All of us know CPS horror stories. Parents whose children were taken by Child Protective Services for no good reason and, on the other side, children (sometimes in the course of custody battles) whose custody was granted to a parent credibly accused of abuse.
Sometimes it seems as though the only thing one can be sure of is that CPS will do, or try to do, the wrong thing. Though some of this may be a result of selection bias, one often gets the impression of a perverse illogic by which CPS will fail to protect when there is a truly abusive parent (or boyfriend or relative) but will create nightmares for perfectly normal parents and children.
This case from Canada, which one would like to think couldn't happen in the U.S., is a fairly egregious example of judicial micromanagement: Judge Nicole Bernier (it would be a female judge!) ordered four children from a home schooling family into school and, in the case of children too young for school (down to age 3), into daycare so as to get what Judge Bernier calls "socialization." To add injury to injury, Bernier wants the children to go to public school so that they will be taught to read (or, as the case may be, not taught to read) by non-phonics methods!
Now, this is crazy. The parents have not been accused of abusing or neglecting their children. Judge B. (by whatever ill fate she was brought into these innocent people's lives) is just having a grand old time throwing around her weight and forcing them to raise their children as Judge B. would, presumably, raise her children. The notion of any sort of familial independence to make judgment calls about education is nowhere in the picture. (For the record, while I am a staunch advocate of phonics, I would consider laughable and pernicious the suggestion that some judge should interfere if parents were "caught" teaching their children to read by a look-say method.)
A sister organization to the Home School Legal Defense Association, ParentalRights.org, has one attempted solution--a parental rights amendment to the Constitution which provides that parental rights can be abrogated only if the government entity can demonstrate "that its governmental interest as applied to the person is of the highest order and not otherwise served." The Parental Rights organization argues that this will mean that parents must be shown to be unfit before their parental rights can be terminated. What, on this interpretation, it would chiefly restrain would be those many, many actions of CPS that lie in a grey zone between, on the one hand, simply leaving people alone to raise their own children and, on the other, actually making a case for termination of parental rights. In other words, no half measures. And CPS (and judges) love those half measures and that grey area, which give an enormous amount of power to the social workers and family courts without their actually having to prove anything against parents.
This is certainly a laudable goal on the part of ParentalRights.org, but I'm not absolutely certain that a constitutional amendment is the best way (or a complete way) to pursue it. For one thing, even if the amendment were passed, its impact upon concrete policy would remain exceedingly fuzzy and would have to be worked out in practice, with the many pitfalls that lie in the path of such an outworking. For example, what about emergency situations (or the claim thereof)? It's legitimate for some government entity to have the power to remove children, and state law does give CPS the power to do so, when there is an immediate, serious, and credible threat to the children's well-being. If there really is such a threat, such a removal cannot await the more rigorous determination of parental unfitness. Usually such a decision has to be made by a judge. It seems that this power would have to be left in place in any system, yet we want there to be redress if the power is abused. The parental rights amendment does not tell us how to deal with those issues. On the other hand, it seems not entirely implausible that courts would gut the amendment, adjudging state interests to be "of the highest order and not otherwise served" even when they were not.
In short, I think the parental rights amendment is not a bad idea, but we need creative legislative policy ideas for fixing the broken child and family law system, and the amendment will not change that.
Here are just a few ideas, to be carried out at the state level unless otherwise indicated:
--The legislature should create an explicit civil cause of action against social workers and judges for pain and suffering, including psychological suffering, caused by unjustified interference with parental rights.
--The legislature should set up a parental rights bureau to receive complaints and to assist parents in making civil claims under the above law.
--The legislature should set a time limit after which minors who have been removed from their parents must either be returned to parents' custody or else CPS must appeal the return to a judge by a report detailing the continuation of a credible and serious situation of danger to the child justifying the continued separation.
--The legislature should pass laws (we need suggestions for these) reining in the power of CPS to require such things as parenting classes, social worker visits, educational micromanaging, and other forms of interference in families where no immediate, serious danger to or neglect of the child has been argued in and affirmed by a court. In other words, if you are a fit parent and have custody, you have custody, and except in very unusual circumstances established by due process, you should be left alone.
--All laws granting medical confidentiality to minors (so that parents cannot/need not be told) for STD testing or treatment and receipt of birth control must be repealed.
--Some time ago I researched mandatory reporter laws in New York State. Though I no longer have the links, what I discovered astonished me: In New York State mandatory reporter statutes apply only to reports of suspected abuse by (or knowingly permitted by) parents! So if a teacher or doctor suspects abuse, he will consider that he is mandated to report it, but he must find a way to make such a report an accusation against parents. If the mandatory reporter suspects (or is even told by a child) that a public school teacher has abused him, for example, the mandatory reporter must either fail to report (which he may worry that he will be sued for) or else must find some way to spin it as something the parents "should have known about" and therefore as an accusation against the parents. If I have understood this legal situation aright, it is utterly insane and must be reversed immediately. Reports must be able to be made against non-parents, and this perverse incentive to blame innocent parents for abuse perpetrated by others must be removed. If this is the case in other states, it must be changed there as well.
Other ideas or intelligent criticism or modification of these ideas welcome.