Fundamental rights v. compelling interests

[justice]

I need to present the argument that the state does not have a compelling interest in "protecting" children that do not need to be protected. The states interest should not supersede parents protected liberties until there is proof that the children need to be protected, correct? So, if the child is not removed from the home, and remains in the day to day care of the parent, does that mean the parent is still legally a "fit" parent, and still retains all protections of their rights?

The DHS catch phrase is "erring on the side of the child" which basically amounts to a conclusive presumption of guilt against any person accused of any form or maltreatment. Doesn't this violate due process?

In civil procedure, are accused persons not still entitled to the presumption that they are innocent until proven guilty?

Isn't there something about not treating a crime as a civil matter or vice versa? How can alleged child abuse be both a crime and a civil matter? Basically, CPS can extract their "pound of flesh" through civil procedure when they don't have evidence for criminal charges... isn't there something wrong with that? How would one argue such a thing?

If coerced consent is not consent at all, in regard to warrantless search/seizure, what constitutes coerced consent? If one gives in out of fear of having your children removed, even though there was not a direct, articulated threat of such, does that constitute coerced consent? If the social worker sent the message through the kids that the parent "has to" let them in and let them look at everything, and the parent caved into the pressure out of fear that the children would be taken otherwise, does that qualify?

I have so many more questions, but I guess I should start with these. I SO appreciate what you do here. I thank you in advance for any helpful insight you might offer.

 

[Michael Wechsler]

Everything you say depends upon the definition of "fitness" of the parent. With regard to civil procedure, there is a different interest involved since the loss is only money. With regard to children, the interests are much more severe as the loss can be serious physical and mental damage that could last a lifetime so we must be more careful.

You are also mixing up concepts here since with certain situations if we take such an 'act later' approach the harm may already be done and permanent. If an act was committed and we wish to prosecute someone for the offense, the prosecution of that suspect will not change the fact that the crime has already occurred. Thus we can take some time to ensure we got our man by using the concept of 'innocent until proven guilty.'

With a child, if we waited that long then the child could be long damaged by then. I believe that the idea is that if there is reasonable cause to believe (and that is a real threshold and the actual levels are specified by the law, this is just an example) that a severe situation exists, then the state does have a compelling need to protect those that cannot protect themselves.

That said, there needs to be a reason to investigate. A social worker isn't appointed and given the power you state without something having happened. Does this make sense? Do you understand the different scenarios which require a different standard?

Originally posted by justice
I need to present the argument that the state does not have a compelling interest in "protecting" children that do not need to be protected. The states interest should not supersede parents protected liberties until there is proof that the children need to be protected, correct? So, if the child is not removed from the home, and remains in the day to day care of the parent, does that mean the parent is still legally a "fit" parent, and still retains all protections of their rights?

The DHS catch phrase is "erring on the side of the child" which basically amounts to a conclusive presumption of guilt against any person accused of any form or maltreatment. Doesn't this violate due process?

In civil procedure, are accused persons not still entitled to the presumption that they are innocent until proven guilty?

Isn't there something about not treating a crime as a civil matter or vice versa? How can alleged child abuse be both a crime and a civil matter? Basically, CPS can extract their "pound of flesh" through civil procedure when they don't have evidence for criminal charges... isn't there something wrong with that? How would one argue such a thing?

If coerced consent is not consent at all, in regard to warrantless search/seizure, what constitutes coerced consent? If one gives in out of fear of having your children removed, even though there was not a direct, articulated threat of such, does that constitute coerced consent? If the social worker sent the message through the kids that the parent "has to" let them in and let them look at everything, and the parent caved into the pressure out of fear that the children would be taken otherwise, does that qualify?

I have so many more questions, but I guess I should start with these. I SO appreciate what you do here. I thank you in advance for any helpful insight you might offer.

 

[justice]

Re: Re: Fundamental rights v. compelling interests

LAW PROFESSOR SAID: "With a child, if we waited that long then the child could be long damaged by then. I believe that the idea is that if there is reasonable cause to believe (and that is a real threshold and the actual levels are specified by the law, this is just an example) that a severe situation exists, then the state does have a compelling need to protect those that cannot protect themselves."

ME: what about the harm standard? Doesn't the state have to show harm or substantial risk of harm first? And, is one anonymous, uncorroborated phone call enough to show reasonable cause?

As far as "something having happened" the only thing that has to happen to trigger an investigation is one phone call. Caseworkers have FAR too much power. It is extraordinary what the can do to a family with literally no evidence of any wrongdoing. You would be appalled.

 

[Michael Wechsler]

Re: Re: Re: Fundamental rights v. compelling interests

Originally posted by justice
LAW PROFESSOR SAID: "With a child, if we waited that long then the child could be long damaged by then. I believe that the idea is that if there is reasonable cause to believe (and that is a real threshold and the actual levels are specified by the law, this is just an example) that a severe situation exists, then the state does have a compelling need to protect those that cannot protect themselves."

ME: what about the harm standard? Doesn't the state have to show harm or substantial risk of harm first? And, is one anonymous, uncorroborated phone call enough to show reasonable cause?

As far as "something having happened" the only thing that has to happen to trigger an investigation is one phone call. Caseworkers have FAR too much power. It is extraordinary what the can do to a family with literally no evidence of any wrongdoing. You would be appalled.

I am appalled. There is supposed to be a standard but from what i witnessed it was run over by a ten ton truck. There should be a prompt investigation done to ensure accuracy but this does not seem to be the case. In the instance I witnessed a mere affidavit by grandparents sufficed to bamboozle a judge in Georgia...

It was and is disgraceful. I'm not sure what can be done but I'm hoping that, perhaps through the expansion of this site, these cases can be highlighted and something can be done. I didn't exactly get a great deal of warmth from the Georgia Bar Association and was shocked that they did not seem to care when a fellow attorney raised the issue. Perhaps I didn't get a good person to speak or perhaps this is too commonplace for them and thus the apathy. They also seemed to imply the great leeway the courts have permitted to accomplish this... it is appalling.