A National Responsible Father Registry: Providing Constitutional Protections for Children, Mothers and Fathers

The United States Supreme Court initially acknowledged the right to raise children in 1923 when it held that the liberty interest referred to in the Fourteenth Amendment was “not merely freedom from bodily restraint but also the right of the individual to … establish a home and bring up children ….” Despite this well recognized right, many parents chose to place their children for adoption for a myriad of reasons.

Over the years, adoption in the United States has become more recognized, legally structured and more common. In fact, today every November is National Adoption Awareness Month. In many states, the Probate and Family Courts set a specific day as National Adoption Day and judges make a concerted effort to clear their dockets to finalize the adoption of children who have been in state foster care.

There is a voice in the adoption process that is often unheard. Often to the detriment of children, that voice belongs to the unknown or unnamed father. Many possible fathers are never given the opportunity to decide whether to parent their child or participate in the adoption planning. Why is this so? Quite simply, many states have no adequate process of notifying the father, or expectant father, other than the mother’s identification.

For instance, the Massachusetts statute states that for a possible father to preserve his rights, he must take action prior to the termination of the mother’s rights. The statute presupposes that the mother has identified the father and that he is aware of the mother’s pregnancy and adoption plan. If the father is not notified by the mother of her pregnancy and plan to adopt, the father’s rights to the child can be terminated before he ever knows they exist.

Consequently, the father is in the precarious position of relying upon the mother to have his voice heard. A solution to this problem is a National Responsible Father Registry (hereinafter “NRFR”). This is a confidential database where a possible father of a child to be born, or of a child who has been born out of wedlock, may file notice of intent to claim paternity within a prescribed time. A NRFR would protect the right of a possible father to receive notice of any proceedings involving paternity, termination of rights, or a pending or planned adoption of a child he may have fathered. The registry would also give him notice of the child entering into state custody. With the notice that a child has been born, the father may also come forward and assert his parental rights and the opportunity to parent his child.

A NRFR also relieves the mother of having to identity the father, should she not want to, for whatever reason. For example, she would not have to disclose to anyone that she did not know the father, or that she is afraid that disclosing the father’s identity will jeopardize her safety or that of the child. With an active and well thought-out NRFR, the mother will not circumvent the child’s or father’s parental rights, whether intentionally or unintentionally.

Having the father involved from the outset has many advantages for the child, including the possibility of an early adoption into a stable family environment. Gone will be the fear of adoptive parents that a father may show up later and disrupt the adoption. The placement will be a permanent one. Additionally, in situations where the father chooses to participate in the adoption process, more reliable medical history and other notable information will be available.

A NRFR does not compel a possible father to identify himself. It simply levels the playing field so a possible father may assert his parental rights to choose to be a father and take an active role in making decisions for the health, welfare and best interests of his child, without the father’s rights being obstructed. All of the participants who can and want to contribute to placing children in safe and loving homes deserve a voice in the process.

There are responsible father registries in at least 33 states. This article addresses the importance of establishing a NRFR which, by its very nature, will allow possible fathers to exercise their parental rights if a pregnancy and eventual birth results from sexual relations with a woman while balancing the constitutional rights of all those involved in the pregnancy. Part II of this Article will discuss the trends in adoption in the United States as well as the rise in state-run father registries. Part III will discuss the constitutional concerns presented in the absence of a NRFR, the constitutional challenges that the state-run father registries have confronted and the efforts that have been made to date to establish a NRFR. Part IV will conclude by discussing the need for a NRFR and the constitutional balance a NRFR provides among all those involved in the adoption proceeding.

Download (PDF, 268KB)

Writing for Teenagers in Foster Care about their Legal Rights

Teenagers in foster care need to know what rights they have. Writing for teenagers in foster care about those rights is, to say the least, challenging. The writer must be thoroughly familiar with the law, be succinct, and be deeply in touch with the gamut of emotional aspects of the lives of their audience. The successful writer cannot be judgmental or patronizing and must be keenly aware that teenagers are in constant motion – alternating between feeling vulnerable and invincible, inconsequential and essential. The perspective needs to be honest and real-life. It is no easy task to convey adult information and wisdom. It requires the writer artfully to get into the teenage mind and offer just the right combination of substance and style.

This article briefly identifies and reviews some of the recent legal materials written specifically for teenagers in foster care.

  1. Legal rights of teens in out-of-home care (January, 2011) Youth Law Center
  2. A teen’s legal guide to foster care in Oregon (2013) Youth, Rights & Justice
  3. Legal rights of teens in foster care (n.d.) The Children’s Aid Society
  4. Handbook for youth in foster care (2010) New York State Office of Children and Family Services
  5. Knowing your rights: A handbook for kids in foster care (2011) Children’s Law Center of Minnesota
  6. Handbook for youth in foster care (2012) Wisconsin Department of Children and Families
  7. Your rights, your life: A resource for youth in foster care (2011) Washington State Department of Social and Health Services Children’s Administration; The Mockingbird Society
  8. These, and other similar handbooks, introduce the teenage reader to their rights and responsibilities, as well as mentioning such things as the structure of the department, the fair hearing/grievance procedure, skills for daily living, and a list of helpful resources. In addition, there is discussion about legal terms, confidentiality, housing/independent living, employment, education, finances, and health care options. The length, style, and content of each of these manuals is affected by how it is intended to be used, and by the audiences it targets.

    The Audience

    Of the nearly 400,000 children in foster care on September 30, 2012, 20% were between the ages of 10 and 14; 20% were between the ages of 15 and 17, and 4% were 18 or over. However, during all of fiscal year 2012, a total of 23,439 youth turned 18, 19, or 20, and aged out of foster care.

    Children in Foster Care 2012

    The challenges of aging out of foster care are well-documented. Too often, those who exit foster care do so without the family and social networks that so many young people rely on, and are expected to make it on their own. See Hook, J., & Courtney, M. (2011). Employment outcomes of former foster youth as young adults: The importance of human, personal, and social capital. Children and Youth Services Review, 32(10), 1855-1865. Whether foster youth are just curious or are actually in the process of aging out of foster care, it is clear that good information about their own legal rights is critical to their well-being.

    Youth in Foster Care

    The Manuals

    The manuals reviewed here range in length from a simple two-page pamphlet (#3), to an 82-page, detailed handbook on various facets of foster youths’ lives (#4). Some seem geared toward younger audiences (#5, #6), some are more technical, focusing on the procedural details of the courts (#1, #2), while others strike a balance between readability and honesty about the difficult situations in which foster teens may find themselves (#4, #7).

    All address foster youths’ basic rights and needs: a contact caseworker, safety, medical care, school attendance, etc. Some include rights regarding quality of life – to be treated with dignity and respect, to be given fair rules, to be involved in major decisions about their own lives, etc.

    All provide helpful contacts and a space for other important numbers. Washington State’s booklet, among others, has a deeper level of interactivity. It is located on a website dedicated to independence for youth in foster care (independence.wa.gov). The website is an engaging tool that has videos, resource tabs, and easily accessible contacts where visitors can direct questions.

    Most of the manuals take a stance of encouraging self-advocacy, but also lay out the responsibilities of other professionals: social workers, lawyers, courts, foster families, etc. A manual’s tone may relate to how well these contacts and networks actually function on behalf of foster youth. For instance, New York’s handbook is divided into clear sections with titles like “Everyday Life”, “Big Questions”, and “Legal Issues”; it uses boxes to set off useful information, and it includes helpful quotes from other foster youth about their experiences of the system and of using the manual itself.

    Next Steps

    It would be helpful to hear from youth who have used these documents to see what worked for them. The Casey Young Adult Survey (2008) makes several recommendations for information emancipated youth might need upon exiting foster care. Some of the greatest needs identified were related but not exclusive to legal rights within the foster system, including creating a written transition plan; compiling a file of important personal documents and phone numbers; information about addiction and substance abuse; obtaining a high school diploma or GED; and, advocating for mental health services.

    In general, those resources that acknowledge each youth as a whole person seem to be most accessible and useful, in part because they communicate that someone really cares about that youth’s legal rights.


    Daniel Pollack, MSSA (MSW), JD is Professor, Wurzweiler School of Social Work, Yeshiva University, New York City, and is a frequent expert witness in child welfare cases. E-mail: href=”mailto:dpollack@yu.edu” target=”_blank”>dpollack@yu.edu; 212-960-0836.

    Kate Elias is a social worker and editor in Seattle, Washington, and currently works at a youth and community development non-profit agency.

    This article originally appeared in Policy & Practice, 72(3), 32-33.

School-Safety-Cover

Indicators of School Crime and Safety, 2013

by Rachel E. Morgan, Ph.D., BJS Statistician, Jana Kemp, Amy Rathbun, and Simone Robers, American Institutes for Research, Thomas D. Synder, National Center for Education Statistics

The Bureau of Justice Statistics, in collaboration with the National Center for Education Statistics, has released “Indicators of School Crime and Safety: 2013.” This annual report provides the most recent data on school crime and student safety. The indicators in this report are based on a variety data sources, including national surveys of students, teachers, principals, and postsecondary institutions.

This report contains 22 indicators of crime at school from a number of sources, including the National Crime Victimization Survey (NCVS), the School Crime Supplement to the NCVS, the Youth Risk Behavior Survey, the School Survey on Crime and Safety, and the School and Staffing Survey. Topics covered include victimization at school, teacher injury, bullying and cyber-bullying, school conditions, fights, weapons, availability and student use of drugs and alcohol, and student perceptions of personal safety at school.

Highlights:

  • In 2012, students ages 12 to 18 experienced about 1.4 million nonfatal victimizations at school, including 615,600 thefts and 749,200 violent victimizations.
  • The total nonfatal crime victimization rate of students ages 12 to 18 at school increased from 35 victimizations per 1,000 students in 2010 to 52 per 1,000 in 2012. The victimization rate away from school also increased, from 27 per 1,000 in 2010 to 38 per 1,000 in 2012.
  • Following nearly two decades of steady decline, the total nonfatal victimization rate at school was higher in 2012 (52 victimizations per 1,000 students) than in 2010 (35 per 1,000) for students ages 12 to 18. The victimization rate away from school was also higher in 2012 (38 victimizations per 1,000 students) than in 2010 (27 per 1,000).
  • During the 2009–10 school year, 85% of public schools recorded that one or more crime incidents had taken place at school, amounting to an estimated 1.9 million crimes. This translates to a rate of 40 crimes per 1,000 public school students enrolled in 2009–10.
  • In 2009–10, about 74% of public schools recorded one or more violent incidents of crime, 16% recorded one or more serious violent incidents, 44% recorded one or more thefts, and 68% recorded one or more other incidents.

To cite this product, use this link: http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5008

View and download the report here.

US Senate Seal

In Response to Recent Supreme Court Decision, Senators Hatch and Schumer to Introduce Bill to Strengthen the Law for Child Pornography Victims

Lawmakers Introducing the Amy and Vicky Child Pornography Victim Restitution Improvement Act to Strengthen Restitution Process for Victims

U.S. Senators Orrin Hatch (R-Utah), a current member and former Chairman of the Senate Judiciary Committee, and Chuck Schumer (D-N.Y.), current member of the Judiciary Committee, will introduce today the Amy and Vicky Child Pornography Victim Restitution Improvement Act today to create an effective, balanced restitution process for victims of child pornography that also responds to the Supreme Court’s decision in Paroline v. United States. Hatch and Schumer both signed onto a friend of the court brief in the Paroline case.  “Amy” and “Vicky” are the victims in two of the most widely-distributed child pornography series in the world.  The Amy and Vicky Act does three things that reflect the nature of these crimes: (1) it considers the total harm to the victim, including from individuals who may not yet have been identified; (2) it requires real and timely restitution; and, (3) it allows defendants who have contributed to the same victim’s harm to spread the restitution cost among themselves. The bipartisan legislation is cosponsored by Sens. John Cornyn (R-Tex.), Lindsey Graham (R-S.C.), Chuck Grassley (R-Iowa), Ed Markey (D-Mass.), John McCain (R-Ariz.), and Rob Portman (R-Ohio). 

“Victims of child pornography suffer a unique kind of harm and deserve a unique restitution process, and the Amy and Vicky Act is that solution,” Hatch said.  “In the Paroline decision, the Supreme Court made it clear that the ball was in Congress’ court in order to give child pornography victims the tools necessary to seek restitution from those responsible for perpetuating this heinous crime.  The Amy and Vicky Act is that solution. I’m proud to have the support of Amy, Vicky, and so many individuals and organizations who seek to work with Senator Schumer and me and other supporters of this bill to strengthen the voice of child pornography victims.”

“The tragic effect of the Supreme Court’s decision in Paroline was this:  the more widely viewed the pornographic image of a victim, and the more offenders there are, the more difficult it is for the victim to recover for her anguish and her damages,” said Schumer. “But there should not be safety in numbers.  Senator Hatch and I, and our other cosponsors, will work hard to make sure that victims of these most heinous of crimes get, at a minimum, what they are entitled to get – full restitution for the full harm caused by these terrible acts.” 

In a letter of support for the legislation introduced by Hatch and Schumer, Amy wrote that “After all this time and all the hearings and appeals and the Supreme Court, I definitely agree that restitution needs improvement and hopefully this bill, the Amy and Vicky Child Pornography Restitution Improvement Act of 2014, can finally make restitution happen for all victims of this horrible crime.” In a separate letter of support, Vicky wrote that “I sincerely hope that Congress will take the time to create some guidelines for restitution of child pornography possession and distribution that will protect the victim and enable them to receive full compensation.” 

Professor Paul Cassell, who argued the case for Amy before the Supreme Court for the University of Utah Appellate Clinic, said that “Victims of child pornography crimes deserve full restitution from criminals who have harmed them, and this bill will make sure that happens.”

A one-page summary of the legislation can be found here, and the bill text can be found here.

Amy’s Letter Supporting The Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014

“I am writing today to give my support to the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014. It is very important that this law get passed as soon as possible.”

“The past eight years of my life have been filled with hope and horror. Life was pretty horrible when I realized that the pictures of my childhood sex abuse were on the Internet for anyone and everyone to see. Imagine the worst most humiliating moments of your life captured for everyone to see forever. Then imagine that as a child you didn’t even really know what was happening to you and you didn’t want it to happen but you couldn’t stop it. You were abused, raped, and hurt and this is something that other people want. They enjoy it. They can’t stop collecting it and asking for it and trading it with other people. And it’s you. It’s your life and your pain that they are enjoying. And it never stops and you are helpless to do anything ever to stop it. That’s horror.”

“There was also hope. Hope in finding someone who could help me like my parents and my lawyer. And hope in meeting Joy, my psychologist, who was the first person who really understood what I was going through. Then I met Cindy, my therapist, who also really helped me with all the twists and turns with what I was feeling when I tried to make sense of my life and what had happened to me as a child and what is happening to me on the Internet. I felt lots of hope when my lawyer started collecting restitution to help me pay my bills and my therapist and for a car to drive to therapy and to just try to create some kind of ‘normal’ life. Things were getting better and better.”

“Then we started having problems with the restitution law. Judges sometimes gave me just $100 and sometimes nothing at all. A few judges really got it, like when I was at the Fifth Circuit oral argument two years ago and the judges agreed that the child sex abuse images of me really do cause ongoing and long-term harm. The article by Emily Bazelon in the New York Times also really helped to tell my story so that people can understand what it’s like to live with child pornography every day of your life. I was really happy to discover recently that her article received honorable mention in a contest recognizing excellence in journalism.”

“After a long time and a lot of court hearings all over the country, my case was finally at the Supreme Court. I couldn’t believe how long and how far my case and my story had gone until I was sitting there in the Supreme Court surrounded by so many of the people who have supported me and helped me during these years. To hear the justices discussing my case and my life was really overwhelming and gave me lots of hope not just for myself but for other victims like Vicky who I met for the first time right before the oral argument. I know there were other victims there too who are too afraid to speak out and too afraid to even think about what happened to them and what is happening to them online, on the Internet, because of their childhood sexual abuse and child pornography. I hoped that at last the very important people on the Supreme Court would decide that not just me, but all the victims like me—who were so young when all these horrible things happened to us—could get the restitution we need to try and live a life like everyone else.”

“All the justices were respectful and it was obvious that they had thought a lot about the issues. When the oral argument finished I was really hopeful that we would win the case. It felt good doing something this significant to make a difference in the world. It was a great feeling after so many years of just trying to get it right.”

“My hope turned to horror when the Court decided two weeks ago that restitution was impossible for victims like me and Vicky and so many others. I couldn’t believe that something which is called mandatory restitution (twice) was so hard to figure out. It just seemed like something somewhere was missing. Why, if so many people are committing this serious crime, why are the victims of that crime, who are and were children after all, left out? The Court’s decision was even worse than getting no restitution at all. It was sort of like getting negative restitution. It was a horrible day.”

“This is why I am so happy, and hopeful, that Congress can fix this problem once and for all. Maybe if they put mandatory in the law for a third time judges will get it that restitution really really really must be given to victims! After all this time and all the hearings and appeals and the Supreme Court, I definitely agree that restitution needs improvement and hopefully this bill, the Amy and Vicky Child Pornography Restitution Improvement Act of 2014, can finally make restitution happen for all victims of this horrible crime.”

“Thank you for supporting this law and working so hard to give victims the hope and help they need to overcome the nightmares and memories that most others will never know. Thank you Senator Hatch and Senator Schumer for making my hope real!”

Congress Acts – The Amy and Vicky Child Pornography Restitution Improvement Act

A federal statute (18 U.S.C. §2259) requires that, in child sexual exploitation cases, a defendant must pay restitution for “the full amount of the victim’s losses.” That works for crimes in which a defendant directly causes specific harm to a victim, but child pornography crimes are different. A child pornography victim is harmed by the initial abuse, then harmed by the distribution and possession of images of that abuse.

The Supreme Court has recognized that victims are harmed by the ongoing “trade” and “the continuing traffic” in child sex abuse images. “In a sense,” the Court said, “every viewing of child pornography is a repetition of the victim’s abuse.” On the Internet, that abuse never ends.

Each step in the child pornography process—production, distribution, and possession—increases the harm to a victim but makes it more difficult to identify those responsible. Victims of this kind of crime are especially in need of restitution to help put their lives back together. Meeting that challenge is the purpose of the Amy and Vicky Child Pornography Restitution Improvement Act of 2014.

“Amy” and “Vicky” are the victims in two of the most widely-distributed child pornography series in the world. On April 23, 2014, in Paroline v. United States, which reviewed Amy’s case, the Supreme Court found that the existing restitution statute is not suited for cases like theirs because it requires proving the impossible: how one person’s possession of particular images concretely harmed an individual victim. That standard puts the burden on victims to forever chase defendants and recover next to nothing.

The Amy and Vicky Act creates an effective, balanced mandatory restitution process for victims of child pornography that responds to the Supreme Court’s decision in Paroline v. United States. It does three things that reflect the nature of these crimes.

First, it considers the total harm to the victim, including from persons who may not yet have been identified.

Second, it requires real and timely restitution.

Third, it allows defendants who have contributed to the same victim’s harm to spread the restitution cost among themselves.

  • A victim’s losses include medical services, therapy, rehabilitation, transportation, child care, and lost income
  • If a victim was harmed by a single defendant, the defendant must pay full restitution for all her losses
  • If a victim was harmed by multiple individuals, including those not yet identified, a judge can impose restitution on an individual defendant in two ways depending on the circumstances of the case
    • the defendant must pay “the full amount of the victim’s losses” or, if less than the full amount,
    • at least $250,000 for production, $150,000 for distribution, or $25,000 for possession
  • Federal law already provides a mechanism for creating a restitution payment schedule
  • Multiple defendants who have harmed the same victim and have paid at least those minimum amounts are jointly and severally liable and may sue each other for contribution to equalize the restitution cost (the Supreme Court said in Paroline that this is important)

Those who continue a victim’s abuse should not be able to hide in the crowd; there should be no safety in numbers. Victims should not be abused again by putting the burden on them to prove the impossible. Instead, the Amy and Vicky Act creates a practical process, based on the unique kind of harm from child pornography, that both puts the burden on defendants where it belongs and provides actual and timely restitution for victims.

We expect that the Amy and Vicky Child Pornography Restitution Improvement Act will soon be introduced in the United States Senate with a companion bill in the House. Stay tuned for additional details on how you can support this important effort to ensure that all child pornography victims receive full and timely mandatory restitution.

Supreme Court Decision – Vicky’s Reaction

Like our client Amy, Vicky is a victim of child pornography. Vicky’s child sex abuse images and videos are some of the most widely-trafficked in the world. Vicky joined Amy in many of the cases leading up to the recent Supreme Court decision in United States v. Paroline et. al.. Amy and Vicky met for the first time on the evening before the Supreme Court oral argument in January 2014. Here is Vicky’s reaction to the Supreme Court’s decision:

I appreciate the Supreme Court’s recognition of the pain and loss suffered by victims and the need for mandatory restitution. This upholds both the victim’s need for compensation and helping the offender realize they have hurt an actual person. The difficult part of this decision is the immense amount of time and work investment that will be required by the victim to collect restitution, without the guarantee that they will ever collect the full amount to be made whole again. With each case in which the victim seeks restitution from someone who has possessed and/or distributed their images, there is an emotional cost just for being involved in the case. It brings up the painful reality of the victim’s situation of never-ending humilation and puts it right in the victim’s face once again.

This decision places on the victim the huge burden of several years of litigation without any promise of closure. This is a dismal prospect because it leaves victims like Amy and myself with the choice between not pursuing restitution (which would not provide us with the help we desperately need to heal) or continuing to have this painful part of our lives in our face on a regular basis for several more years, if not decades. Without any guidelines as to how the district courts will calculate restitution from each offender, I worry that the emotional toll may not be adequately compensated for in the end. I sincerely hope that Congress will take the time to create some guidelines for restitution for victims of child pornography possession and distribution that will protect the victim and enable them to receive full compensation.

Vicky is represented by Seattle lawyer Carol L. Hepburn who joined the Marsh Law Firm in a mutual five year effort seeking just and timely compensation for victims of child pornography.