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Child Protection

Although children do not have a constitutional right to a safe home, a permanent, stable family, or quality care, significant strides have been made to better the lives of children. The right of a state to ensure the welfare of the children within its boundaries stems from the ancient concept of parens patriae, which means "the father of his country," and was used to describe the relationship between a king and his subjects. Today, this right is limited by the parents' legal right to be free from government intrusion in the raising and rearing of their children. The state's intervention is justified, however, if a parent is not living up to his or her responsibilities or when a child is endangered, neglected, or abused. The courts may then place the child in temporary foster care and require the parent to get assistance to remedy the problem, or may terminate the parent's rights to the child if that is found to be in the best interests of the child.

In 1960, the federal government spent only a few million dollars on child protective services. By 1980, this expenditure had risen to more than $325 million. This dramatic increase probably did not reflect an actual increase in the incidence of CHILD ABUSE but rather the effects of laws requiring HEALTH CARE and social workers to report any suspicions of child abuse, an increase in public awareness of the problem, and a broadening of the definition of child abuse. Nevertheless, children were increasingly 'falling through the cracks' and not receiving timely or effective protection from the state, and in some instances, the state was found to be not responsible for these mistakes. For example, in 1989, the U.S. Supreme Court held that the DUE PROCESS CLAUSE did not impose an affirmative duty on the state to protect a four-year-old boy from his father's violence (DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998). In that case, a young boy named Joshua was beaten so severely that half of his brain was destroyed and he now is permanently brain-damaged and profoundly retarded. A social worker assigned to the family had noted signs of past abuse and several trips to the emergency room, but had taken no action to remove Joshua from his family home. Chief Justice WILLIAM H. REHNQUIST stated that the Due Process Clause "is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security."

In 2002, billions of state and federal dollars were spent on child protective services; federal expenditures were more than $20 billion in 2001. Reporting rates for abuse to children have risen from 4 per 1000 in 1975 to 31 per 1000 in 1985 and 47 per 1000 in 1994. While more agencies have been created to handle the increased caseload, many reports are still screened out and caseworkers must prioritize among the cases they do eventually receive. State and federal funds are also allotted for children whose parents are financially unable to provide for their basic needs, such as food, shelter and medical attention. The Temporary Assistance for Needy Families (TANF) program is one program that grants federal money to needy parents to provide these basic needs for their children.

While the U.S. Constitution does not in any way mention the right of children to an education, every state has adopted compulsory education laws. The strides in securing education for children occurred at the same time that CHILD LABOR LAWS were beginning to eradicate the exploitation of children in sweatshops. By the mid-1800s, several states had passed laws restricting the number of hours children could work and requiring children who worked to also attend school for a minimum number of months each year. However, because each state had different laws and competition was fierce among states eager to attract industry, many of the laws regarding child labor were not enforced. After several unsuccessful attempts at passing effective child LABOR LAWS, Congress passed the FAIR LABOR STANDARDS ACT (FLSA), 29 U.S.C.A. § 201 et seq., which places restrictions on the hours children may work and age limitations for children performing particular jobs and employed in certain hazardous occupations. Today, every state has child labor laws—most of which are patterned after the FLSA, although some differences do exist.

The same concern for children that brought about these protections was responsible for the creation of the juvenile justice system. From the founding of the United States until the end of the nineteenth century, children who were charged with a crime were treated the same as adults. The juvenile justice system arose from an emerging conviction that rehabilitation, not punishment, would better serve the child and the state. Today, juvenile court systems have been adopted by every state. These courts hear cases involving status offenses, abuse, dependency, neglect, and termination of parental rights. Status offenses are legal infractions based solely on the age of the person, such as truancy and curfew violations. Children in the juvenile justice system have the constitutional rights of notice, counsel, PRIVILEGE AGAINST SELF-INCRIMINATION, determination of guilt BEYOND A REASONABLE DOUBT, and protection against DOUBLE JEOPARDY. However, juveniles still do not have a federal constitutional right to a jury trial and are not generally afforded bail.

All state juvenile codes provide for a juvenile to be removed from the juvenile justice system and transferred to the adult criminal courts, depending on the offense the juvenile allegedly committed or the juvenile's prior history of delinquent behavior. Once this move is made, the juvenile is entitled to all the constitutional protections afforded adults accused of crimes, such as bail and the right to a trial by jury, which may be more sympathetic and less likely to convict than would a juvenile court judge.

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