Parens patriae: A comparative legal study of sovereign authority and public education policy in the province of Ontario and the state of New York
VIM Table of Contents Dedication ii Curriculum Vitae iii Acknowledgements iv Abstract vii Table of Contents viii INTRODUCTION xii CHAPTER ONE 1 Parens Patriae: A History A. How the King of England Became Parens Patriae 3 B. How the Court of Chancery Acquired Plenary Custodial Authority 7 C. From Theory to Doctrine: The 19th Century Expansion of Parens Patriae 13 D. Custody as the Right of a Child at Common Law 16 E. Parens Patriae Custodial Authority at the End of the Progressive Era 21 CHAPTER TWO 29 The Jurisprudential Context: Supreme Court Decisions in the United States and Canada A. Custodial Decisions in the Progressive Era 29 B. Custodial Decisions from the Lochner Era to the Civil Rights Era 39 C. The Watershed Opinion: Wisconsin v. Yoder (1972) 65
IX D. ThePost-Yoder/Pre-CharterEra, 1972-1986 70 E. Custodial Authority in the Post-Charter Era, 1986-2008 89 CHAPTER THREE 135 Judicial Interpretation and Application of the Doctrine of Parens Patriae in Ontario and New York The Curial Landscape: The Province of Ontario 135 The Provincial Court System Custodial Authority in Ontario The Curial Landscape: New York State 141 The State and Federal Court Systems Custodial Authority in New York State Post-Yoder Custodial Decisions in Ontario and New York: 147 A. Custody Orders 151 Who shall rear this child? The Ontario Provincial Courts 153 The New York State Courts 161 Custody Orders: A Comparative Summary 185 B. Custody and Mobility Decisions 189 Where shall this child be reared? The Ontario Provincial Courts 189 The New York State Courts 198 Custody and Mobility Decisions: A Comparative Summary 200 C. Alternative Dispute Resolution 202 Who shall have the final authority in custodial disputes? The Ontario Provincial Courts 202 The New York State Courts 206
X Alternative Dispute Resolution: A Comparative Summary 210 D. Child Support Orders 212 Who shall defray the private costs of childrearing? The Ontario Provincial Courts 214 The New York State Courts 222 Child Support Orders: A Comparative Summary 224 E. Adoption Orders 226 Who shall rear this child? The Ontario Provincial Courts 226 The New York State Courts 234 Adoption Orders: A Comparative Summary 241 F. Wardship Orders 245 Who shall rear this child? The Ontario Provincial Courts 247 The New York State Courts 262 Wardship Orders: A Comparative Summary 278 CHAPTER FOUR 284 Normative Considerations Part I: Principles Underlying the Exercise of Plenary Custodial Authority by Agents of the State as Parens Patriae 285 Part II: Substantiating the Principles Underlying the Exercise of Plenary Custodial Authority by Agents of the State as Parens Patriae 287 Part III: A Significant Difference 330 CHAPTER FIVE 349 Theory and Policy Implications Part I: Libertarian and 'Group Rights' Claims from a Parens Patriae Perspective 349
XI Part II: Homeschooling from a Parens Patriae Perspective in New York and Ontario 363 Conclusion: Homeschooling and the Limits of Sovereign Authority in New York and Ontario 389 Epilogue 396 Addendum 398 REFERENCES 399 Appendix A: METHODOLOGY I: How to Write a Case Brief 428 Appendix B: METHODOLOGY II: Comparability 444 Appendix C: METHODOLOGY III: Comparative Law 449 Appendix D: Included and Excluded Decisions Featuring the Key Terms 'Parens Patriae'' and 'Education' 456 Appendix E: On DeShaney v. Winnebago County (1988) 497
XII INTRODUCTION The judiciary is amazingly understudied, even though it is ubiquitous in the regulation of public education. - Chester E. Finn, Jr.; quoted by Walsh (2008, p. 9) According to Randall Curren (2006), key debates amongst liberal philosophers of education over the past decade have revolved around "the balance that must be struck between 'respecting the autonomy of parents (whose conception of the good may include raising their children a certain way), and protecting or nurturing the autonomy of children,' autonomy being regarded as a limited and socially conditioned capacity to determine how to live one's life" (p. 454; quoting Brighouse & Swift, 2003, p. 361). Yet many of the most prominent contributors to debates on public and private educational authority have not explicitly taken into account the common law doctrine by which the protection and promotion of children's welfare and developmental interests have long been judicially recognized as a sovereign duty. In this study, I compare how courts in the Province of Ontario and the State of New York have interpreted and applied the doctrine of parens patriae, the mechanism by which the state exercises plenary custodial authority in the welfare and developmental interests of children and other legally incompetent persons within its territorial jurisdiction. In regulating custody, the state as parens patriae determines which persons shall exercise legal authority to make decisions on behalf of a particular child. This is public educational authority in its most
XIII compendious and clearly formative sense, because parenting or rearing or educating a child - 1 use these terms interchangeably - necessarily entails making decisions that will have profound implications for the child's development as an individual and as a member of society. All societies make decisions concerning the institutional means by which fundamental values will be reproduced and sustained from one generation to the next. These are educational policy choices. Because such decisions are reflected injudicial opinions in which the scope of parens patriae authority has been addressed, this is a study of sovereign authority and public education policy. Some scholars (Dwyer, 1994; Bartlett, 1989) have suggested that parenting - the education or upbringing of a child - ought to be conceptualized in terms of duties, not rights. Adopting a Lockean view of parental authority, James G. Dwyer (1994) argues that "[n]o one should be entitled, as a matter of right, to control the life of another person, free from outside interference, no matter how intimate their relationship, and particularly not in ways inimical to the other person's temporal interests" (p. 1373). At common law, no one has such a right. Custody is the mechanism by which the state vests childrearing authority in the progenitors of children upon birth certification and in adoptive parents upon the issuance of an adoption order (Goldstein, Solnit, Goldstein & Freud, 1996). Legal parenthood may indeed be "an exclusive status" as Dwyer (2006, p. 254) claims, but only insofar as the law generally recognizes one man as the biological
XIV or adoptive father and one woman as the biological or adoptive mother of a particular child. In casting 'exclusive' authority to control a child's relationships with others as an incident of legal parenthood, Dwyer conflates parentage with parenting. Only persons with custodial authority may legally decide, inter alia, where a child will receive her formal education, what persons the child will (and will not) associate with, where the child will live, what cultural practices and faith traditions she will experience, and what kind of medical treatment she will receive. Parenting requires custodial authority. "Matters of care, health, education and upbringing are merely incidents of custody or parenting and are within the jurisdiction of the court," wrote Granger J. (para. 24) of the Ontario Superior Court in Harsant v. Portnoi (1990). The custodial authority of parents, whether biological or adoptive, is never exclusive or absolute. The public routinely supervenes when custodial authority is exercised in an unreasonable manner. As the cases examined in this study indicate, custodial unreasonableness (or 'unfitness') is generally defined in terms of unwillingness or inability to prioritize the welfare and developmental interests of a child. This reflects the fundamental moral principle underlying the parens patriae doctrine. In exercising custodial authority ('parenting'), legally competent persons make decisions on behalf of legally incompetent persons. Because individuals in pursuit of their own ends cannot be relied upon to recognize and prioritize the interests of dependent others without public
supervision and assistance, the regulation of custody has long been regarded as a sovereign responsibility - a duty owed to all children as legally incompetent persons. If the regulation of custody in the welfare and developmental interests of children is a sovereign duty at common law, by some accounts of rights and duties, each and every child has a corresponding entitlement to custodial arrangements in which the community as parens patriae plays an active role. As we shall see, this sort of thinking appears to have provided a basis for the enactment of compulsory schooling laws as emanations of parens patriae authority during the Progressive Era. Compulsory schooling laws are a means by which all persons having care and control of a child are required to share custodial authority with the wider community for limited periods of time. The doctrine of parens patriae holds that because the interests served by custody are those of legally incompetent persons - persons without standing to make rights claims on their own - the state must do so. Indeed, if children were competent to safeguard and promote their own interests - if they were legally competent - the concept of parens patriae would be unintelligible. In making custodial decisions, a parent acts as an agent for a child. Likewise, in making custodial decisions, the state acts as an agent for the child. "[I]n its parens patriae role," writes Dwyer (2006), the state acts "as protector of dependent individuals whose interests would otherwise go unprotected - that is,
XVI as fiduciary" (p. 192). This means judges, as agents of the state acting in a parens patriae capacity, must serve as agents for the children whose custodial interests are implicated in any dispute before them. Institutional accounts of legal rights hold that a person with standing to assert claims in a court of law has legal rights to the extent that such claims are judicially cognizable as rights. Yet by virtue of their status as legal incompetents, children whose custodial interests are implicated in disputes brought before the courts of New York and Ontario have an automatically cognizable right to developmentally-appropriate custodial arrangements. In exercising parens patriae authority, a judge is required to make an independent assessment of these interests, to prioritize them above the competing interests of adult claimants, and to make a custody order most likely to safeguard and promote these interests. Accordingly, a child has a cognizable right to developmentally-appropriate custodial arrangements that need not be claimed. "The Judge acting for the State as parens patriae is responsible for protecting the interests of the children which come before him and thus, so to speak, for representing them," wrote Zukerman J. of the Family Court of New York in In re S. (1973, p. 158). "Although theparens patriae concept has been characterized as murky in meaning and dubious in historic credentials the unequivocal essence of the responsibility to the minor is the moral imperative of the fiduciary," wrote Schwartz J. of the Family Court of New York in Janet G. v. New York Foundling Hospital (1978, p. 144). Cardozo
XVII J. of the New York Court of Appeals in the celebrated case of Finlay v. Finlay, (1925) definitively characterized the role of the judge as parens patriae in terms of agency: "The chancellor in exercising his jurisdiction... acts as parens patriae to do what is best for the interest of the child. He is to put himself in the position of a 'wise, affectionate and careful parent' and make provision for the child accordingly." When the custodial interests of a child are implicated in a dispute before the courts, a judge does not exercise the police power of the state to adjudicate legal disputes between competent adults but rather, the judge exercises hex parens patriae duty to safeguard and promote the welfare and developmental interests of the child: "He is not adjudicating a controversy between adversary parties, to compose their private differences. He is not determining rights 'as between a parent and a child' or as between one parent and another. He interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patriae" (pp. 433-434). Dwyer (1994) has proposed that "children's rights, rather than parents' rights, be the legal basis for protecting the interests of children." He has further proposed "that the law confer on parents simply a child-rearing privilege, limited in its scope to actions and decisions not inconsistent with the child's temporal interests" (p. 1374). I agree with Dwyer that parents should be "permitted to perform parental duties and to make certain decisions on a child's behalf in accordance with the child's rights." I also agree that the 'parental rights' doctrine
XVIII enunciated in Yoder is "inconsistent with principles deeply embedded in our law and morality" (p. 1373), but I do so for reasons beyond those offered by Dwyer. While Dwyer based his conclusions on a close reading of U.S. Supreme Court cases including Pierce v. Society of Sisters (1925), Farrington v. Tokushige (1927), Parham v. J.R. (1979), Santosky v. Kramer (1982), Prince v. Massachusetts (1944), Wisconsin v. Yoder (1972), Cruzan v. Director, Mo. Dep't of Health (1990), Wilder v. Bernstein (1988), and Heller v. Doe (1993), he did not recognize that the nature and scope of a state's parens patriae duties were addressed by the Court in all nine cases. Based on his analysis of American constitutional jurisprudence alone, Dwyer concluded that "in a world without parents' rights, but with an appropriate set of children's rights, the law could recognize parents as their children's agents, with the responsibility to assert the children's rights and invoke the necessary institutional mechanisms when actions by third parties threaten the children's interests" (p. 1429). If we add to this 'world' the parens patriae doctrine, by which the public has a responsibility to safeguard and promote children's interests and to invoke the necessary institutional mechanisms when parents threaten these interests, then we have an accurate picture not of what the world ought to be - as Dwyer would have it - but of the common law world as it is. From a. parens patriae perspective, any exercise of custodial authority - public or private - is contingent upon the fulfillment of the attendant responsibilities to the child.
XIX I am not advocating the emancipation of legally incompetent persons. Indeed, I neither propose nor see any need for expanded common law rights for children. The sole right of a child cognizable to judges exercising parens patriae authority remains a right to custodial arrangements that serve the child's independent welfare interests and facilitate the development of the capacities imputed to legally competent persons. Provided parens patriae authority remains robust and constitutional principles are interpreted in a manner consistent with the moral obligation of the state to prioritize the interests of children when these conflict with the interests of others - including their legal parents - the greatest benefits of liberal democratic society will continue to redound to its most vulnerable members. As we shall see, the priority assigned to the developmental interests and temporal needs of children at common law is a matter of fundamental justice transcending individual rights (see Schrag, 1980). In Chapter One, I provide a history of the doctrine of parens patriae, from its roots in seventeenth-century England to its flowering in the United States and Canada in the Progressive Era. By the turn of the twentieth century, parens patriae provided a common law basis for public schooling, juvenile justice, child welfare legislation and compulsory schooling laws. Relying in part on primary sources from the Lochner Era, I show that the upbringing of children was widely acknowledged as a matter of sovereign concern and that education laws compelling all parents to share custodial authority with representatives of the
wider community were not controversial as emanations of parens patriae authority when Pierce was decided in 1925. In Chapter Two, I provide a comparative legal history of the constitutional context in which the courts in the common law states and provinces of the U.S. and Canada exercise parens patriae authority. I present and compare relevant decisions by the U.S. Supreme Court and the Supreme Court of Canada featuring the key terms 'parens patriae' and 'education' in chronological order. In Yoder (1972), Chief Justice Burger described the holding in Pierce as "a charter of rights of parents to direct the religious upbringing of their children" (p. 233). The extent to which the 'parental rights doctrine' enunciated and applied in Yoder was inconsistent with the priority traditionally given to children's interests under the parens patriae doctrine becomes readily apparent when Pierce and Yoder are compared with prior and subsequent U.S. Supreme Court cases likewise featuring the key terms 'parenspatriae' and 'education'. Operating beyond the pale of U.S. constitutional jurisprudence and continuing to apply common law principles for more than a decade after Yoder, decisions by the Supreme Court of Canada serve as an illuminating foil. Shortly after the Canadian Charter of Rights and Freedoms came into full force and effect in 1985,1 Yoder was cited in Canadian The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11
XXI courts by persons claiming 'parental rights'.2 Yet the Supreme Court of Canada has continued to interpret the principles of fundamental justice underlying the Charter in a manner consistent with the priority given to children's developmental interests under the common law doctrine of par ens patriae. In Chapter Three, I examine how courts in the Province of Ontario and the State of New York have interpreted and applied the doctrine of parens patriae when the welfare and developmental interests of children have been threatened by unreasonableness on the part of their custodians. This chapter is structured as comparative law - a systematic comparison of all relevant judicial opinions featuring the key terms 'parens patriae' and 'education' in which courts in the Province of Ontario and the State of New York exercised plenary custodial authority. The cases are grouped according to the circumstances under which the courts were called upon to determine who should (and should not) have legal authority to make decisions on behalf of a child. Most disputes of this nature reduce to a simple question: Who shall rear this child? This question typically arises (a) when custodial authority must be reassigned upon the divorce or separation of biological parents unwilling or unable to make custodial arrangements in the interests of the children born to them; (b) when disputes arise 2 As of May 17, 2009, Yoder has been cited in ten Canadian cases, including four at the Supreme Court of Canada: Syndicat Northcrest v. Amselem (2004), Chamberlain v. Surrey School District No. 36 (2002), B. (R.) v. Children's Aid Society of Metropolitan Toronto (1995) and R. v. Jones (1986). This number pales in significance to the 1,959 U.S. cases in which Yoder has been cited to date.
XXII between custodial and non-custodial parents following divorce or separation; (c) when biological parents voluntarily relinquish custodial authority for the purposes of adoption; and (d) when the state limits or revokes custodial authority upon a finding of abuse or neglect. In the vast majority of cases in which custodial authority must be assigned or re-assigned by a court exercising the parens patriae jurisdiction, custodial 'unreasonableness' (or 'unfitness') is defined in terms of unwillingness or inability to prioritize the developmental interests of a child. It is not necessary to read Chapter Three in order to understand the evidence drawn from it in support of principles identified in Chapter Four. Readers for whom a lengthy and detailed comparative presentation of cases holds little appeal may find it helpful to read the introductory quotation preceding my discussion of each case - quotations which capture the pith and substance of the decision for the purposes of this study. Alternatively, readers may proceed directly to Chapter Four, referring to specific cases in Chapter Three as needed. In Chapter Four, I address implications of the judicial decisions for the exercise of custodial authority in New York and Ontario and, by extension, for children reared in New York and Ontario. I begin by enumerating what I take to be the principles underlying the exercise of plenary custodial authority by agents of the state as parens patriae. I then substantiate the salient features of these principles with evidence gleaned from the judicial opinions reviewed in the preceding chapters. In keeping with the purposes of comparative legal research, I
XXIII examine a significant difference in the interpretation and application of the parens patriae doctrine in New York and Ontario, commenting on implications of political culture for the exercise of sovereign authority and the upbringing of children in each jurisdiction. In Chapter Five, I comment on implications of the principles underlying the exercise of parens patriae authority - what I refer to as a 'parens patriae perspective' - for educational theory and policy. In Part I, I discuss 'parental rights' claims by libertarians and advocates of 'group rights'. These are orientations within political philosophy with which & parens patriae perspective can be most usefully contrasted in educational policy debates. In Part II, I deploy material gleaned from the preceding chapters in addressing a contemporary educational policy issue that has not yet been specifically addressed from a.parens patriae perspective: the regulation of 'homeschooling' in New York and Ontario. I shall then offer, by way of conclusion, some observations on limits to a. parens patriae perspective in liberal theory and to sovereign authority in practice - limits which the growth of 'homeschooling' bring to light.
CHAPTER ONE Parens Patriae: A History The power to protect children and act for their welfare was acknowledged in England at least as far back as the seventeenth century, although the origin of the jurisdiction remains in dispute. It is usually explained as being derived from the Crown's prerogative as parens patriae to protect those of the Crown's subjects who were unable to protect themselves. -Homer Clark (1998); cited by Garner (1999, p. 786) "The King is in legal contemplation the guardian of his people; and in that amiable capacity is entitled...to take care of such of his subjects, as are legally unable, on account of mental incapacity," wrote Joseph Chitty (1820, p. 155). He noted parenthetically that the King's prerogative was a matter of reciprocal obligation, a duty to take care of his subjects in return for their allegiance. Chitty's conception is consistent with the prevailing Lockean conception of legitimate government as a compact between the rulers and the ruled. The people gave their allegiance in exchange for protection of their rights, notably their property rights, which Locke considered coextensive with liberty (Locke, 1764; cited by Ely, 1998, p. 176). But the sovereign duty of the state to protect and promote the welfare of all adult citizens in the exercise of its police power is conceptually distinct from its duty to protect and promote the welfare and developmental interests of all future citizens as parens patriae. Historically, both parens patriae authority and police power were separate Crown prerogatives (see Chitty, 1820; also Dwyer, 2006, p. 195).