Rights of Children, Roles of Families Eyed in Fla. Case

By Deborah L. Cohen — October 07, 1992 8 min read

The decision by a Florida judge granting a boy’s request to terminate his mother’s parental rights was significant in allowing a minor to seek protection of his own interests in court, experts across a wide range of disciplines agree.

But the impact of the ruling late last month will be muted, many of these observers say, if it does not spur improvements in the child-welfare system’s ability to protect children at risk and a heightened recognition of the importance of family bonds and what it takes to nurture them.

The outcome in the highly publicized case of 12-year-old Gregory Kingsley rested on evidence that he had been neglected by his parents and bounced between foster homes and institutions over several years.

The case dramatized the need for “the most important family value we have--a functioning family to support each child,’' said Peter Forsythe, the former director of children’s programs for the Edna McConnell Clark Foundation.

“I hope that’s the centerpiece of this ruling,’' he said.

If the case “doesn’t lead to the conclusion that we should be doing more before these situations develop’’ to support families, said Laura M. Purdy, a philosophy professor at Wells College who has written a book arguing against “equal rights’’ for children, “it won’t have had the significance it could have had.’'

State Circuit Judge Thomas S. Kirk of Orlando ruled Sept. 25 that the boy--who until recently was identified only as Gregory K.--could sever legal ties to his biological mother. He also granted the boy’s request to be adopted by George and Elizabeth Russ, the foster parents with whom he has lived for a year, and to be renamed Shawn Russ. The boy’s natural father had previously relinquished his parental rights. His mother, Rachel Kingsley, contested the lawsuit and has appealed last month’s ruling.

But the most consequential action, many say, was taken July 10, when Judge Kirk ruled that, under the Florida constitution, Gregory had standing to sue on his own behalf.

The most “socially significant thing’’ about that step, said the boy’s lawyer, Jerri A. Blair, was that it “allowed a child access to court to protect himself when the state was failing to do so.’'

The question of the extent to which children should enjoy the same legal rights as adults has gained visibility in recent months, due both to the Florida case and to the identification of Hillary Clinton, the wife of the Democratic Presidential nominee, with children’s-rights issues.

A number of Republicans, citing journal articles by Ms. Clinton, a lawyer, have sought to portray her as an opponent of traditional families and an advocate of a broad right of children to sue their parents. That characterization has generally been disputed by legal scholars, who say her writings on children’s rights show that she would support legal standing for children independent of their parents only in the most extreme cases.

While proceedings to terminate parental rights when there is sufficient evidence of abuse and neglect are commonplace, adults generally initiate the action and guardians or court-appointed lawyers are supposed to represent a child’s interests.

What distinguishes the Florida case, experts say, is that the boy--while encouraged by his foster father, a lawyer--hired a lawyer himself and filed the suit in his own name.

Leonard Loeb, a past president of the American Academy of Matrimonial Lawyers, called the case a “precursor of the law catching up with society’s evolution’’ from a time when children were considered “chattel’’ and parental rights were absolute.

Over the years, legal experts point out, children have gained important ground in such areas as child-labor laws, the right to counsel in juvenile-court cases, and the right to seek certain kinds of medical interventions that their parents may oppose.

‘Psychological Difference’

In the child-welfare arena, said David Liederman, the executive director of the Child Welfare League of America, “What [the Florida] case has done is taken the whole issue of legal representation of children in court to another level.’'

“This is probably first time a child has had standing to be a party to a proceeding which profoundly affects that child’s future,’' added Connecticut Superior Court Judge Charles D. Gill, a co-founder of the National Task Force for Children’s Constitutional Rights, a nonprofit group that promotes children’s rights.

Some experts argue that the importance of the boy’s taking legal action on his own behalf has been overstated, since an adult advocate could just as easily have brought the suit.

“I don’t know of an instance in which it has been impossible to find an adult willing to act for a child’’ in such cases, said Chris Hansen, associate director of the children’s-rights project of the American Civil Liberties Union.

But it makes a “psychological difference to have a child speaking in his own voice,’' argued Elizabeth Bartholet, a professor of law at Harvard University. “It is easier to forget the child’s best interest if we don’t allow the child to speak.’'

‘A Fluke’?

Because the case was decided at the trial-court level, Mr. Loeb noted, it will not be precedent-setting until it reaches the appeal stage.

Some argue, moreover, that despite its symbolism, such a precedent would be of limited benefit to children in similar circumstances.

“This case is in fact a fluke,’' said Judge Gill, who noted that the boy involved is unusually articulate and had the good fortune to be found, taken in as a foster child, and encouraged in his actions by an empathetic lawyer who has said he himself had a similar family history.

“There are thousands of other cases [with] different outcomes--and many that are not even getting to trial--involving situations much worse than Gregory’s,’' Judge Gill said.

Standing to sue is “a first step and an extremely important one,’' said Jeanne Lenzer, the national chairwoman of the National Child Rights Alliance, an advocacy group for abused and neglected children. But it will be of “limited value’’ to children seeking to file such suits if they are still “in the custody of perpetrators’’ of abuse, she said.

Martin Guggenheim, a professor of law at New York University, maintained that the ruling fell short of “landmark’’ status because, just prior to the trial, the state child-welfare agency decided to support the termination of parental rights. If the case had been decided based solely on “what Gregory wants,’' he suggested, it would have had a “destructive’’ effect on the foster-care system.

More Suits Seen

Jane E. Carey and Harry H. Morrall, the lawyers representing Rachel Kingsley, argued that the ruling could pave the way for a flood of suits by children seeking to defy their parents.

Mr. Morall said last week that he had already seen accounts of at least three incidents involving children in other states taking actions they “indicated were inspired by the child in Florida.’'

“We hope it will not set a legal precedent in allowing children to sue their parents,’' said Caia Mockaitis, a spokeswoman for Concerned Women for America, a group that promotes a conservative stance on family issues. She added that the case “points to the state’s failure and the failure of the foster-care system’’ to enable the boy’s adoption earlier.

“The failure of the system should be the target of analysis--parents should not be,’' she said.

No ‘Suing Over Bedtimes’

It is a relatively recent development, experts say, for children to ask courts to honor their choice of where to live, and in most states it remains unclear whether they have standing to bring such actions on their own behalf.

But some experts say the ruling in the Gregory Kingsley case is unlikely to spur a flood of suits by children against parents, because most children could not afford them and courts would not hear them.

“This is not the first step on the road to kids suing over bedtimes,’' said Mr. Hansen of the A.C.L.U.

Of greater concern, said Howard Davidson, the director of the American Bar Association’s Center on Children and the Law, are the thousands of children “falling through the holes in the safety net.’'

“I think too much has been made of the way in which this case got before the court and too little of what it represents in terms of the problems of the child-welfare system,’' Mr. Davidson said.

Others also say the case highlights the need for more “family preservation’’ programs aimed at intervening with comprehensive services to help troubled families.

Legislation that was awaiting action in Congress late last week would free up more foster-care aid to help states expand such efforts.

Ms. Purdy of Wells College in New York, whose book In Their Best Interest? The Case Against Equal Rights for Children was published earlier this year, said the ruling in the Florida case appeared “reasonable.’' But she agreed with others in arguing that society must do more to “head off such situations’’ through earlier intervention and better social supports.

While the prosecution cast Ms. Kingsley as an irresponsible, neglectful parent with an unsavory lifestyle, the defense portrayed her as a poor single mother who had struggled to be a good parent but was thwarted partly by an inadequate welfare system.

While voicing sympathy for her plight, some experts said the ruling could have its greatest impact in challenging what they see as a bias toward biological parents in such cases.

“We are almost too reluctant to sever the ties between biological parents and their children’’ even in cases of serious abuse and neglect, said Ms. Bertholet of Harvard.

“Children don’t need fictional or technical or phantom families,’' said Mr. Forsythe of the Clark Foundation. “They need families who are there, and who love them and support them and guide them, and help them dry their tears and learn their lessons.’'

A version of this article appeared in the October 07, 1992 edition of Education Week as Rights of Children, Roles of Families Eyed in Fla. Case