societal message sent regarding parental responsibility for non-marital children grounded in gender stereotypes.

Specifically, the case involves the statutory difference in acquiring U.S. citizenship at birth outside of the U.S. through an out of wedlock citizen father as versus an out of wedlock citizen mother.[3] Persons become U.S. citizens at birth through parental heritage based on the statute in effect on the date of the person’s birth.[4] At issue in Morales-Santana is the longer time of physical presence in the U.S. required for a non-marital father before his child is born as versus a non-marital mother, as a condition for the child’s acquisition of citizenship at birth.[5]

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THE MANY MEANINGS OF MONTGOMERY V. LOUISIANA: HOW THE SUPREME COURT REDEFINED RETROACTIVITY AND MILLER V. ALABAMA

Brandon Buskey*

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Introduction

Henry Montgomery has survived the remarkable arc of the Supreme Court’s evolution juvenile sentencing. In 1970, Louisiana sentenced him to die in prison for the murder of a police officer, a crime he committed when he was seventeen years old.[1] The sentence was mandatory, and it was perfectly legal. At that time it was also perfectly legal to execute juveniles. A generation later, the Supreme Court barred the execution of children under age sixteen in 1988,[2] but the next year refused to extend the bar to all juveniles.[3] Not until 2005 did the Court exempt all juveniles from the death penalty.[4] In half a decade, the Court ruled that juveniles could not be imprisoned for life without any possibility of release for non-homicides.[5] A mere two years later, yet forty-six years after Mr. Montgomery’s conviction, the Court declared, in Miller v. Alabama,[6] that mandatory life sentences like Mr. Montgomery’s were unconstitutional.

Miller confirmed the lessons of these prior decisions that children’s youth and immaturity make them categorically different for sentencing purposes, and that life imprisonment without parole is akin to the death penalty for juveniles. Thus, automatically sentencing children to a lifetime of imprisonment “poses too great a risk of disproportionate punishment.”[7] The Eighth Amendment’s protection against “cruel and usual punishments” therefore prohibits such sentences.

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I Am a Victim Too: Applying the “Dual Victim-Offender” Framework to Reform New York’s Family Court System

Nikki Whetstone*

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Introduction

New York has two separate judicial systems within Family Court: one for children who are considered “victims,” and another for those who are considered “offenders.” Children whose parents are suspected of abuse/neglect are placed in dependency court, under the guise that the state must step in as parens patriae to protect the well-being of the child.[1] On the other hand, children who are accused of committing a crime are placed in delinquency court, with the purpose of protecting society and holding the youth accountable for their actions, while also attempting to rehabilitate them.[2] However, often the same social and familial circumstances lead children to become involved in both systems, simultaneously yet separately becoming both the “victim” and the “offender” in the eyes of the court. Despite recent efforts to reform the family court system, New York fails to address the needs of youth who are involved in both delinquency and dependency court.

This paper first examines the separate theoretical and historical foundations of both New York dependency and delinquency court, including their differing rationales and treatment of children. Part II of this paper evaluates the correlation between victimization and offending, and the connection between dependent youth and their subsequent involvement in the delinquency system (“dual-status youth”). Finally, part III explores the “dual victim-offender” framework and offers this as a lens to be used by Family Court to inform their view of children and, in turn, reform the way children are treated in the system.

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LABOUR STANDARDS IN INTERNATIONAL LAW: ALL STATES SHOULD HAVE AN OBLIGATION TO PUNISH MISCONDUCTS OF MULTINATIONAL ENTERPRISES UNDER INTERNATIONAL CUSTOMARY LAW

Andrea Scozzaro*

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Introduction

This article addresses the issues of unethical employment practices and lack of fair labor standards in developing countries. The discussion on such problems, although ongoing since the 1970s, is still of primary importance both within the scholarly community and the wider public. The fact that big, multinational enterprises of developed countries still engage in violations of workers’ rights is certainly stunning, yet not so surprising given the connections between such violations and the current structure of the global economy. In the wake of a nearly fifty-years-old process of globalization, the worldwide implementation of competition rules in the labor market stimulates “race to the bottom” outcomes, with millions of workers in developing countries suffering from slavery-like working conditions, wages below subsistence level, and inhumane treatments.

Despite the progress made in the field of labor protection thanks to private and governmental initiatives in the last several decades, the current legal tools used to avoid massive workers’ rights violations have been proven ineffective. This is due to the apparently unsolvable friction that exists between the huge economic power of enterprises and the desperate need for economic support of developing countries.

 

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A FIGHT FOR THE RIGHT TO CARRY LUGGAGE: SOUTH KOREA’S RISE IN GLOBAL PROMINENCE AND ITS ENSUING EFFORT TO DETER DISABILITY DISCRIMINATION

Lindsay Lee Cowen*

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Introduction

These days, the world knows South Korea (“Korea”) as the land of Samsung,[1] kimchi,[2] and k-pop,[3] for which its upsurge in popularity owes “Gangnam Style” much thanks.[4] Below the surface of this most recent hallyu, or “Korean wave”[5] of popular culture ascendency across the globe, lies the darker side of Korea. Numerous articles have scrutinized its colossal plastic surgery industry, questioning the motives behind such procedures and crowning Seoul the new plastic surgery capital of the world.[6] A generation of transnational adoptees has renewed attention in what, during the 1988 Summer Olympics,[7] was labeled the country’s greatest shame: mass exportation of unwanted babies.[8] Media outlets have exposed a “remote island where the enslavement of disabled salt farm workers is an open secret.”[9]

Nonetheless, the hallyu surges forward. Tourism rates in 2015 nearly tripled those from only a decade prior.[10] College student study of foreign languages has declined nearly 7% since 2009, yet enrollment in Korean-language classes increased 45% from 2009 to 2013.[11] In 2014, The Huffington Post launched “Huffpost Korea” and published an article proclaiming what the country can teach “the rest of the world about living well,”[12] while ignoring its low happiness index and high suicide rate.[13]

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