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Amicus Curiae Brief Summaries
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The National Association of Counsel for Children has had an involvement with the filing of amicus curiae briefs since our inception in 1977. In fact, the filing of amicus curiae briefs is listed as a core purpose in our articles of incorporation. Over the years, we’ve had the chance to file a number of amicus briefs with federal and state appellate courts, as well as the United States Supreme Court. Below, you’ll find summaries of various amicus briefs we’ve submitted on behalf of our membership.



Adoptive Couple, v. Baby Girl, a Minor Under the Age of Fourteen Years, Birth Father, and the Cherokee Nation

Court: United States Supreme Court


Topic: Application of ICWA


Summary:


A divided South Carolina Supreme Court applied the Indian Child Welfare Act to uphold the removal of a 2 year old girl from her adoptive parents with whom she had lived since birth. After an adoption petition was filed, the alleged father who did not qualify as a legal parent under state law invoked ICWA to block the adoption and sought custody of the child. The trial court found that because DNA testing showed that he was the biological father, ICWA prevented the termination of his parental rights. The adoptive couple has filed a cert petition with the U.S. Supreme Court.


The petition for certiorari argues that review is required because there is inconsistent application of ICWA among the states on 2 issues: (1) Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law; and (2) Whether ICWA defines "parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent. It also argues that South Carolina ruled incorrectly on both issues.


The amicus brief is filed in support of the child and asserts that certiorari should be granted because state courts decisions on each of these two questions are inconsistent and the court should resolve the differences in the conflicting state interpretations. Amici took no position on whether the South Carolina Supreme Court resolved the issues correctly.


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In re R.L.-R.

Court: Florida Third District Court of Appeal


Topic: Child's right to attorney-client privilege


Summary:


The 16-year-old child, who was AWOL, disclosed his whereabouts to his attorney and asked the attorney to keep it confidential. The agency sought an order from the court to compel the child's attorney to disclose the child's whereabouts to the agency. The trial court found that the information was a privileged attorney-client communication and denied the agency's request. The agency and the Florida Statewide Office of the GAL appealed this order. The brief argues that the privilege applies in all attorney-client relationships, regardless of the client's age; that Florida law supports the right of children in dependency proceedings to engage in confidential communications with their attorneys and that there is no exception for disclosure of client's whereabouts; that best interests does no override the privilege; that the child has a constitutional right to privacy of the information communicated to his attorney; and that ABA Model Act, legal experts, professional organizations, and case law in other jurisdictions around the country support recognition of the child's right to confidential communications with counsel and right to assert attorney-client privilege.


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Miller v. Alabama and Jackson v. Arkansas

Court: U.S. Supreme Court


Topic: Youth and life sentences


Summary:


Both cases involve juveniles sentenced to life without the possibility of parole for homicide offenses committed when they were fourteen years old. In 2010, the U.S. Supreme Court in Graham v. Florida held that it is unconstitutional to sentence juveniles to life without parole for non-homicide offenses. The amicus curiae brief argues life without the possibility parole is also unconstitutional when imposed on juveniles convicted of homicide offenses.


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In Re: CHRISTIAN M. & In Re: ALEXANDER M.

Court: Supreme Court of New Hampshire


Topic: Parent's right to counsel in child welfare cases


Summary:


On July 1, 2011, the New Hampshire legislature eliminated funding for court appointed lawyers to represent indigent parents in child welfare cases. The issue before the Court is whether the New Hampshire Constitution permits the state to deprive parents of the right to counsel in cases in which the state forcibly removes children from the custody of their parents. The brief argues that providing parents with the right to counsel is necessary to prevent an erroneous deprivation of a liberty interest. Additionally, errors made in the initial custody deprivation can affect subsequent decisions throughout the case including the final termination of parental rights decision. Finally, parents' counsel play a crucial role in reducing errors in child welfare cases.


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M.D. v. Perry

Court: 5th Circuit Court of Appeals


Topic: Child in state custody as a class able to bring suit


Summary:


Texas Rule 23(b)(2) extends to protecting the civil rights of custodial plaintiffs, i.e. children in state custody. Several other circuits recognize class action suits in civil rights cases regarding child welfare systems. Additionally WAL-MART V. DUKES did not alter the grounds for certifying traditional 23(b)(2) civil rights class actions or otherwise undermine the grounds for class certification. Class action child welfare litigation has been instrumental in reforming failing foster care systems and there is no basis for application of a heightened class certification standard to child welfare reform lawsuits.


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In re Emoni W.

Court: Appellate Court of Connecticut


Topic: Interstate Compact on the Placement of Children and noncustodial biological parents


Summary:


Applying the Interstate Compact on the Placement of Children (ICPC) to parents violates the reciprocal constitutional rights of parents and children to family integrity. It also violates the plain terms of the statutory language and undermines the courts’ authority to protect parties’ fundamental constitutional rights and serve children’s best interests.


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DSHS, State of Washington v. Luak

Court: Supreme Court of Washington


Topic: Child’s right to independent legal counsel in a TPR proceeding


Summary:


Current Washington law does not guarantee a child independent legal representation in a TPR proceeding. However this can and should change because most other jurisdictions required it, and there are several coalitions and counsels that advocate and recommend this practice be implemented.


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J.D.B v. North Carolina

Court: US Supreme Court


Topic: Miranda custody and age


Summary:


Age is an important and critical factor that should be used when determining Miranda custody, especially in a school setting. Additionally, a suspect’s age provides the police with an objective standard by which to determine whether an individual is in custody.


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In re Mays

Court: Supreme Court of Michigan


Topic: Child’s opinion in TPR proceedings and the constitutionality of Michigan’s "one-parent” doctrine


Summary:


Michigan law requires a court to determine if a child is of sufficient age to give their view during a TPR proceeding. Failing to obtain the view of a child who is off sufficient age, violates that child’s due process rights. Michigan’s "one-parent” doctrine violates a parent’s due process rights because it requires the non-offending parent to prove their fitness. However they should be operating under the presumption that they are fit as stated in the US Supreme Court case Troxel v. Granville.


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Demiraj v. Holder

Court: U.S. Supreme Court


Topic: Individuals seeking asylum because of persecution on account of family membership


Summary:


Persecution on account of family membership is a severe and pervasive problem affecting a significant number of asylum-seekers. The Fifth Circuit’s interpretation of persecution "on account of” family membership runs counter to Congressional intent, as recognized by this Court, to protect and promote family unity. The Fifth Circuit’s interpretation conflicts with the United States’ international obligations to protect families and children.


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In re termination of D.R and A.R.

Court: Supreme Court of Washington


Topic: Child’s need for counsel in termination of parental rights hearing


Summary:


The majority of states mandate legal counsel for children in termination proceedings by statutes and case law. Washington's failure to guarantee counsel to children is a minority position and against the clear national trend. Only legal counsel provides the unique expertise, confidentiality, and privilege essential to the effective representation of children.


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Brief before the Michigan Supreme Court in the matter of Ethan, Emily, Tara, and Titus Bratcher

Court: Supreme Court of Michigan


Topic: Parent’s due process rights regarding the custody of their children


Summary: A parent’s right to custody cannot be infringed without an adjudication on her fitness.


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People v. Gabriesheski

Court: Supreme Court of Colorado


Topic: Guardian ad litem’s attorney/client privilege with their client, the child


Summary:


Although there is no specific statutory language which establishes an attorney/client privilege between a guardian ad litem and their client, the child, when taking all the laws regarding the guardian ad litem together it appears there is strong policy in favor of granting the privilege.


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Alan and Sheryl Sidman v. Michael and Renee Sidman

Court: Supreme Court of Colorado


Topic: When biological parents seek to terminate a guardianship, which party bears the burden of proof?


Summary:


While a parent does not relinquish their fundamental right in the case, custody, and control of their child by consenting to a guardianship, however overtime this shift in day-to-day care could lead to a situation where the parent loses their fundamental right. The deference to which a parent's interest is entitled at any particular point in time is determined by balancing the interests of the parents against the significant interests of the child in stability and continuity and the interest of the state in the child's welfare. At the inception of the process, the balance tends toward the interests of the parent; after years of guardianship and infrequent parental contact, the balance tends toward the interests of the child and the state parens patriae in the child's welfare. Therefore the Court is correct in placing the burden on the parents in this case to prove, by preponderance of the evidence, that terminating the non-parents' guardianship would be in the child's best interests.


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Khaled AF Al Odah v. United States

Court: U.S. Supreme Court


Topic: Military Commission Act lacks jurisdiction over juveniles


Summary:


Military commissions convened pursuant to the Military Commission Act lack jurisdiction over juveniles. Congress specifically chose to leave jurisdiction over juveniles out of the Act because of federal law which recognizes there is a distinct development difference between adults and adolescents. Additionally Congress has differentiated between adults and adolescents in criminal law, and there is significant recent social science that supports the view that adults and adolescents are very different.


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Roper v. Simmons

Court: U.S. Supreme Court


Topic: Execution of minors as cruel and unusual punishment


Summary:


Applying the death penalty to individuals who commit crimes while under the age of 18 constitutes cruel and unusual punishment. First, legal restrictions on the rights and responsibilities of youth demonstrate that the execution of minors under the age of eighteen at the time of the offense fails to serve any retributive purpose under the 8th amendment. As in Atkins, the legislative trend to abolish the juvenile death penalty is a compelling statement of society's attitudes toward executing youthful offenders, especially given the widespread adoption of laws allowing juvenile to be tried in adult court during this same time period. Additionally research since Stanford demonstrates that the deterrent rationale for capital punishment is not met by imposing it on youth under 18. Finally, juveniles, like the mentally challenged, are more prone to confessing to crimes they did not commit.


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Davis v. Washington and Hammon v. Indiana

Court: U.S. Supreme Court


Topic: Procedures and standards in dependency and neglect cases


Summary:


Millions of child victims are silenced by abuse and by procedures designed to protect them. Child maltreatment cases illustrate that petitioners’ proposed standard for defining "testimonial” statements is inherently flawed. Some of the reasons being the reasonable person standard is unworkable, the petitioners’ proposed test is overbroad and is inconsistent with admission of children’s out-of-court statements reporting child sexual abuse in 18th Century Trials.


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Strogner v. California

Court: U.S. Supreme Court


Topic: California statute of limitation in reporting child abuse


Summary:


The California statute of limitation recognizes the need for more time in reporting child abuse, because victims usually take longer to report and under the previous statute of limitation too many child molesters were not being persecuted. The underlying purpose of the time increase was supported by numerous scientific studies.


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Final brief before the Michigan Court of Appeals in the matter of David and Joshua Moore

Court: Michigan Court of Appeals


Topic: Parent’s due process rights


Summary:


Removing children from their mother’s custody and control prior to granting her any sort of adjudication is a violation of the mother’s due process.


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King and Harvey-Burrow v. Beaufort County Board of Education

Court: Supreme Court of North Carolina


Topic: School policies and fundamental right to an education


Summary:


The new policy of exclusionary school discipline jeopardizes student’s fundamental right to an education. The Court of Appeals was wrong to grant school officials such largely unfettered discretion to exclude students from the learning environment, even when such an infringement on student’s rights is unwarranted, excessive, and injurious.


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Sullivan and Graham v. Florida

Court: U.S. Supreme Court


Topic: Youth and life sentences


Summary: Juveniles convicted of homicide can be sentenced to life without parole.


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Sam and Tony M. v. Carcieri

Court: First Circuit Court of Appeals


Topic: An individual's capacity to sue as a representative of minors in state foster care custody alleging violations of their civil rights


Summary: Link is to court opinion, not amicus brief.


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People v. McBride

Court: Supreme Court of Michigan


Topic: Parent’s right to counsel in termination of parental rights hearings


Summary:


The trial court erred in denying a father counsel during his termination of parental rights hearings because both state and federal law recognize the constitutional right to have counsel in these types of hearings. Additionally applying the harmless error standard to these types of cases is inappropriate because this a huge violation of an individual’s constitutional rights.


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