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For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases — when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can be prosecuted rather than diverted, and when and for how long they may be incarcerated or kept on probation based on the specific offense alleged or adjudicated. These reforms are a sharp turn for juvenile law. Contrary to the field's long emphasis on discretionary decisions not legally tethered to specific offenses, the reforms depend on the charges alleged or proven against a child, and limit judges' authority at disposition and prosecutors' at intake. This Article fills a gap in the academic literature, which has previously focused on recent reforms to criminal, not juvenile, court sentencing of children. Recent juvenile court reforms prevent prosecutors and judges from using wide discretion to incarcerate children for petty offenses, follow social science research demonstrating how overly punitive actions undermine rehabilitative goals, and provide important checks and balances on what are often the most important decisions in individual cases. These juvenile court reforms also enhance the importance of plea bargaining, and thus risk creating the same harms as have been documented with plea bargaining in the criminal justice system. This Article argues that risk is mitigated by limitations on prosecutors' leverage and that future reforms should include further checks on that leverage.

This Article proposes that child welfare law permit the non-exclusive adoption of foster children who cannot reunify with their parents — that is, adoption by foster parents without severing children's legal relationships with their biological parents. Present law imposes a choice: extended family members or other foster parents may adopt foster children exclusively — and terminate the legal relationship between the child and biological parents — or they may become guardians — which preserves parent–child relationships but denies foster parents the legal title of "parent," even when they are long-term primary caretakers. Non-exclusive adoption would respect the lived reality of many foster children by legally recognizing all parents in their lives. Biological parents, even those who cannot reunify with their children, retain an important role for many foster children. Foster parents serve as functional parents and often see themselves, and are seen by children, as parents. Moreover, creating an additional legal path for foster children to leave foster care to new permanent families may help many children and families find legal options that minimize unnecessary litigation. Some courts and legislators have recognized multiple parenthood, especially for children conceived through assisted reproductive technology (ART) and raised by same-sex partners. Yet multiple parenthood faces a core challenge — multiplying the number of legally recognized parents can multiply legal conflicts over children. Non-exclusive adoption in child welfare has a compelling answer. Child welfare law's experience with guardianship demonstrates one field where multiple parenthood is less radical than it appears at first. It also demonstrates that the law can effectively allocate parental authority to avoid such conflicts by granting the adoptive parent legal and primary physical custody. While a hierarchy of parental rights raises equality concerns in ART cases, it is appropriate in child welfare cases which, by definition, involve ...

This Article will address several issues raised by Missouri's unusual juvenile court structure, arguing that the structure violates the Missouri Constitution's separation of powers clauses by placing prosecutorial discretion with-in the judicial branch. By granting juvenile officers, who are subject to judges' supervision, exclusive power to file child abuse and neglect and juvenile delinquency cases, Missouri law concentrates power into the hands of one branch of government. Missouri law thus empowers individual judges to set child welfare and juvenile justice policy by managerial decree. Subordinate judicial branch officials face pressure to file and litigate cases to please their boss, the judge, who hired them, supervises them, and has power to fire them. And the judge faces subtle pressure to rule in favor of his or her own employees, who are treated as first among equals in the courtroom. At the very least, the fact that the prosecuting staff and attorney work for the judge adjudicating the petition leads to an appearance of partiality to litigants. This Article will also discuss the anachronism that the juvenile officer's role represents. In child welfare cases, the juvenile officer's role has not evolved with the modern administrative state. Missouri was one of the first states to adopt a juvenile court, and the state simultaneously established the juvenile officer's role in the early 1900s, before the modern administrative state existed. When the modern administrative state developed in the 1930s, and especially when modern child welfare agencies developed in the 1960s and 1970s, the General Assembly charged the agency now known as the Children's Division with investigating allegations of child abuse and neglect and managing a complicated foster care system for children removed from their parents. Unlike legislatures in forty-seven other states plus the District of Columbia, the Missouri General Assembly has never given the Children's Division the authority to decide, in collaboration with executive ...

The Fourth Amendment "special needs" doctrine distinguishes between searches and seizures that serve the "normal need for law enforcement" and those that serve some other special need, excusing non-law-enforcement searches and seizures from the warrant and probable cause requirements. The United States Supreme Court has never justified drawing this bright line exclusively around law enforcement searches and seizures but not around those that threaten important noncriminal constitutional rights. Child protection investigations illustrate the problem: millions of times each year, state child protection authorities search families' homes and seize children for interviews about alleged maltreatment. Only a minority of these investigations involve suspected crimes, so most fall on the special needs side of the line. This result undervalues the consequences of child protection investigations on children (a severe infringement of their right to family integrity) and on parents (the loss of their children and the stigma of a child abuse or neglect charge). This Article proposes a new approach to the special needs doctrine: the doctrine should distinguish between searches and seizures that implicate fundamental constitutional rights and those that do not. It breaks new ground in identifying a theoretical value to such a bright line: it gives governments less incentive to interfere with liberty by seeking alternative means to achieve their goals. To realize this value most effectively, the line must be drawn to value all fundamental constitutional rights, not only those connected to the criminal justice system. In child protection, it would push states to choose less-liberty-infringing models of providing assistance to vulnerable families, which the empirical record shows would serve children and the child protection system's goals more effectively.

Abuse and neglect cases involve constantly changing facts. They "are unlike civil cases, which typically involve only facts gone by . The ultimate parties in interest are the [children] themselves. And for them, their lives are . ongoing event[s]." A child's need to return to his parent may ebb or flow. His parent's fitness may improve, regress, or remain the same. Federal law, followed in all states that wish to receive federal funds to support foster care, requires regular permanency hearings so family courts can make decisions based on evolving factual situations. These decisions, and the lack of greater procedural protections around them, are the focus of this Article. These decisions are important because they can set the course of children's life for years, if not their entire childhood. They are also designed to create the real-life facts that will lead to achieving the permanency plan chosen; thus, they shape the "ongoing events" that will become the factual basis of later termination of parental rights or other permanency trials. The absence of greater procedural protections in hundreds of thousands of abuse and neglect cases that reach this middle stage leads to poor decisions in abuse and neglect cases; creates unnecessary harm to children even when incorrect decisions are reversed later in a case; and, at least in some cases, violates the due process rights of parents and arguably of children. The federal government (which created the legal structure that states follow to obtain foster care funding), state legislatures that write laws governing abuse and neglect cases, and state courts adjudicating abuse and neglect cases should change child abuse and neglect laws to address these problems. Part I of this Article will outline existing due process protections in abuse and neglect cases, particularly those protections that exist between an initial adjudication of abuse or neglect and a final decree permanently affecting a child's relationship with his or her parent, including those protections required ...

Millions of American children are raised primarily by people other than their parents, mostly by grandparents and other kin, and millions more are raised by third parties for some period of their childhood. In most such situations, informal arrangements negotiated by family members and kinship networks effectively provide care for these children. Many cases, however, require some formal legal arrangement; third party custody orders are needed to obtain necessary services and benefits for children whose parents are absent, and to protect children in the rare but still significant instances in which a parent is abusive or neglectful. States currently have widely varying means of adjudicating child custody disputes between parents and third parties. One Supreme Court case, Troxel v. Granville, addresses contests between parents and third parties. While Troxel ruled for the parent in that particular case, it neither represents a strong parents' rights opinion nor does it provide states with clear guidance on how to shape third party custody statutes. This Article argues that states should enact child custody statutes according to three primary points. First, due to the wide range of situations in which a third party custody order may be necessary, states should permit a broad set of individuals to seek custody. Concerns that broad standing provisions would lead to a flood of meritless lawsuits are not borne out by actual data in states that have had nearly unlimited standing. Second, recognizing the constitutional primacy of the parent-child relationship, states should hold third parties to a high substantive standard, and require them to prove that parental custody would harm the child in some way. Any lesser standard — such as the best interests of the child standard applied in some states — insufficiently protects relationships between parents and children. Third, recognizing that the core parental right of the "care, custody and control" of a child is at stake, states should generally hold third parties to a ...

This essay presents one doctrinal method for lawyers to defend children accused of criminal charges in juvenile or adult court: attacking the applicability of the nearly twenty-year old case, New Jersey v. T.L.O. to most school searches. T.L.O. established a lower standard for searches of students by school officials, but it explicitly did not decide what standard the government must meet to justify school searches performed by police officers, creating a doctrinal starting point for advocates to raise challenges to searches involving police. More fundamentally, the T.L.O. Court based its decision on the presumption that firm gates separate public school from law enforcement and criminal justice institutions. Later administrative search cases inside and outside of the school context show that the lower standard of T.L.O. depends entirely on programmatic purposes that distinguish school systems and "ordinary law enforcement." Porous schoolhouse gates have allowed schools and law enforcement to become increasingly entangled. Police officers are stationed full-time in our schools; states, localities and school districts have set policies that require schools to turn children over to law enforcement; states have criminalized school-specific conduct; actions taken by schools can lead to violations of a student's probation order from juvenile court; and juvenile courts routinely share confidential information with schools. This excessive entanglement between schools and law enforcement makes T.L.O. inapplicable in a school where such entanglement exists. This conclusion would require the government to choose: either it can search students using a lower standard and prevent such searches from leading to law enforcement action or it can guarantee students the same civil rights in school that they have on the street. Either choice would be a significant improvement of our current situation where school searches deny children basic civil rights and widen the net of the juvenile and adult criminal justice systems. This ...

The antipathy of federal and state courts toward equal protection arguments in lawsuits challenging the public funding of education have forced education activists to search for alternative doctrinal hooks as they continue to seek reform in states' funding and management of schools. These activists have turned to state constitutions' education clauses, which impose duties on state governments to provide an "adequate" education for all children in the state. However, the art of defining and measuring an "adequate" education has advanced little beyond its state in 1973, when Justice Thurgood Marshall found the term unhelpful. In this Note, Josh Kagan surveys various means of defining and measuring adequacy used by state courts, including the use of existing legislative or executive standards, the use of future legislative or executive standards, a variety of educational outputs (such as standardized test scores), and educational inputs (such as quality of teachers, curricula, or school buildings). Applying scholars' theories of state constitutional interpretation and the history of state education clauses, Kagan argues that state courts should be aggressive in their use of educational inputs to define and measure educational adequacy. Unique factors of state governmental structure justify state court involvement in education policy questions that federal courts would consider inappropriate. These factors, coupled with the history of state education clauses, enable state courts to draw on a wide set of historical and current sources to define educational inputs required by state constitutions, and provide jurisprudential guidelines for this necessarily policy-laden analysis. Such an approach also encourages education activists to seek remedies other than reform to school financing systems; instead, activists can target states' provision of particular educational inputs.