Texas Bar Journal
October 2010; Vol. 73, No. 9
The Constitutional Rights of Children
By: Barbara J. Elias-Perciful
The United States Supreme Court has long recognized that children are protected by the Constitution. Two important constitutional rights that often come into play in child welfare and child custody cases are the right to effective counsel and the right to sibling access. Although the Supreme Court has yet to rule specifically on these issues, some federal district court cases have confirmed that these are important rights for children who have been removed from their homes.
Kenny A. v. Perdue held that children have a fundamental liberty interest at stake in child welfare proceedings. It is the duty of family law attorneys who represent children who have been removed from their home by Child Protective Services to vigorously represent them. These attorneys must ensure that the decision to remove them from their homes is in their best interest. Children have a constitutionally protected right to the effective assistance of counsel in these proceedings to help ensure that the decision to terminate the child’s parents’ rights is not erroneously made, which would be a serious deprivation of due process. See Kenny A. v. Perdue, 356 F. Supp. 2d 1353 (N.D. Ga. 2005).
Aristotle P. v. Johnson, another federal case, held that foster children have a constitutionally protected right to maintain relationships with their siblings through reasonable contact. See Aristotle P. v. Johnson, 721 F.Supp. 1002 (N.D. Ill. 1989) A foster child’s attorney has the right to seek visitation for the child with their siblings. Because the child has been removed from their home and their parents, these sibling relationships are often very strong and are central to maintaining the child’s sense of family integrity and stability.