Even Good Parents Can Raise a Juvee - Not every apple falling from the tree is ripe.

“One of the oldest fundamental liberty interests consistently recognized by the Supreme Court is the interest of parents in the care, custody, and control of their children.” Justice Wiggins

This week the theme is “Was justice done?” Depending on who you ask justice has a different meaning. Even the same person will change their definition in a different situation; it can take on an entirely different meaning. Some people define justice from a moral or religious standpoint while others from a common sense standpoint and still others define it along the lines of trying to run a city or town or the State of Iowa. Many people define justice as the courts interpreting the law to support whatever it is they want to do having no regard for the rights of others. So how do you define justice?

Let’s begin today with a recent ruling from the Iowa Supreme Court having to do with the City of Davenport ordinance that attempts to punish parents when their children act as juvenile deliquents. The ordinance made the parent criminally liable when the child violated the law.

In this case before the Iowa Supreme Court the court struck down as unconstitutional the City of Davenport’s parental responsibility ordinance. One of several interesting aspects of the case is the dissent by Ternus and Cady choosing deference to the Iowa legislature rather than to allow the Courts through this ruling to protect the rights of its citizens through the Constitutional mechanism. One has to wonder whether the removal campaign is having an influence.

Here are a few quotes that should put the issues in perspective.

“First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.’ ” (quoting Grayned v. City of Rockford, 408 U.S. 104, 108–09, 92 S. Ct. 2294, 2298–99, 33 L. Ed. 2d 222, 227–28 (1972))

What the City of Davenport was trying to do was clearly stated in the opinion.

“Parental responsibility laws, such as the ordinance in this case, are based on the fairly simple rationale that, if the state imposes sanctions or threatens to impose sanctions on the parent for the delinquent acts of his or her child, the parent will exercise better control and supervision over the child, thereby reducing or eliminating future acts of juvenile delinquency by that child.” Again, Justice Wiggins.

“However, it is important to note the fundamental parental right to exercise care, custody, and control over children is not absolute. The state has a legitimate interest to promote the public welfare or the wellbeing of the child. City of Panora v. Simmons, 445 N.W.2d 363, 369–70 (Iowa 1989). Under the doctrine of parens patriae, the state may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways. Prince, 321 U.S. at 166, 64 S. Ct. at 442, 88 L. Ed. at 652. Consequently, when the child’s welfare is threatened, the state can use a wide range of powers to limit parental freedom and authority. Id. at 167, 64 S. Ct. at 442, 88 L. Ed. at 653.”

Whether the Ordinance Contains an Irrational and Unfair Presumption.

“Anne claims we can uphold the district court decision by finding the ordinance contains an irrational and unfair presumption that, if a minor violates the law, the court can assume the violation was a result of the parent’s failure to exercise reasonable parental control of the minor.”

It appears to me where this ordinance failed was in assuming the parents of a juvenile delinquent haven’t done all they possibly can to effect the child’s behavior. But can we conclude that when a child acts up it's because of bad parenting? We’ve all been there and experienced a rebellious child that acts contrary to good parenting. When the law makes the assumption that all parents of rebellious children must be bad parents then the law goes too far. As Justice Higgins wrote, “A presumption in a civil case violates the Due Process Clause of the United States Constitution if it is arbitrary or operates to deny a fair opportunity to rebut it.” (Page 24 of the decision.) “In other words, upon a second “occurrence,” a parent is presumed negligent. Because the second “occurrence” is the fact used to presume negligence, the ordinance’s presumption also presumes causation—that a parent’s negligence in controlling his or her child is the cause of the child’s delinquency.”

It is settled law that the mere fact an incident occurred does not mean a party is negligent. As the opinion points out there is no expert agreement on the causes of delinquency. So to presume it must be from bad parenting flies in the face of reason. If parental responsibility ordinances are to have any fighting chance to be constitutional they must provide for a hearing that evaluates what a parent is or isn't doing to provide for the child's supervision. Even then I have my doubts about their legality.

Caption: Anne Hensler vs City Of Davenport, In The Supreme Court Of Iowa, No. 09-0608, Filed November 12, 2010. (30 page opinion by Justice Wiggins.) A copy of the Hensler decision is also available on the Lombardi Law Firm website.

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