By: Joseph Railey
When a child is born to different-sex adults, we have legal ways to determine who the child’s parents are. Obviously, determining who is a child’s mother is easy, absent adoption or surrogacy she is the woman who gave birth to the child. In many cases determining a father is also easy as the law presumes that a married woman’s husband is the child’s father and if the woman is unmarried she can bring a paternity suit against a suspected “father.” In the wake of the Supreme Court’s landmark marriage equality ruling in Obergefell v. Hodges, these laws encountered a problem. Because of their gendered construction, how does the law determine who the legal parents of a child born to same-sex couples are? Following Obergefell, the Uniform Law Commission set out to answer these questions by revising the Uniform Parentage Act (UPA).
First passed in 1973, the Uniform Parentage Act seeks to create a uniform legal system for determining parent-child relationships. Prior to this year, the Act had been amended a few times, most recently in 2002. The 2017 UPA amendments create a paradigm that is constitutional in light of the Supreme Court’s decisions in Obergefell and in Pavan v. Smith earlier this year.
Among the most significant changes in the 2017 UPA is the inclusion of gender-neutral language such that the act applies equally to fathers and mothers. This is made abundantly clear in § 107 which states, “To the extent practicable, a provision of this [act] applicable to a father-child relationship applies to a mother-child relationship and a provision of this [act] applicable to a mother-child relationship applies to a father-child relationship.” Apart from this provision, many of the operative sections of the UPA are now also written gender neutral. Section 204 (which deals with the marital presumption of parentage) now refers to “an individual and the woman who gave birth to a child” rather than gendered terms like a “woman and her husband” in determining if a marital presumption applies. Similar gender-neutral language is applied throughout the revised UPA.
While these changes sound insignificant, their impact is anything but. In the wake of nationwide marriage equality, there have been a significant number of paternity and custody suits involving children of same-sex couples. Some of these cases, like McLaughlin v. Jones in Arizona, involved arguments based in large part on the gendered language in the statute. In McLaughlin, following the deterioration of her marriage with her partner, Kimberly, the birth mother of a male child, argued that her former partner had no parental rights over her child because the plain language of Arizona’s marital presumption statute referred to “paternity” and “males.” At the outset of their opinion, the Arizona Supreme Court stated that “a man is presumed to be a legal parent if his wife gives birth to a child during the marriage. We here consider whether this presumption applies to similarly situated women in same-sex marriages.” Based on Pavan and Obergefell, the Arizona court determined that the presumption applied equally to same-sex couples.
The 2017 UPA has yet to be adopted by any state. However, the Act is significant as it furthers the best interest of children born to same-sex parents by seeking to guarantee their right to a relationship with both of their parents. While states like Arizona have reached this conclusion through the judiciary, that process is not short (McLaughlin, for example, started in 2013). The revised UPA provides a way for states to avoid lengthy and complex litigation while protecting a child’s interest in having a legal relationship with both parents.
For more information please see:
About the author:
Joe is a third-year law student at Syracuse University College of Law. He is an Executive Editor on the Syracuse Law Review and a member of the Moot Court Honor Society. Joe is interested in LGBTQ rights, civil rights litigation, and immigration law.
Students Remain Vulnerable to Ongoing Sexual Assault by Educators Due to Lack of Effective and Uniform Procedures in Screening and Reporting by Schools
By: Nico Zulli
Every 98 seconds someone in the U.S. is sexually assaulted. That means every single day more than 570 people experience sexual violence in this country.
Many of these crimes of sexual violence are committed in schools – and many of these victims are children.
According to a January 2014 report from the Government Accountability Office, the failure of U.S. schools to protect students from sexual abuse by school personnel is a story of district cover-ups, lack of training, incomplete teacher background checks and little guidance from the U.S. Department of Education.
The overarching issue is that our nation’s K-12 schools collectively lack a uniform, systemic approach to preventing and reporting educator sexual abuse of students. The best available study, reported by the American Association of University Women in 2000, suggests that about 10 percent of students suffer some form of sexual abuse during their school careers by a teacher or school employee.
Still today, the Departments of Justice, Education, and Health and Human Services cannot agree on whose domain educator sexual misconduct falls into. Moreover, no one has ever designed a nationwide study for the expressed purpose of measuring the prevalence of sexual abuse by educators.
In a recent case in Maryland, an HIV-infected school employee, Carlos Deangelo Bell, 30, has been accused of sexually victimizing, without protection, 42 male students ranging from 11 to 17 years old.
Bell is alleged to have committed these assaults between May 2015 and June 2017, while working as an instructional assistant at Benjamin Stoddert Middle School and as track coach at La Plata High School.
Bell was originally indicted on 119 counts for his alleged assaults between May 2015 and June 2017. The indictment was updated in July 2017, and as of Monday, October 23, 2017, it has now reached 206 counts, ranging from charges of sexual abuse of a minor to child pornography.
Notably, the investigation into Bell’s conduct was launched in December 2016 when a parent allegedly found inappropriate texts between her child and Bell. Although he was removed from his coaching and aide positions soon after the December investigation began and was directed to have no contact with the students, the Charles County Sheriff’s Office said as many as 10 middle school students were assaulted between the launch of the investigation in December 2016 and Bell’s arrest in July 2017.
The state will seek life in prison if Bell is convicted. The state attorney’s office said they were not aware of any of the victims testing positive for HIV at this time.
But, the true question is, why is the safety of children in Charles County Public School District, and every other school district for that matter, seemingly not a top priority for our federal government and its agencies?
A year-long USA Today Network investigation found:
“[E]ducation officials put children in harm’s way by covering up evidence of abuse, keeping allegations secret and making it easy for abusive teachers to find jobs elsewhere. And, as a result, school children across the nation continue to be beaten, raped and harassed by their teachers while government officials at every level stand by and do nothing.”
USA Today’s investigation revealed more than 100 teachers who lost their licenses, but are still working with children or young adults today. One of the main reasons the problem of sexual abuse of students by educators persists is due to schools’ ineffective screening procedures. Another contributing factor is the diligence of schools in reporting suspicions and incidents of sexual abuse in a timely and transparent manner. However, these factors are only issues because the government is not guiding schools and school officials to adhere to and abide by any sort of uniform screening or reporting procedures. Thus, such procedures are virtually defunct.
As the Bell case illustrates, school officials are often found behind the eight ball in reporting suspicious activity or incidents of abuse by their employees to parents. And, when school officials do disclose investigations and/or abuse scandals, the disclosure often leads to promises of tighter screening of job applicants, which is difficult to achieve without effective, uniform procedures in place.
To resolve these issues, federal watchdog agencies need to continue to challenge other departments for better dissemination of information to help schools prevent and report sexual abuse, and more vigilantly track and analyze incidents committed by school personnel. This way, not only will it reduce the likelihood that sexual predators go undetected in the hiring process, but also prevent continued attacks on students, both during and after investigations against school personnel have been launched.
Schools have the responsibility to prevent sexual abuse, but this requires full understanding and compliance with uniform requirements developed by our government, local, state, and federal, which close the gaps in the current scheme. Gaps that leave children, like those victimized by Bell, vulnerable to sexual attacks after investigations have already been launched.
Protecting students from sexual abuse by the people selected to educate their developing minds is not a choice; it’s a law. As such, schools must be guided by our government, at every level, to become better equipped to prevent and defend against the prevalence of sexual attacks on students by those they should be able to trust most.
For more information please see:
CNN – HIV-Positive School Aide Accused of Sexual Assault Faces 206 Charges– 24 October 2017
Fox News – Hiv-infected School Aid Accused of Sexually Victimizing 42 Children in Maryland —24 October 2017
USA Today – Potential Victim Count Rising in Case Against Hiv-Positive Coach Accused of Filming Sexual Assaults – 2 August 2017
WJLA – Former Md. School Coach Charged with Child Porn, Assaults on Male Students, has HIV – 7 July 2017
The Washington Post – Is Cleaning House the Best way for Schools to Deal with Sexual Abuse? – 17 February 2016
Ed Source – Schools Failing to Protect Students From Sexual Abuse by School Personnel, Federal Report Says —5 February 2014
United States Government Accountability Office – Federal Agencies Can Better Support State Efforts to Prevent and Respond to Sexual Abuse by School Personnel —January 2014
Partnership for the Public Good – An Educational Gift: Teacher Aides in New York State —20 April 2012
Slate – How Many Kids are Sexually Abused by Their Teachers? —8 February 2012
By: Sarah Purtill and Nico Zulli
The story of 3 sisters in the Kansas foster care system brought to the forefront how many foster care children are considered missing. The 3 sisters return, aged 12, 14, and 15, is one of the few instances that ends on a bright note. The girls were found safe and no arrests were made in connection with their disappearance.
Not all foster kids who disappear have the same story. In Kansas alone, there are 74 children missing from the foster care system, which has 7,100 children under its care. Regardless of how many children there are in the Kansas foster care system, 74 missing children is a number anyone with a conscience would think is too high.
In Kansas, the foster care system is privatized and split into two agencies or contractors; foster children in the western part of Kansas are under the supervision of Saint Francis Community Service’s and in the eastern part of Kansas, foster children are under the supervision of KVC Kansas. Despite Kansas having privatized their foster care system, the number of missing foster care children is still on par with the national average, which is approximately 1%. The United States Department of Health and Human Services reported that during the 2015 federal government’s fiscal year, approximately 4,600 foster care children were listed as runaways which is about 1.1% of the almost 428,000 total.
The outrage over these numbers in Kansas is a reaction we should be seeing around the nation over how many foster care children are missing. Despite what most would call an unreasonable number of children missing in Kansas, Phyllis Gilmore, the head of the Kansas Department for Children and Families (DCF) said she was not aware of the sisters’ disappearance before the Kansas City Star first reported it. Gilmore claims that tracking children in foster care is just one of the department’s responsibilities. She says the department has policies in place to attempt to find missing children and return them to their foster homes.
“These children who run away are not under lock and key; they are generally in family foster homes, older youth, who attend school and activities, and they often miss their biological families,” she said. Many of the foster care children run away because they are subjected to a multitude of different kinds of abuse. As children, they do not always understand what is happening to them and they just want to escape. But these are not the only reasons foster children run away. Foster care children have often experienced addiction and/or trauma. The system should be built in a way to account for these situations as they are prevalent amongst foster care kids.
“There’s a break between DCF and the contracting,” said Representative Steve Alford. “Once the children … [go from the court] into the possession of the secretary, she hands them off to the contractors and it’s their responsibility, you know, it’s kind of like out of sight, out of mind in a lot of aspects.” This does not justify the irresponsibility of any agency involved in caring for foster children. The idea that these agencies feel they can “pass the buck” when it comes to the lives of children should be considered abhorrent and needs to be addressed by legislation. These children in the foster care system are relying on these agencies to care for them when they have no one else currently able to care for them.
Chad Anderson, chief clinic officer at KVC Kansas, acknowledged that contractors can do a better job. “I don’t know that we as contractors have shared as much in terms of missing youth and the day to day as we probably should,” Anderson said. He added that contractors update the Department of Children and Families every 30 days on the action taken to locate the missing children. The first 48 hours are critical to finding a missing child. The fact that DCF can’t even employ it’s supposed “policies” until as many as 29 days after a foster child has been missing, even if its a runaway, dramatically affects whether or not the child will be found safely.
We owe it to these children to do a better job at maintaining their whereabouts and safety and protect them from abuse. The Legislature needs to address these issues for foster care children as they need someone to fight for them when it is clear that the current set up leaves them prey to potentially life threatening situations and a multitude of different kinds of abuse. The agencies involved in the foster care system need to be policed better so as to better serve the safety of the children they were put in place to protect.
For more information, please see:
Fox News – 3 Missing Kansas Foster Children Found Safe; Man Released – 17 October 2017
Wichita Eagle – Number of Missing Foster Kids Doubled Over Two Years – 14 October 2017
Fox News – More Than 70 Kids Missing From Kansas Foster Care System – 12 October 2017
HPPR – More Than 70 Kids Missing From Kansas’ Foster Care System – 11 October 2017
Kansas City Star – How did 70-plus Children Go Missing From the Kansas Foster Care System? – 11 October 2017
Time – ‘Flabbergasted.’ More Than 70 Children are Missing From Foster Care – 11 October 2017
US News – 70 Plus Children Missing From Kansas Foster Care System – 11 October 2017
Fostering Prospectives – Preventing and Responding to Runaways From Foster Care – May 2014
OJJDP Report – When Your Child is Missing: A Family Survival Guide – May 1998