# Amicus Curiae Brief — Overcash v. Doe

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1050%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 943

## Text

a 4%
a
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1050%3A2. Public record. Not legal advice.