Amicus Curiae Brief — Overcash v. Doe

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ra \ \ wil No. 97-79

In The

Supreme Court Of The United States

October Term, 1996

IN THE INTEREST OF: THE CHILDREN FOR WHOM

SANDRA OVERCASH IS GUARDIAN AD LITEM

Petitioner

Vv.

MR. DOE AND MRS. DOE

Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF

SOUTH CAROLINA

MOTION FOR LEAVE TO FILE AMICUS BRIEF

AND BRIEF OF AMICI CURIAE:

ALLIANCE FOR THE RIGHTS OF CHILDREN (ARCH),

ALLIANCE FOR SOUTH CAROLINA’S CHILDREN,

CHILD, INC., CHILD ABUSE FORENSIC INSTITUTE,

ECLIPSE, JOINING TOGETHER TO STOP SEXUAL

ABUSE, JUSTICE FOR CHILDREN, MARILYN VAN

DERBUR INSTITUTE, INC., MOTHERS AGAINST

SEXUAL ABUSE (MASA),

(AMICUS CURIAE CONTINUED ON NEXT PAGE)

IN SUPPORT OF THE PETITIONER

Counsel for Amici Curiae

Eugene Falco, Esq.

45 Church Street

P.O. Box 625

New Hartford, CT 06057

(860) 379-7487

(LIST OF AMICI CURIAE, CONTINUED)

NATIONAL ASSOCIATION OF COUNSEL FOR

CHILDREN, NATIONAL COMMITTEE FOR THE RIGHTS

OF THE CHILD, NATIONAL COURT APPOINTED

SPECIAL ADVOCATE ASSOCIATION (CASA),

NATIONAL TASK FORCE ON CHILDREN’S

CONSTITUTIONAL RIGHTS, NATIONAL VICTIM

CENTER, ONE VOICE/AMERICAN COALITION ON

ABUSE AWARENESS (ACAA), SURVIVORS AND

VICTIMS EMPOWERED (SAVE), SOUTH CAROLINA

COALITION AGAINST DOMESTIC VIOLENCE &

SEXUAL ASSAULT, SOUTH CAROLINA EDUCATIONAL

RESOURCE CENTER FOR MISSING AND EXPLOITED

CHILDREN, SOUTH CAROLINA NURSES ASSOCIATION

IN SUPPORT OF PETITIONER

MOTION FOR LEAVE TO FILE AMICUS BRIEF IN

SUPPORT OF PETITION FOR WRIT OF CERTIORARI

I. INTRODUCTION

The ruling of the court below and its resolution profoundly

effects the diverse legal interests of the many children in this nation,

including those of which are victims and alleged victims of physical

abuse, sexual abuse, neglect and mental injury. The amici are in a

position to present the issues in a broader and different perspective

than the parties to this action.

The Petitioner consents to the filing of this amicus brief. The

Respondents have withheld consent, necessitating this motion.

Il. IDENTITY AND INTERESTS OF AMICI CURIAE

1) Alliance for the Rights of Children (ARCH), based in

Virginia, is-an incorporated nonprofit child advocacy organization

dedicated to the protection of children from sexual abuse through

public education and advocating for changes in public policy. ARCH

is keenly aware of the system failures which can occur in instances

where abuse occurs in the family. Its President is Glennie Rohelier.

2) Alliance for South Carolina’s Children, based in Columbia,

South Carolina is an independent, nonprofit, multi-issue child

advocacy organization. The Alliance conducts research, offers

community programs, distributes an annual “KIDS COUNT” report,

supports legislation to protect children, and promotes increased

public awareness of issues affecting children and families. Its

President is John S. Niblock.

3) CHILD, Inc., also known as Children’s Healthcare Is a Legal

Duty, Inc. is a tax-exempt national membership organization

founded in 1983 and based in Sioux City, lowa. With a board of

directors comprised of medical doctors, mental health professionals,

attorneys and business people, Child, Inc. promotes the

constitutional rights of children and maintains that child abuse and

neglect violates children’s constitutional rights. Its President is Rita

Swan, Ph.D.

4) Child Abuse Forensic Institute, Inc. (CAFID), based in Napa,

California, assists child abuse victims, accused abusers and

governmental agencies in the development, investigation and/or

litigation of child abuse cases and trains and educates the general

public and professionals regarding child abuse allegations. CAFI also

provides professional forensic services in cases in which child abuse

has been alleged. Its Executive Director and legal counsel is Seth

Goldstein, Esq.

5) ECLIPSE (Emancipating Children from Legal Injustice,

Pornography & Sexual Exploitation), based in South Carolina, is

a national nonprofit corporation which provides legal, investigative

and other professional assistance in severe cases of child abuse and

trauma. ECLIPSE has an interest in representing the interests of

child victims of severe child abuse, sexual abuse and trauma. Its

President is Robert L. Millard.

6) Joining Together to Stop Sexual Abuse (JTSA), is a nonprofit

organization based in Cleveland, Ohio and founded in 1993 through

the combined efforts of attorneys, social workers, mental health care

professionals, educators, adult survivors of child sexual abuse and

concerned citizens dedicated to eradicating sexual abuse, proactively

preventing child sexual abuse, and countering the effects of the

backlash against survivors and child advocates. JTSA’s Board

President is Rhonda F. Day, MSSW.

7) Justice For Children ("JFC") is a national child advocacy

organization headquartered in Houston, Texas. Formed in 1987,

JFC advocates the interests of abused and neglected children whose

cases have been lost in the child welfare, family court, and/or

criminal justice systems. JFC has an interest in more fully presenting

the impact of the lower court’s decision on all child victims of

physical abuse, sexual abuse, and neglect. JFC's president and legal

counsel is Randy Burton, Esq.

8) Marilyn Van Derbur Institute, Inc. ("MVDI"), based in

Denver, Colorado, was founded by spokesperson and 1958 Miss

America Marilyn Van Derbur. Ms. Van Derbur, also a co-founder

of One Voice, repressed her memories as an incest survivor until age

24 and has spoken publicly in an effort to stop the sexual exploitation

of children. MVDI has an interest in the petition by more fully

presenting to the court the subject matter of child sexual abuse as it

relates to the legal issues in this case.

9) Mothers Against Sexual Abuse ("MASA"), based in

Monrovia, California, is a national non-profit organization founded

for purposes of educating society on the occurrence and debilitating

effects of child abuse, supporting legislation to protect children, and

providing resources for victims and families. MASA has an interest

on RR

in more fully representing the legal interests of child victims of

sexual, physical and emotional abuse. Its president and founder is

Claire R. Reeves.

10) National Association of Counsel For Children (NACC),

located in Denver Colorado, was founded in 1977 to promote quality

representation for children in the legal system. The NACC’s mission

is to improve the legal protection and representation of children by

training and educating child advocates and by effecting policy and

legal system improvements. With a membership of attorneys and

judges, as well as representatives from the fields of medicine, mental

health, social work and education, NACC interest in this case is

enhancing the well-being and protecting the legal rights of children

nationwide. NACC’s Executive Director is Marvin Ventrell, J.D.

11) National Court Appointed Special Advocate Association

(CASA), based in Seattle, Washington is the national membership

Organization, and technical assistance and training provider for

volunteer CASA and Guardian ad Litem programs throughout the

United States, networking almost 700 programs in all fifty states.

National CASA advocates the best interests of abused and neglected

children in the courts, promotes quality volunteer representation for

children, and seeks to provide each child a safe, permanent and

nurturing home.

12) National Committee on the Rights of the Child works to

improve the legal status of children by undertaking carefully selected

precedent-setting litigation aimed at establishing the constitutional

and legal rights of children. One of its fundamental purposes is to

end the denial to children of constitutional procedural rights, with the

goal of establishing the right of children to access to courts to protect

themselves in every significant way. Dedicated to establishing that

children are “persons” under the United States Constitution and

entitled to the fundamental protective rights contained in the Bill of

Rights, NCRC has an interest in the petition by more fully

presenting to the Court the need to recognize the constitutional rights

of children. Its President is Ted Steege.

13) National Task Force for Children’s Constitutional Rights

was founded in 1988 by Connecticut Superior Court Judge Charles

D. Gill and Dr. Anne Burgess of the University of Pennsylvania.

The Task Force is a multi-disciplinary organization with membership

in fifty states and has appeared as amicus curiae in appeals in state

and federal courts where the constitutional rights and interests of

children are at stake. The Task Force has an interest in more fully

demonstrating to this court the need for granting review in this case

to decide issues of compelling public importance involving the

constitutional rights of children.

14) National Victim Center ("NVC"), a nonprofit organization

based in greater Washington, D.C., is a leading advocate for victims

of violence. NVC promotes the responsiveness of the criminal and

civil justice systems to the rights and needs of crime victims, and

works to increase public awareness concerning their plight. NVC has

been the pioneer in advocating the restorative justice for crime

victims through the civil justice process.

15) One Voice/ACAA ("One Voice"), based in Washington,

D.C., is a national non-profit organization formed to improve the

quality of life for children and adult survivors of incest, sexual

abuse, and physical and emotional abuse, through public education,

advancements in law, justice and public policy. One Voice has an

interest in assuring that the issues relating to child abuse, incest and

sexual abuse can be more fully presented. American Coalition For

Abuse Awareness ("ACAA"), is the public policy project of One

Voice. One Voice/ACCA's president is Sherry Quirk, Esq.

16) Survivors And Victims Empowered ("SAVE"), based in

Pennsylvania, is a nonprofit organization formed to prevent the

criminal neglect and physical, emotional and sexual abuse of

children and assists adult survivors of childhood trauma. SAVE has

an interest in more fully presenting the impact of the lower court’s

decision upon child victims of physical abuse, sexual abuse and

neglect. Its executive director is L. Philip Sheldon, Jr.

17) South Carolina Coalition Against Domestic Violence &

Sexual Assault, based in Columbia, South Carolina and formed in

1981, is a state-wide organization which monitors and influences

policy and legislation on domestic violence and sexual assault issues,

and promotes awareness of the prevalence of family violence against

children, women and men. Its Executive Director is Susan

Higginbotham.

18) South Carolina Educational Resource Center For Missing

and Exploited Children, based in Greenville, South Carolina, and

founded in 1984, provides a centralized training and referral service

addressing missing and exploited children and related family issues.

The Center has an interest in protecting exploited children in the

state of South Carolina.

19) South Carolina Nurses Association, is a constituent member

of the American Nurses Association based in Columbia, South

Carolina. It is a membership organization comprised of registered

nurses, to support professional goals and responsibility in the field

of nursing for registered nurses and serves as an advocate for the

interests of nursing patients and clients.

Ill. ARGUMENT ON THE MOTION

The prevalence of child abuse, child sexual abuse, and

neglect in this country is astounding and worsening. Last year, the

U.S. Department of Health and Human Services reported that an

estimated 3 million American children were abused or neglected,

twice as many as five years earlier. Proclamation No. 6981, 62 Fed.

Reg. 16035 (1997). Almost half a million of our nation’s children

were seriously injured due to child abuse and neglect, quadruple the

number of the previous year. Our president has declared that “we

must not let this senseless suffering continue”. Jd.

The nineteen amici curiae are all committed to protecting the

rights of children and preventing child abuse. Without the

commitment, knowledge and assistance of these organizations, many

more children would find themselves victims of physical abuse,

sexual abuse and neglect. The expertise of the amici in the areas of

children's law, children’s constitutional rights, and the subject matter

of child abuse will provide the Court with a much broader

perspective of the issues raised in the petition. It is respectfully

requested that this Court grant the request of the amici for leave to

file the annexed amicus brief.

THE AMICI CURIAE

Eugene Falco, Esq.

45 Church Street

P.O. Box 625

New Hartford, CT 06057-0625

Tel no. 860-379-7487

Counsel for Amici Curiae

i

No. 97-79

In The

Supreme Court Of The United States

October Term, 1996

IN THE INTEREST OF: THE CHILDREN FOR WHOM

SANDRA OVERCASH IS GUARDIAN AD LITEM

Petitioner

V.

MR. DOE AND MRS. DOE

Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF

SOUTH CAROLINA

BRIEF OF AMICI CURIAE:

ALLIANCE FOR THE RIGHTS OF CHILDREN (ARCH),

ALLIANCE FOR SOUTH CAROLINA’S CHILDREN,

CHILD, INC., CHILD ABUSE FORENSIC INSTITUTE,

ECLIPSE, JOINING TOGETHER TO STOP SEXUAL

ABUSE, JUSTICE FOR CHILDREN,

MARILYN VAN DERBUR INSTITUTE, INC., MOTHERS

AGAINST SEXUAL ABUSE (MASA),

(AMICUS CURIAE CONTINUED ON NEXT PAGE}

IN SUPPORT OF THE PETITIONER

Counsel for Amici Curiae

Eugene Falco, Esq.

45 Church Street

P.O. Box 625

New Hartford, CT 06057

(860) 379-7487

(LIST OF AMICI CURIAE, CONTINUED)

NATIONAL ASSOCIATION OF COUNSEL FOR

CHILDREN, NATIONAL COMMITTEE FOR THE RIGHTS

OF THE CHILD, NATIONAL COURT APPOINTED

SPECIAL ADOVOCATES ASSOCIATION (CASA),

NATIONAL TASK FORCE ON CHILDREN’S

CONSTITUTIONAL RIGHTS, NATIONAL VICTIM

CENTER, ONE VOICE/AMERICAN COALITION ON

ABUSE AWARENESS (ACAA), SURVIVORS AND

VICTIMS EMPOWERED (SAVE), SOUTH CAROLINA

COALITION AGAINST DOMESTIC VIOLENCE &

SEXUAL ASSAULT, SOUTH CAROLINA EDUCATIONAL

RESOURCE CENTER FOR MISSING AND EXPLOITED

CHILDREN, SOUTH CAROLINA NURSES ASSOCIATION

IN SUPPORT OF PETITIONER

QUESTIONS PRESENTED FOR REVIEW

[. Whether the Equal Protection and Due Process

Clauses of the 14th Amendment prohibit appellate courts

from remanding protective custody cases on the basis of

staleness simply because time has elapsed while on appeal?

IT. Whether children in protective custody cases are

constitutionally entitled to meaningful appellate review of a

judicial bias claim under the equal protection and due

process clauses of the 14th amendment?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW I

TABLE OF CONTENTS il

TABLE OF AUTHORITIES il

IDENTITY AND INTERESTS OF THE I

AMICI CURIAE

INTRODUCTION AND SUMMARY 6

OF THE ARGUMENT

ARGUMENT

I. THE ISSUES PRESENTED BY THIS CASE

ARE OF CRITICAL IMPORTANCE

TO CHILDREN 9

Il. CHILDREN HAVE A FUNDAMENTAL

RIGHT TO MEANINGFUL APPELLATE

REVIEW OF THEIR CLAIMS OF

JUDICIAL BIAS NOTWITHSTANDING

ISSUES OF STALENESS CAUSED BY

THE APPELLATE PROCESS ITSELF 11

CONCLUSION 19

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION

Article IV

First Amendment

Fourteenth Amendment

STATUTES |

S.C. Code Ann. §20-7-736 (1976)

FEDERAL CASES

Bradwell v. Illinois, 16 Wall. 130 (1872)

Bellotte v. Baird, 443 U.S. 622.6438

Certain Named and Unnamed Non-Citizen

Children and Their Parents v.

Texas, 448 U.S. 1327 (1980)

City of Cleburne Tex. v. Cleburne Living Ctr.,

Inc., 473 U.S. 432 (1985)

Cruzan v. Director, Mo. Dept. of Health,

497 U.S. 261 (1990)

Dred Scott v. Sanford, 19 How. 393 (1857)

Eastway Construction Corp. v. New York,

637 F. Supp. 558 (E.D.N.Y.)

18

14

,

Hammer v. Dagenhart, 247 U.S. 251 (1918) 14

In re Gault, 387 US 1 (1967) 11, 12

Meyer v. Nebraska, 262 U.S. 390 (1923) 13, 14

Parham v. J.R., 442 U.S. 584 (1978) 15

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 13, 14

Planned Parenthood v Danforth,

428 U.S. 52 (1976) y

Plyer v. Doe, 457 U.S. 202, 218, n.14 (1982) 8

Prince v. Massachusetts, 321 U.S. 158 (1944) 14

Ryland v. Shapiro, 708 F.2d 967

(Sth Cir. 1983), cert. denied,

474 U.S. 1032 (1985) 10

Taylor v. Ledbetter, 818 F.2d 791

(11th Cir. 1987) 16

Tinker v. Des Moines School District,

393 U.S. 503 (1969) 12

Trop v. Dulles, 356 U.S. 86 (1958) 15

STATE CASES

Aiken County DSS v. Wilcox, 304S.C. __,

403 S.E.2d 142 (Ct. App 1991) 7

Davis v Davis, 842 S.W.2d 588 (Tenn. 1992) 13

iv

Horton v. Vaughn, _ S.C. __,

423 S.E.2d 543 (Ct. App. 1992) 7

Matter of Marriage of Ross, 783 P.2d 331

(Kan. 1989) 14

S.C. DSS v. Forrester, 282 S.C. 512,

320 S.E.2d 39 (Ct. App 1984) 7

OTHER SOURCES

H. Boswell, The Life of Johnson,

p. 47 (Hill ed. 1887) 6,7

Cohen, Relationships Between the Child,

the Family, and the State, in Perspectives on

The Family 293 (M. Bayles, R. Moffit & J.

Greie, eds. 1990) 18

Elder, Parental Power Legitimation and

Its Effect on the Adolescent, reprinted inGoldstein

and Katz, The Family and the Law, 980 (1965) 17

James K. Genden, Separate Legal Representation

for Children: Protecting the Rights and Interests of

Minors in Judicial Proceedings, 11 Harv. C.R.C.L.

Law Rev. 565 (1976) 15

Charles D. Gill, Essay on the Status of the

American Child 2000 A.D.: Chattel or

Constitutionally Protected Child-Citizen?.

17 Ohio Northern L. Rev. 543 (1991) 12

Joseph Goldstein, Albert J. Solnit, Sonya

Goldstein & Anna Freud, The Best Interests of the

Child: The Least Detrimental Alternative (1996) 12

Stuart N. Hart, From Property to Person

Status: Historical Perspective on Children's

Rights, 46 Am. Psychologist 53 (Jan. 1991) 19

Dennis P. Ichikawa, An Argument on Behalf of

Children, 2 Child Maltreatment 202 (Aug. 1997) 19

Robert H. Mnookin, Child, Family

and State (1978) 18

Hillary Rodham, Children Under the Law,

43 Harv. Educ. Rev. 487 (1973) 8

Tremper, Respect for the Human Dignity of

Minors, 39 Syracuse L. Rev. 1335 10

Laurence Tribe, American Constitutional

Law 2d ed. (1988) 10

Barbara B. Woodhouse, "Who Owns the Child?"

Meyer and Pierce and the Child as Property,

33 William & Mary L. Rev. 995 (1992) 14

vi

BRIEF OF AMICUS CURIAE

IDENTITY AND INTERESTS OF AMICI CURIAE’

1) Alliance for the Rights of Children (ARCH), based in

Virginia, is an incorporated nonprofit child advocacy

organization dedicated to the protection of children from

sexual abuse through public education and advocating for

changes in public policy. ARCH is keenly aware of the

system failures which can occur in instances where abuse

occurs in the family. Its President is Glennie Rohelier.

2) Alliance for South Carolina’s Children, based in

Columbia, South Carolina is an independent, nonprofit,

multi-issue child advocacy organization. The Alliance

conducts research, offers community programs, distributes

an annual “KIDS COUNT” report, supports legislation to

protect children and promotes increased public awareness of

issues affecting children and families. Its President is John S.

Niblock.

3) CHILD, Inc., also known as Children’s Healthcare Is

a Legal Duty, Inc. is a tax-exempt national membership

organization founded in 1983 and based in Sioux City, lowa.

With a board of directors comprised of medical doctors,

1. In accordance with Rule 37.6, counsel for amici represents

that: he alone authored the argument portion of this brief

without any monetary compensation or reimbursement

whatsoever; attorney Helen L. McGonigle prepared the

paragraphs describing the identity and interests of the amici

curiae; and amicus ECLIPSE provided a monetary contribution

towards the printing costs for this brief.

1

mental health professionals, attorneys and business people,

Child, Inc. promotes the constitutional rights of children and

maintains that child abuse and neglect violates children’s

constitutional rights. Its President is Rita Swan, Ph.D.

4) Child Abuse Forensic Institute, Inc. (CAFI), is a

nonprofit organization based in Napa, California, assists

child abuse victims, accused abusers and governmental

agencies in the development, investigation and/or litigation

of child abuse cases and trains and educates the general

public and professionals regarding child abuse allegations.

CAF'I provides professional forensic services in cases where

child abuse has been alleged. Its Executive Director and legal

counsel is Seth Goldstein, Esq.

5) ECLIPSE (Emancipating Children from Legal

Injustice, Pornography & Sexual Exploitation), based in

South Carolina, is a national nonprofit corporation which

provides legal, investigative and other professional assistance

in severe cases of child abuse and trauma. ECLIPSE has an

interest in representing the interests of child victims of severe

child abuse, sexual abuse and trauma. Its President is Robert

L. Millard.

6) Joining Together to Stop Sexual Abuse (JTSA), is a

nonprofit organization based in Cleveland, Ohio and founded

in 1993 through the combined efforts of attorneys, social

workers, mental health care professionals, educators, adult

survivors Of child sexual abuse and concerned citizens

dedicated to eradicating sexual abuse, proactively preventing

child sexual abuse, and countering the effects of the backlash

against survivors and child advocates. JTSA’s Board

President is Rhonda F. Day, MSSW.

7) Justice For Children ("JFC") is a national child

advocacy organization headquartered in Houston, Texas.

Formed in 1987, JFC advocates the interests of abused and

neglected children whose cases have been lost in the child

welfare, family court, and/or criminal justice systems. JFC

has an interest in more fully presenting the impact of the

lower court’s decision on all child victims of physical abuse,

sexual abuse and neglect, nationwide. JFC's president and

legal counsel is Randy Burton, Esq.

8) Marilyn Van Derbur Institute, Inc. ("MVDI"), based

in Denver, Colorado, was founded by spokesperson and

1958 Miss America Marilyn Van Derbur. Ms. Van Derbur,

also a co-founder of One Voice, repressed her memories as

an incest survivor until age 24 and has spoken publicly in an

effort to stop the sexual exploitation of children. MVDI has

an interest in more fully presenting the subject matter of

child sexual abuse as it relates to the legal issues in this case.~

9) Mothers Against Sexual Abuse ("MASA"), based in

Monrovia, California, is a national non-profit organization

founded for purposes of educating society on the occurrence

and debilitating effects of child abuse, supporting legislation

to protect children, and providing resources for victims and

families. MASA has an interest in more fully representing

the legal interests of child victims and alleged victims of

sexual, physical and emotional abuse. Its president and

founder is Ciaire R. Reeves.

10) National Association of Counsel For Children

(NACC), located in Denver Colorado, was founded in 1977

to promote quality representation for children in the legal

system. The NACC’s mission, is to improve the legal

protection and representation of children by training and

educating child advocates and by effecting policy and legal

system improvements. With a membership of attorneys and

judges, as well as representatives from the fields of

medicine, mental health, social work and education,

NACC’s interest in this case is enhancing the well-being and

protecting the legal rights of children nationwide. NACC’s

Executive Director is Marvin Ventrell, J.D.

11) National Court Appointed Special Advocate

Association (CASA), based in Seattle, Washington is the

national membership organization, and technical assistance

and training provider for volunteer CASA and Guardian ad

Litem programs throughout the United States, networking

almost 700 programs in all fifty states. National CASA

advocates the best interests of abused and neglected children

in the courts, promotes quality volunteer representation for

children and seeks to provide each child a safe, permanent

and nurturing home.

12) National Committee on the Rights of the Child

works to improve the legal status of children by undertaking

carefully selected precedent-setting litigation aimed at

establishing the constitutional and legal rights of children.

One of its fundamental purposes is to end the denial to

children of constitutional procedural rights, with the goal of

establishing the right of children to access to courts to protect

themselves in every significant way. Dedicated to

establishing that children are “persons” under the United

States Constitution and entitled to the fundamental protective |

rights contained in the Bill of Rights, NCRC has an interest

in the petition by more fully presenting to the Court the need

to recognize the constitutional rights of children. Its

President is Ted Steege.

13) National Task Force for Children’s Constitutional

Rights was founded in 1988 by Connecticut Superior Court

Judge Charles D. Gill and Dr. Anne Burgess of the

University of Pennsylvania. The Task Force is a multi-

disciplinary organization with membership in fifty states and

has appeared as amicus curiae in appeals in state and federal

courts where the constitutional rights and interests of

children are at stake. The Task Force has an interest in more

fully demonstrating to this court the need for granting

review in this case to decide issues of compelling public

importance involving the constitutional rights of children.

14) National Victim Center ("NVC"), a nonprofit

organization based in greater Washington, D.C., is a leading

advocate for victims of violence. NVC promotes the

responsiveness of the criminal and civil justice systems to the

rights and needs of crime victims, and works to increase

public awareness concerning their plight. NVC has been the

pioneer in advocating the restorative justice for crime victims

through the civil justice process. NVC has an interest in the

petition by representing the interests of the many victims of

incest, rape and other violence.

15) One Voice/ACAA ("One Voice"), based in

Washington, D.C., is a national non-profit organization

formed to improve the quality of life for children and adult

survivors of incest, sexual abuse, and physical and emotional

abuse, through public education, advancements in law,

justice and public policy. One Voice has an interest in

assuring that the issues relating to child abuse, incest and

sexual abuse can be more fully presented. American

Coalition For Abuse Awareness ("ACAA"), is the public

policy project of One Voice. One Voice/ACCA's president

is Sherry Quirk, Esq.

16) Survivors And Victims Empowered ("SAVE"),

based in Pennsylvania, is a nonprofit organization formed to

prevent the criminal neglect and physical, emotional and

sexual abuse of children and assists adult survivors of

childhood trauma. SAVE has an interest in more fully

presenting the impact of the lower court’s decision upon

child victims of physical abuse, sexual abuse, emotional

abuse, and neglect. Its executive director is L. Philip

Sheldon, Jr.

17) South Carolina Coalition Against Domestic Violence

& Sexual Assault, based in Columbia, South Carolina and

formed in 1981, is a state-wide organization which monitors

and influences policy and legislation on domestic violence

and sexual assault issues, and promotes awareness of the

prevalence of family violence against children, women and

men. Its Executive Director is Susan Higginbotham.

18) South Carolina Educational Resource Center For

Missing and Exploited Children, based in Greenville,

South Carolina, and founded in 1984, provides a centralized

training and referral service addressing missing and exploited

children and related family issues. The Center has an

interest in protecting exploited children in the state of South

Carolina.

19) South Carolina Nurses Association, is a constituent

member of the American Nurses Association based in

Columbia, South Carolina. It is a membership organization

comprised of registered nurses to support professional goals

and responsibility in the field of nursing for registered nurses

and also serves as an advocate for the interests of nursing

patients and clients.

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

When Boswell questioned support for a cause which

one knows to be bad, Dr. Johnson replied:

Sir, you do not know it to be good or bad till the

Judge determines it. I have said that you are to state facts

fairly; so that your thinking, or what you call knowing, a

cause to be bad must be from reasoning, must be from

Supposing your arguments to be weak and _ inconclusive.

But, Sir, that is not enough. An argument which does not

convince yourself, may convince the Judge to whom you

urge it: and if it does convince him, why, then, Sir, you are

wrong and he is right. H. Boswell, The Life of Johnson, p.

47 (Hill ed. 1887).

In the present action, the petitioner on behalf of the

children for whom she is guardian ad litem seeks to have

this court require that the South Carolina Supreme Court

review the children's claim of judicial bias instead of

remanding the underlying case to the same judge against

whom the children lodge their allegation of bias. Amici

support this claim for relief, in the interest of these children

and others similarly situated, to subject the factual

determinations underlying the trial judge's decision to the

crucible of meaningful appellate review.

South Carolina requires that the department of social

services prove a case of abuse and neglect of children by a

preponderance of the evidence. $.C. Code Ann. 20-7-736

(1976); Aiken County DSS v. Wilcox, 304 S.C. __, 403

S.E.2d 142 (Ct. App 1991). Unlike Johnson's England,

South Carolina grants broad discretion for its appellate courts

to find facts based upon the reviewing court's own view of

the evidence presented. See Horton v. Vaughn, _ S.C.

___, 423 S.E.2d 543 (Ct. App. 1992): Aiken County DSS

v. Wilcox, supra; S.C. DSS v. Forrester, 282 S.C. 512. 320

S.E.2d 39 (Ct. App 1984). Under South Carolina law, the

children are not necessarily "wrong" and the judge "right".

Although the South Carolina Court of Appeals

acknowledged that: "the record reflects much evidence

Supporting physical and sexual abuse had the Family Court

made such a finding"; Petition App. 7A; and expressed its

concern about parental neglect and the children's "disturbing

familiarity with sexual matters beyond their years"; Petition

App. 8A; and, the South Carolina Supreme Court expressed

its concern "about the disturbing evidence presented at

trial"; Petition App. 3A; neither court exercised its authority

and responsibility to provide the children with meaningful

appellate review of their claims.

This Court has indicated that special vigilance is

necessary when the victims of a _ discriminatory

governmental practice are children, who have no

representation in the government’. See Plyler v. Doe, 457

U.S. 202, 218, n. 14 (1982); (Bellotte v. Baird, 443 U.S.

662, 643 (plurality opinion) (concluding that states may not

impose undue burdens on minor's exercise of constitutional

rights).

The courts of South Carolina have ignored the rights

of these children to meaningful appellate review of facts

found by a trial judge whom their guardian claims showed

egregious bias. The trial judge made findings of fact;

2. Children do not hold office, cannot vote, and possess no

other direct access to government and political institutions that

formulate public policy. First Lady Hillary Rodham Clinton

wrote: “Lacking even the basic power to vote, children are not

able to exercise normal constituency powers, articulating self-

interests to politicians and working toward specific goals... The

causes of younger children have not fared well, partly because

these representatives [that children must rely on to speak for

them] have loyalties diluted by conflicts between children’s

rights and their own institutional and professional goals.”

Hillary Rodman, Children Under the Law, 43 Harv. Educ.

Rev. 487 (1973). Accordingly, children depend upon the courts

to recognize and protect their basic rights. A lack of bias is an

essential prerequisite of such protection.

8

Petition App. 19A-24A; that the petitioner illustrates

contradicted the content and weight of the evidence at trial:

Petition pp. 5-8. Moreover, the trial judge demonstrated on

the record his bias by remarking that: "{t]his court must be

cognizant of the inherent unreliability of evidence presented

of children this age and of their susceptibility to acquiring

matters from their environment and encoding such matters to

their experience." Petition App. 22A. Upon reconsideration

at the request of both DSS and the guardian, the trial judge

remarked further: "[t]he most troubling question in this case

involves the objectivity of many of those who involve

themselves in the child sexual abuse industry." Petition App.

28A.

I. THE ISSUES PRESENTED BY THIS CASE ARE OF

CRITICAL IMPORTANCE TO CHILDREN

Cases such as this will not go away. State courts are

reaching inconsistent results based at least in part on

divergent understandings of this Court's decisions concerning

the rights of children and parents. "Constitutional rights do

not mature and come into being magically only when one

attains the state-defined age of majority. Minors, as well as

adults, are protected by the Constitution and possess

constitutional rights." Planned Parenthood v. Danforth,

428 U.S. 52, 74 (1976).

Conflicting interpretations and uncertainties about the

impact of this Court's decisions concerning the rights of

children and their parents threaten the well-being and even

the lives of children. Decisions returning a child to abusive

parents unambiguously ignore the child's rights, needs and

interests. They do so without consideration of, or even

mention of, the holdings of this Court that a child is a

‘person’ protected by the Constitution. By leaving the child

out of the equation, the decisions propagate the traditional

adult-centered perspective within family law which

myopically analyzes only the rightness or wrongness of

conduct by the competing adults and have not incorporated

the fundamental principle that a child is a person.

Among the constitutional rights guaranteed to

children and adults alike is the right to seek access to courts:

see Tribe, American Constitutional Law, 2d ed. 10-18

(1988); based upon the Ist amendment, the due process

clause of the 14th amendment, and the privileges and

immunity clause of Article IV. Ryland v. Shapiro, 708 F.2d

967 (Sth Cir. 1983), cert. denied, 474 U.S. 1032 (1985).

This Court has extolled the right of access as a fundamental

right protected by the Constitution.

The right to sue and defend in the courts is the alternative

of force. In an organized society it is the right conservative

of all other rights, and lies at the foundation of orderly

government. It is one of the highest and most essential

privileges of citizenship. Chambers v. Baltimore & Ohio

Railroad Co., 207 U.S. 142, 148 (1907).

Neither a well-meaning adult who professes to have

the child's "best interest” as a priority, nor a court which has

a parens patriae interest in promoting children's welfare is

sufficient. "For human dignity, the difference between the

State's interest and the children's own interest is critical."

Tremper, Respect for the Human Dignity of Minors, 39

Syracuse L.Rev at 1335 n. 250. Even concern for the

parents’ rights in this case does not bar meaningful appellate

review of the guardian's bias claim. The children have been

returned to their custody and will likely remain with the

parents during the pendency of this appeal and any remand.

The burdens of litigation placed upon the parents and the

South Carolina courts are light when compared to the heavy

10

ET

burden of children living in circumstances evidenced at trial

and deprived of their opportunity to be heard fairly.

Justice Frankfurter observed: ~The history of

American freedom is, in no small measure, the history of

procedure.’ In re Gault, 387 U.S. 1, 20-21 (1967).

Children experience manifest injustice when they are denied

the opportunity for meaningful appellate review of claims of

bias expressed in an optical-illusion-like focus on highly

disputed facts presented in highly charged ideological terms,

such as evoking the specter of the "child sexual abuse

industry". The illusion of a fair hearing appears and then

disappears absent a fully contextualized understanding. In

the present case, the children are denied even an unbiased

forum in which they can assert their interests. The anchoring

principle of including the child as a person in the

constitutional analysis would prevent the outcome from being

determined by which ideological eye is cast upon the matter.

Amici submit that there is a compelling national

interest in grant of certiorari so that this Court can consider,

in a fully contextualized way, the extent and consequences of

the treatment of children as property and not as persons in

this and similar cases.

Il. CHILDREN HAVE A FUNDAMENTAL RIGHT TO

MEANINGFUL APPELLATE REVIEW OF THEIR

CLAIMS OF JUDICIAL BIAS NOTWITHSTANDING

ISSUES OF STALENESS CAUSED BY THE

APPELLATE PROCESS ITSELF

More than 25 years ago this Court stated: "Whatever

may be their precise impact, neither the 14th Amendment

nor the Bill of Rights is for adults alone." In re Gault, 387

11

US 1, 13 (1967)°. This Court has determined that children

"are ‘persons’ under our Constitution" and are "possessed

of fundamental rights which the State must respect.” Tinker

v. Des Moines School District, 393 US 503, 511 (1969). As

other of this Court's decisions hold, the fact that a person

may not be able to act or choose autonomously is not

dispositive, and "competence" in the usual adult sense is not

a prerequisite to possession of constitutional rights. City of

Cleburne Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432

(1985); see also Cruzan v. Director, Missouri Dept. of

Health, 497 US 261 (1990). This Court has not determined

the implications of this fundamental principle as it bears on

the protection due children's appellate rights. This case

squarely presents that issue.

An experienced Connecticut state court judge recently

wrote, "It is ironic that although corporations in the United

States have long been held to be persons,’ and thus are

eligible for constitutional protection, the extent to which

children, as individuals, have comparable constitutional

rights is still not entirely clear." Charles D. Gill, Essay on

3. Although Jn re Gault arose in the context of delinquency

proceedings, this seminal decision has served as the foundation

for the extension of constitutional protections to children in civil

as well as criminal or quasi- criminal proceedings. The Court in

Gault recognized that the civil-criminal dichotomy is often

merely a talismanic rationalization for lesser procedural

standards and instead determined that the proper inquiry

concerns the substance of the exercise of power by a court.

Even the dissent recognized that "[a] State in all its dealings

must, of course, accord every person due process of law."

(Emphasis added.) Jn re Gault, 80 (Stewart, J., dissenting).

See also, J. Goldstein, A. Solnit, S. Goldstein and A. Freud,

The Best I F the Child: The I Deri }

Alternative (1996).

12

the Status of the American Child 2000 A.D.: Chattel or

Constitutionally Protected Child-Citizen?, 17 Ohio Northern

L. Rev. 543, 548 (1991). Amici assert that because a child

is a ‘person’, it is relevant, in making custody decisions,

how loss of that recognition as a person could affect both his

or her well-being if not life itself.

As a "person" a child is protected by the Fourteenth

Amendment to the United States Constitution. Among the

fundamental elements of protections of the 14th Amendment

is access to meaningful appellate review.

Childhood is a social process. The legal process can

be reversed, but the social process cannot. Children must

not wait for a court to tell them that they should have not

have been abused sexually after they have already suffered

the irreversible consequences of parental inaction.

Interfering with the child's safety violates the child's rights.

It treats him and his rights as constitutionally less significant

than his caretakers and their rights. The child is reduced,

thereby, to an instrument to serve the caretaker's needs,

however perverse.

When faced with resolving a conflict between people

who all have interests of constitutional magnitude, a court

should “consider the positions of the parties’ the significance

of their interests, and the relative burdens that will be

imposed by differing resolutions." Davis v. Davis, 842

S.W.2d 588, 603 (Tenn. 1992). Instead, South Carolina

treats only the parents and trial judge as having rights while

children are treated in the same manner as property to be

owned, without independent human rights.

Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce

v. Society of Sisters, 268 U.S. 510 (1925), still much cited

in defense of parents' rights, are grounded in notions of

13

children as property. Meyer and Pierce were "authored and

joined by the Court's most inflexible laissez-faire

conservative and grounded on economic substantive due

process precedents." Barbara B. Woodhouse, "Who Owns

the Child?” Meyer and Pierce and the Child as Property, 33

William & Mary L. Rev. 995, 1042 (1992). "[I]n Meyer

the court vindicated the ‘liberty’ to control another

human being . . ." Id. at 1099 n.577. As Governor Pierce of

Oregon said during this Court's consideration of Pierce, "{I]t

is a Strange perversion of the word ‘liberty’ to apply it to a

right to control the conduct of others." Id. at 1042.

Although Matter of Marriage of Ross, 783 P.2d 331, 338

(Kan. 1989) arose in the context of a dispute over paternity

testing, the Kansas Supreme Court noted the priorities to be

set in resolving conflicts of rights: "Although someone may

suffer, it should never be the child, who is totally innocent

and who has no control over or conception of the

environment into which he or she has been placed." Id. at

339.

This Court has itself recognized that harm to

children's mental and emotional development involves

injuries that cannot be reversed or remedied. Certain

Named and Unnamed Non-Citizen Children and Their

Parents v. Texas, 448 U.S. 1327, 1332 (1980) (irreparable

harm to children of not being able to attend school;

recognizing that developmental, emotional and behavioral

damage to children cannot be repaired by a future legal

remedy). The unique nature of the threatened harm to

children situated as are these far outweighs the possible

detriment to the adult parties, as recognized by the priority

historically accorded to protecting vulnerable children. See,

e.g., Prince v. Massachusetts, 321 U.S. 158 (1944);

Hammer v. Dagenhart, 247 U.S. 251 (1918)(Holmes, J.,

dissenting).

14

Children have an interest in being protected from

harm whether the harm comes from neglect or from the

sexual abuse of their care givers. In Parham v. J.R.. 442

U.S. 584 (1978), this Court noted that, regardless of the

State's respect for parental authority, and parental rights,

"we have recognized that a state is not without constitutional

control over parental discretion in dealing with children

when their physical or mental health is jeopardized." Id. at

604 (emphasis added).

This case is part of a necessary paradigm shift in the

law from children-as-chattel to children as rights-bearing

people. The constitutional principles underlying this shift are

well established. Courts, relying on tradition, have failed to

apply them consistently to children. To the extent that case

law reflects ideas of children-as-chattel instead of

children-as-persons and has failed to consistently apply basic

constitutional principles to children, the case law is due for

a change. "The paucity of substantive law concerning the

rights of minors in such matters as divorce, Custody, juvenile

delinquency, and mental health commitments may be

attributable to the lack of independent representation in such

proceedings." James. K. Genden, Separate Legal

Representation for Children: Protecting the Rights and

Interests of Minors in Judicial Proceedings, 11 Harv.

C.R.C.L. Law Rev. 565 n.2 (1976).

Our legal concepts constantly change to reflect the

growth of society's values, and such change is proper. As

the 11th Circuit pointed out in extending the protection of

the fourteenth amendment to children in foster care:

The fourteenth amendment, like the eighth

amendment, “must draw its meaning from the evolving

standards of decency that mark the progress of a maturing

society.’ Trop v. Dulles, 356 US 86, 101 (1958). With

15

contemporary society's outrage at the exposure of defenseless

children to gross mistreatment and abuse, it is time that the

law give to these defenseless children at least the same

protection afforded adults who are imprisoned as a result of

their own misdeeds. Taylor v. Ledbetter, 818 F.2d 791, 797

(11th Cir. 1987). See also, Brown v. Chastin, 416 F.2d

1012, 1027 (Sth Cir. 1969) (Rives, J., dissenting)("a change

of parental bondage during the tender years is hardly less

upsetting of one's pattern of life than is the denomination and

possible commitment of a child as a “juvenile delinquent’ .

Pe:

In breaking with common law tradition the Court will

act consistently with well recognized fundamental

constitutional and human rights principles and discard those

portions of tradition which are inconsistent with the

principles. Recognizing a child's right to meaningful

appellate review recognizes the human dignity of minors.

To incarcerate a person without according a full

panoply of due _ process rights violates our fundamental

constitutional beliefs. A fortiori, the case of these children

in a protection proceeding involving allegations of neglect

and sexual abuse before a biased decision maker can be

similarly characterized. Whatever rights the children may

have go for naught if they are bound by bias. The right to

meaningful appellate review is the only assurance that these

children's interests and statutory and constitutional rights

will be realized. The record in the proceedings below

reflects confusion, unfairness, arbitrariness and

victimization.

In ascertaining the "best interests” of the children in

the heated struggle between these parents and the State, the

trial court turned a deaf ear to the best available evidence -

16

the voices of the children. Children often complain that

adults will not listen.

"When a child requests a reason or explanation

concerning a particular restriction, at least two responses are

open to a parent [or trial court judge]. On the one hand, the

parent may fulfill the request and demand compliance; on the

other, the parent [or trial court judge] may ignore the child's

inquiry. From the child's perspective, this is essentially the

difference between the expression of legitimate and coercive

power." Elder, Parental Power Legitimation and Its Effect

on the Adolescent, reprinted in Goldstein and Katz, The

Family and the Law (1965), 980. In the legal context, the

need to be listened to is realized through the "opportunity to

be heard."

This paradigm shift in recognizing the legal status of

children is similar to other paradigm shifts in this nation's

history. It is at once a major change and yet at the same

time simply a more consistent application of our professed

principles. "Bad court decisions must be challenged if they

are to be overruled, but the early challenges are certainly

hopeless. The first attorney to challenge Plessy v. Ferguson

was certainly bringing a frivolous action, but his efforts and

the efforts of others eventually led to Brown v. Board of

Education." Eastway Construction Corp. v. New York, 637

F. Supp. 558, 575 (E.D.N.Y. 1986).

At this Nation's founding, the Founders proclaimed

itas "self-evident" that "all men are created equal," and yet

felt it obvious that African American men were "different,"

such that a black man had no rights which a white man was

bound to respect. See Dred Scott v. Sanford, 19 How. 393

(1857). It was also obvious that women, of any race, were

"different" and therefore could be denied the rights

guaranteed to "all persons" -such as the right to vote.

17

(Shortly after ratification of the 14th Amendment, which

promised all citizens equal protection of the laws, the U.S.

Supreme Court upheld an Illinois prohibition against women

becoming lawyers. Bradwell v. Illinois, 16 Wall. 130

(1872).)

African Americans, women and children have in

common the history of being treated essentially as property

and as exceptions to the social contract upon which our

founding documents declared this nation to be based. In

each case, the articulation of the principle that members of

each group were constitutional "persons" came well before

society in general and the legal system actually treated them

as such.

Just as for African Americans and women, steps

toward progress for children have 10t come easily or

without protest and resistance. For example, we now take

for granted the child labor laws passed during the early

twentieth century. At the time, however, some religious

leaders and conservative political forces opposed such laws

as unwarranted governmental interference in the economy

and the privacy rights of the family. See Hammer v.

Dagenhart, 247 U.S. 251 (1918); Robert H. Mnookin,

Child, Family and State 646-68 (1978).

One scholar notes that "from Roman times to the

mid-nineteenth century [children] were treated as something

akin to property and had rights which might be characterized

as falling somewhere between those of slaves and those of

animals." Cohen, Relationships Between the Child, the

Family, and the State, in Perspectives on The Family, 293

(M. Bayles, R. Moffit & J. Greie, eds. 1990).

American attitudes toward the treatment of children did

not begin to change until the end of the nineteenth century.

18

Dennis P. Ichikawa, An Argument on Behalf of Children, 2

Child Maltreatment 202 (Aug. 1997); Stuart N. Hart, From

Property to Person Status: Historical Perspective on

Children's Rights, 46 Am. Psychologist 53 (Jan. 1991).

Even then, the Society for the Prevention of Cruelty to

Animals was founded before a similar society to protect

children.

"Tradition" could not sanctify slavery or segregation

or disenfranchisement of women or discriminatory treatment

of children born out of wedlock. It cannot sanctify treatment

of children as stale chattel subject to sexual abuse. The vital

claims raised by these children cry out for an unbiased

hearing.

CONCLUSION

Due respect for the personhood and human dignity of

children - the characteristics that distinguish them from

property, which can be shunted about depending on claims

of ownership, requires that we respect the appellate rights of

children. They have only one childhood in which to

accomplish all the tasks and meet all the challenges involved

in growing up. They do not go into suspended animation

while adults write appellate briefs.

The decision of the South Carolina courts only

balanced, weighed, and judged the interests of contending

adults rather than acknowledging that children have interests

worthy of consideration. They treated the children as

property. The U.S. Constitution, with its emphasis on the

human dignity of all persons, requires more.

A meaningful opportunity to be heard surely requires

that the courthouse doors be open to children seeking,

through their guardian, the help of an appellate court system

19

to protect them in their vulnerability. The right to the

opportunity to be heard is meaningless if the guardian is

unable to speak for children before an unbiased tribunal.

Accordingly, amici respectfully request that this

Court grant the petitioner’s petition for writ of certiorari and

undertake review of this case on the merits.

Respectfully submitted,

Counsel for Amici Curiae

Eugene Falco, Esq.

P.O. Box 625

45 Church Street

New Hartford, CT 06057

(860) 379-7487

Dated: August 2, 1997

20