Hidden in Plain Sight: The Tragedy of Children's Rights from Ben Franklin to Lionel Tate by Barbara Bennett Woodhouse

From the Publisher

Hidden in Plain Sight tells the tragic untold story of children's rights in America. It asks why the United States today, alone among nations, rejects the most universally embraced human-rights document in history, the United Nations Convention on the Rights of the Child. This book is a call to arms for America to again be a leader in human rights, and to join the rest of the civilized world in recognizing that the thirst for justice is not for adults alone.

Barbara Bennett Woodhouse explores the meaning of children's rights throughout American history, interweaving the childhood stories of iconic figures such as Benjamin Franklin with those of children less known but no less courageous, like the heroic youngsters who marched for civil rights. How did America become a place where twelve-year-old Lionel Tate could be sentenced to life in prison without parole for the 1999 death of a young playmate? In answering questions like this, Woodhouse challenges those who misguidedly believe that America's children already have more rights than they need, or that children's rights pose a threat to parental autonomy or family values. She reveals why fundamental human rights and principles of dignity, equality, privacy, protection, and voice are essential to a child's journey into adulthood, and why understanding rights for children leads to a better understanding of human rights for all.

Compassionate, wise, and deeply moving, Hidden in Plain Sight will force an examination of our national resistance—and moral responsibility—to recognize children's rights.

Product Details

• ISBN: 0691126909
  
• ISBN-13: 9780691126906
• Format: Hardcover, 376pp
• Publisher: Princeton University Press
• Pub. Date: March 2008
• Sales Rank: 208,581
• Series: The Public Square Ser.

• Table of Contents
• Read a Sample Chapter

Table of Contents

Read a Sample Chapter

Ain't I a person? Ain't I got rights? -Questions posed by a thirteen-year-old foster child

The great strength of history in a free society is its capacity for self-correction. This is the endless excitement of historical writing-the search to reconstruct what went before, a quest illuminated by those ever changing prisms that continually place old questions in a new light. -Historian Arthur M. Schlesinger Jr.

The boy I shall call Tony was not very tall or strong for his age, but he was intense, intelligent, and articulate. Tony had been removed from his mentally ill mother's care at age four because of medical neglect. He and his younger half sister had spent the previous nine years in various foster homes. He saw his mother often but she remained unable to care for him. When Tony was thirteen, the attorney for the state had decided to file a motion, known as a TPR, to terminate the parental rights of Tony's mother. A TPR is the ultimate sanction-the "death penalty" of family law. The judge had asked an interdisciplinary team, composed of a lawyer, a psychiatrist, and a social worker, to evaluate mother and children. I was not Tony's lawyer. My job was to advise the child psychiatrist and the social worker on the relevantlaw. But Tony knew I was a lawyer, and he had a lot of questions about his rights.

Everywhere but the United States, the answers would have been readily available in "child friendly" language, in booklets describing the United Nations Convention on the Rights of the Child, popularly known as the Children's Rights Convention or CRC. The United States is alone in refusing to ratify the CRC, the most rapidly and universally accepted of all human rights charters. Although the CRC was widely supported by mainstream organizations from the American Bar Association to the PTA, ratification in the United States had been blocked by opposition from the religious right because of concerns about undermining the traditional family and because of a pervasive American distrust of international law. Many Americans assumed our laws already gave children all the rights they could need or handle. Others feared that giving rights to children would threaten the autonomy of American families and open the privacy of the home to state intervention.

Meanwhile, Tony and hundreds of thousands of other American children were growing up in the custody of the state- essentially being raised by the government-with few rights and precious little family. For Tony, state intervention in his home life was a given. He lived each day with the state looking over his shoulder, deciding where he would live and what he would be allowed to do. In the words of another foster child, Malcolm X, he was stigmatized before his peers as a "state child" with no real home of his own. Whatever family ties Tony had were at the mercy of the state. A child in state custody, as Tony's story graphically illustrates, even more than an adult in custody, needs legal assistance to navigate the system and correct its mistakes and failures. The U.S. Constitution requires that the states provide lawyers to adults when they are placed in state custody-in prisons or psychiatric institutions, for example. However, abused and neglected children in the United States have no constitutional right to a lawyer and are lucky in some states to have a civilian representative to speak for them. Tony happened to live in a forward-looking state that had passed laws providing lawyers to children in foster care. But with a caseload of several hundred child clients, Tony's lawyer was not returning his phone calls. Tony had been saving up some tough questions and now here was a lawyer-myself-to answer them. I was stuck with the job of explaining to him that, under the law of his state, he did not have "standing"-the right to file papers on his own behalf-to oppose the TPR that would forever sever any legal relationship with his mother and remaining family members.

His disbelief and outrage were palpable. "She's my mother, ain't she? Ain't I got rights?" he demanded. "Look here," he said, pointing to the text of a pocket size U.S. Constitution I had given him. "It says here 'all persons born in the United States are citizens.' And it says 'nor shall any State deprive any person of life, liberty or property.' Ain't I a person? Ain't this my life? Ain't I got rights?" Tony had never read the 1851 speech delivered by the African American abolitionist Sojourner Truth marked with the refrain, "Ain't I a Woman?" His cry, like hers, arose from the heart of his own experience of frustration and injustice in a system that treated him not as a person who could feel pain and loss and desperation, but as an object.

The TPR that brought our team into this case seemed to have had a vicious domino effect on Tony's life. The TPR was a knee-jerk reaction to a new law, the Adoption and Safe Families Act, but it bore no rational relation to Tony's developmental needs. Tony was an articulate thirteen year old, and he made a persuasive case that a TPR at this late date simply made no sense. He said, "I don't need an adoptive mother. I got a mother-the one sitting right here," and he pointed to his mother sitting next to him. He admitted his mother was not capable of caring for him and his sister, but he had a plan and it made sense to him. "In four more years," he told us, "I'll be going to college. I'll get me an apartment and my Mom and my little sister can come live with me." Perhaps his plan was unrealistic, but he had given it a lot of thought. He didn't want to be adopted by some stranger. He wanted to get an education and a job and make a home where they could be together as a family.

Tony's longtime foster mother understood and had supported Tony in his efforts to resist the TPR. A few weeks after our meeting, the state agency suddenly decided that her home was "out of compliance" with its regulations. Tony's social worker called him one morning and instructed him to put his and his sister's belongings in a bag and bring them to school. She explained that he was being moved to a "respite shelter" and she wanted to avoid a scene with his foster mother. Tony refused. He knew enough about bureaucratic double talk to suspect that respite was a synonym for limbo and that the caseworker was up to no good. Like any sane person would, he demanded to know where he was being sent, and why. He demanded a chance to state his objections to the move and told the caseworker that, if she wanted him, she would have to come and get him.

Tony was courting disaster. Technically, by refusing to follow orders, he could be designated as "ungovernable," and subject to detention in a locked facility. If he resisted physically he could be charged with assault of a government official-a felony. For a child in state custody, being sent from the "dependency" system into the "delinquency" system signals the end of childhood. While adults cannot be evicted for failure to pay rent without being given a court hearing, in many states a child can be sent away from a foster home without a hearing, for any reason or no reason at all.

Tony's complaints about the foster care system had begun long before the state's filing of the TPR. Why, he asked me, had the state not made any attempt to locate his father during the nine long years that he had been in foster care? A few years before we spoke, on his own initiative, Tony had found out who his father was and where he was living. He had telephoned him in another state, and they had talked. Before they could meet, however, his father passed away. Tony had another question. As his father's sole survivor, he was entitled to Social Security survivors' benefits. He wanted to save for college, he told me, but the checks were being taken by the state. How could the state just take his money, he asked? And how come the state said he could not visit his paternal grandfather who had invited him to spend some time down south with his cousins? His grandfather had sent him a ticket. Shouldn't Tony have a right to visit his own grandfather?

Dr. Annie, the child psychiatrist leading our team, asked him gently, "Why is it so important to you to know your grandfather, or your father, for that matter? Why does it matter so much to you?" He looked at her as if she had lost her mind. But he tried to answer her strange question.

"You know, a person wants to know where he comes from. He wants to know his roots. Sometimes, when I was a young 'un, I used to cry and say, 'Where's my Daddy? Where's my Daddy?' It tore me up inside. I want to see my Granddaddy so he can tell me about him-what my Daddy was like as a boy; how it was when he was coming up." He paused and looked down at his hands. "Sometimes, I just feel ... kinda' ... mad ..."

Tony's face crumpled and he broke down in bitter tears as he tried to explain how much this lost relationship meant to him. Of course he was angry. Anyone would be angry after what had happened to him. Nine years when maybe he could have lived with his own father, instead of in foster care, were gone forever. He was being kept from knowing his only living male relative and now he was about to lose his mother. No wonder he asked, "Ain't I a person? Ain't I got rights?"

There are too many Tonys. At any given time, there are over half a million children in foster care in the United States and half of these are twelve or older. Most Americans are vaguely aware of the existence of this system. They read about it in the newspaper or see stories on TV of kids killed, lost, starved, or abused, and they are shocked. They imagine that shows like Judging Amy, where foster children are listened to and treated with respect, reflect real life. Most would be astonished to learn that abused and neglected children in state custody have fewer rights than accused criminals. While a long line of Supreme Court cases has addressed the rights of adults to counsel when taken into state custody, to protection of their property from unjust takings, and to protection of their familial ties, the Supreme Court has never held that a foster child has a right to legal representation, a right to speak in his own court case, a right not to be deprived of property without due process, or a right to contact with his family. The situation of children in foster care is but one example of our failure to recognize and protect the human rights of American children. One questioner at a recent lecture responded to Tony's story by saying, "This is a horrible, tragic story. But isn't the answer to fire all the people who messed up and hire people who will do a good job?" This answer is too simple-it has been tried, over and over, and has failed. Despite the systemic flaws in the child welfare system that are so evident in Tony's story, I believe the system is filled with hard-working and dedicated people. They carry heavy caseloads, lack adequate funding, and get little pay and no respect for doing one of the most difficult jobs ever invented. How can we expect them to succeed at protecting our children when we, as a people, devalue children and deny recognition of their basic rights?

We like to think of ourselves as a young and forward-looking nation. As Americans, we are proud of our nation's role in extending rights beyond the narrow circle of landed gentry to working people, people of color, women, and ethnic and religious minorities. American children and youth have played an important role in the struggle for a more perfect union, from revolutionary and civil wars, to the antislavery and women's suffrage movements to the civil rights, disability rights, and labor movements. Yet they are still waiting for rights of their own. Formalization of children's rights in the United States has been stalled for decades in superficial debates that pit conservatives against liberals and parent advocates against advocates for children. The purpose of this book is to spark public debate about the meaning of rights for children and to force a closer examination of our national resistance to children's rights. I use dramatic narratives about children, drawn from both historical and contemporary sources, to give meaning to the abstraction of rights for children and show how American children have earned their claim to rights.

The story of children's rights has been "hidden in plain sight." History has been purged of stories about children's agency and voice that make adults uncomfortable. Adults do not like to advertise the pivotal role played in American history and culture by acts of youthful defiance. We are more comfortable with George Washington's confession ("I did it with my little hatchet") than with Ben Franklin's precocious political activism. At sixteen Ben was publishing satires that infuriated the Boston censors and at seventeen he was a fugitive from justice, breaking the terms of his apprenticeship and lying his way into a job in Philadelphia.

History has also been purged of stories about children's suffering and exploitation that adults find too disturbing. Like stories about slavery, stories about children's real lives are prettified to make them more palatable. But the fact remains that this nation was built with the sweat of children, many of them enslaved or serving long terms of indenture. Children fought in our wars, toiled in our factories, marched on picket lines, and went to jail for civil rights.

Some of the child protagonists profiled in this book grew up to become famous men and women. Others lived and died in anonymity. By weaving together in each chapter the stories of famous and unknown children, the book presents children, both as individuals and as a group, as leaders in the American struggle for justice. These stories lay the foundation for a new conversation about the meaning and purpose of children's rights. A deeper understanding of children's rights can open a deeper discussion in America about human rights, by expanding the notion of rights to encompass dependency and difference as well as liberty and equality.

It is an American tragedy that Ben Franklin's homeland is now the only civilized nation where a twelve-year-old like Lionel Tate could be sentenced to life in prison without parole. While children's rights have gained universal acceptance around the world, the American debate about rights for children is polarized and mired in simplistic imagery. One reason is simply a failure of imagination. Rather than envisioning children marching against racial discrimination or unsafe working conditions, the typical American tends to think of children's rights in very personal terms, as involving children seeking liberation from parental authority. Adults laugh uneasily and joke about children refusing to take out the garbage or even hiring lawyers to "divorce" their parents. Concerns about the balance of legal rights within the family, and in contexts such as divorce or custody where family members ask courts to resolve their disputes, while difficult and important, are the topic for a different book.

Children's rights, and this book, are about something far more serious than children hiring lawyers to sue their parents or refusing their parents' reasonable commands. This book is about children's human rights in relation to the power of the state. While the children in this book may sometimes be at odds with their parents, the primary focus of these stories is the systematic denial of children's basic human rights. The children profiled in this book have been indentured and sold into slavery, denied equal education, persecuted for religious and gender differences, physically and sexually abused, exploited by employers, excluded from court proceedings, and separated from their homes and families without due process of law. These children, side by side with their elders, have been leaders in the struggle against oppression and injustice, playing important roles in American movements for fair labor practices, women's equality, and civil rights.

(Continues...)

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Excerpted from Hidden in Plain Sight by Barbara Bennett Woodhouse
Copyright © 2008 by Princeton University Press. Excerpted by permission.
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