Blatz, Kathleen

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Mitchell Hamline School of Law

William Mitchell Law ReviewVolume 26 | Issue 3 Article 62000Children and the Law: Keeping an Eye on theChildKathleen BlatzFollow this and additional works at: http://open.mitchellhamline.edu/wmlrThis Article is brought to you for free and open access by the Law Reviewsand Journals at Mitchell Hamline Open Access. It has been accepted forinclusion in William Mitchell Law Review by an authorized administratorof Mitchell Hamline Open Access. For more information, please contactsean.felhofer@mitchellhamline.edu.© Mitchell Hamline School of LawRecommended CitationBlatz, Kathleen (2000) "Children and the Law: Keeping an Eye on the Child," William Mitchell Law Review: Vol. 26: Iss. 3, Article 6.Available at: http://open.mitchellhamline.edu/wmlr/vol26/iss3/6CHILDREN AND THE LAW:KEEPING AN EYE ON THE CHILDThe Honorable Kathleen BlatztFor the last twenty-five years, Americans have declared war oncrime. As a result, legislatures across the country have builtprisons, substantially increased sentences for offenders, anddevoted more resources to combating violence.' Minnesota hasbeen no exception to this national trend. 2 Our state's taxpayerscurrently spend more than one billion dollars a year on thecriminal justice system.3 Due to these increased expenditures, wehave more police, more prosecutors, and more probation officers.4Predictably-and as demanded by the citizenry-we have morearrests and more people in local jails and prison.5 In the courtsalone, our major criminal case filings rose more than 700% in thet The Honorable Kathleen Blatz is Chief Justice of the Minnesota SupremeCourt. The author would like to thank the following persons for their invaluablesupport to this article: Katie Golden and Val Gunderson.1. See, e.g., BUREAU OFJUSTICE STATISTICS, U.S. DEP'T OFJUSTICE, KEY CRIME &JUSTICE FACrs AT A GLANCE (last revised May 8, 2000) <http://www.ojp.ussdoj.gov/-bjs/glance.htm> [hereinafter CRIME & JUSTICE FACTS AT A GLANCE] (graphingtrends since the 1970s and 1980s in crime, correctional populations, andexpenditures); John Clark et al., "Three Strikes and You're Out". A Review of StateLegislation, RES. BRIEF (National Institute of Justice, U.S. Department of Justice,NCJ 165369), Sept. 1997, available at 1 <http://www.ncjrs.org/pdffiles/-165369.pdf> (discussing enhanced sentences).2. See MINNESOTA DEPARTMENT OF FINANCE, 2000-01 BUDGET AT A GLANCE:CRIMINAL JUSTICE (October 1999) (visited May 25, 2000) <http://www.finance.-state.mn.us/sbs/pdf/2000criminaljustice.pdf>.3. See id.4. See Memo from Honorable Daniel H. Mabley, Chief Judge, FourthJudicial District to Honorable Kathleen Blatz, Chief Justice, Minnesota SupremeCourt at 2-3 (Feb. 22, 1999) (on file with the Minnesota Supreme Court).5. See MINNESOTA DEP'T OF CORRECTIONS, COMMUNITY PRESERVATION (statingthat the Minnesota prison population, numbering 1,200 in the early 19 7 0s, isexpected to total more than 7,000 inmates by 2006) (on file with the author); seealso NATIONAL INST. OFJUSTICE, Franklin E. Zimring, Lethal Violence and the Overreachof American Imprisonment 1, 4, in RESEARCH REPORT-Two VIEWS ON IMPRISONMENTPOLICIES, NCJ 165702 (July 1997) (visited May 25, 2000) (http://www.ncjrs.org/-pdffiles/165702.pdf> (noting that there were five times as many people in prisonin 1996 as there were in 1973).1Blatz: Children and the Law: Keeping an Eye on the ChildPublished by Mitchell Hamline Open Access, 2000WILLIAM MITCHELL LAW REVIEWlast twenty-five years."However, for all of our efforts to combat crime, our likelihoodof being the victim of a violent crime in 1998 was nearly the same as7it was in 1975. In other words, each person's chance of being avictim is the same today as it was twenty-five years ago. This is ashocking statistic. If we have significantly increased resources, whyare we failing to make meaningful changes in crime? I believe it is,in large part, because we have failed to make the child protection8system-the feeder system to the adult criminal system-a priority.Children who first come to our courts as abused and neglectedvictims have a much greater chance of returning as juveniledelinquents, and a much greater chance of returning as adultoffenders. This is not an excuse for serious criminal behavior, butit is a reality that the public and those of us whose lives revolvearound criminal justice must confront. A person experiencingchildhood abuse and neglect is 53% more likely to be arrested as ajuvenile, 38% more likely to be arrested as an adult, and 38% morelikely to commit a violent crime.9 Should it come as a surprise thatchildren who witness and experience multiple acts of violence in6. See Minnesota Supreme Court Research & Evaluation, Sept. 13, 1999 (onfile with the Minnesota Supreme Court); see also NATIONAL CENTER FOR STATECOURTS, A NATIONAL PERSPECTIVE/COURT STATISTICS PROJECT ANNUAL REPORT-1998 (visited May 15, 2000) <http://www.ncsc.dnu.us/divisions/research/-cssp/csp98-sccf.html> (detailing trends in state court filings from 1984 to 1998).7. See MINNESOTA DEP'T OF PUB. SAFETY, BUREAU OF CRIMINAL APPREHENSION,MINNESOTA CRIME INFORMATION 1998, 54-55; cf. MIcHAEL D. MALTZ & MARIANNE W.ZAWITZ, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PUB. NCJ 167881,DISPLAYING VIOLENT CRIME TRENDS USING ESTIMATES FROM THE NATIONAL CRIMEVICTIMIZATION SURVEY (June 1998) <http://www.ojp.usdoj.gov/bjs/pub/-dvctuex.htm> (showing a slight decline in violent victimizations from 48.5 per1,000 people in 1973 to 42 per 1,000 in 1996); CRIME &JUSIcE FACTS AT AGLANcE,supra note 1.8. Sadly, for all our talk about needing to protect vulnerable children, thetruth is that the Minnesota Department of Natural Resources does a better job oftracking the number of deer in our state than the combined forces of the judicialand executive branch do in tracking the number of children in child protection.See Samuel Hughes, The Children's Crusaders, PA. GAZETrE, May/June 1999, at 22,27.9. See COORDINATING COUNCIL ON JUVENILE JUSTICE AND DELINQUENCYPREVENTION, COMBATING VIOLENCE AND DELINQUENCY: THE NATIONAL JUVENILEJUSTICE ACTION PLAN, at 66 (Mar. 1996) [hereinafter ACTION PLAN]. This is afrightening statistic in that more than half of all violent adult offenders initiatetheir violence between ages 14 and 17. See OFFICE OF JUVENILE JUSTICE ANDDELINQUENCY PREVENTION, GUIDE FOR IMPLEMENTING THE COMPREHENSIVE STRATEGYFOR SERIOUS, VIOLENT, AND CHRONICJUVENILE OFFENDERS 3 (James C. Howell ed.,1995).[Vol. 26:32William Mitchell Law Review, Vol. 26, Iss. 3 [2000], Art. 6http://open.mitchellhamline.edu/wmlr/vol26/iss3/62000] CHILDREN AND THE LAW: KEEPING AN EYE ON THE CHILD 627the home are twice as likely to commit violent acts themselves?0 Ithink not.Until we do a better job of recognizing the link between thetreatment of children and criminal violence, we will never makemeaningful reductions in crime. Recognizing this connectionshould not be a source of despair. While a disproportionatenumber of abused and neglected children end up in prison, theconverse is not necessarily true. In other words, many abused andneglected children succeed in life. In addition to their personalstrength and life choices, these resilient children have commonfactors that may be important. One key characteristic insuccessfully surviving an abusive childhood is having a close bondwith a caregiver early in life." Another is the involvement of atleast one significant person in that child's life who accepts him orher unconditionally. Thus, when the child protection systembecomes involved in a child's life it needs to foster these strengths,encourage positive links, and not act as a barrier to permanence.Our awareness of these important connections-between theabuse of children and crime, and between children at risk andloving mentors-should provide both an impetus for change and ameans for changing. In other words, if the system acts quickly andeffectively at the first signs of trouble, we may be able to break thecycle of violence and steer many more at-risk children onto asuccessful pathway. I believe we can do this by keeping our eye onwhat really matters: the child. This means focusing on the deliveryof services to the child, first and foremost.There are a number of ways to begin changing the childprotection system to ensure we take action when we first becomeaware of a child in need. For one, we must challenge the statusquo and seek better ways to meet the needs of children and theirfamilies. To do this we must be open to criticisms and be willing toallow some sunshine in. An ongoing pilot project to open child10. See ACTION PLAN, supra note 9, at 66. One of the articles in this issue alsonotes the impact of domestic violence on children. See Nancy Ver Steegh, TheSilent Victims: Children and Domestic Violence, 26 WM. MrrcHELL L. REV. 777, Part II.E(2000).11. See NATIONAL INST. OF JUSTICE RESEARCH REPORT, BREAKING THE CYCLE,1994, available at <http://www.ncjrs.org/txtfiles/break.txt>.12. See Jean Baldwin Grossman & Eileen M. Garry, MENTORING-A PROVENDELINQUENCY PREVENTION STRATEGY, (Office of Juvenile Justice & DelinquencyPrevention Bulletin, April 1997), available at <http://www.ncjrs.org/txtfiles/-164834.txt>.3Blatz: Children and the Law: Keeping an Eye on the ChildPublished by Mitchell Hamline Open Access, 2000WILLIAM MITCHELL LAW REVIEWprotection hearings to the public is just one example of suchefforts. We are now beginning our third year of a three-year pilotproject to open many of these hearings.' For the last century inMinnesota, the stories of children involved in our court systemcould not be told because all proceedings in juvenile protectionwere closed to the public. If opening these hearings to the publicdoes not harm the child, our careful scrutiny of the system will helphold it accountable to the people it serves and ensure that ourneediest children do not languish as they pass through it. Two ofthe articles that follow, authored by the Honorable Heidi Schellhas,Juvenile Court Judge in Hennepin County, and by Susan Harris,Assistant Washington County Attorney, discuss this issue in greaterdetail.14Second, we need to continue the public debate about whetherfamilies should be preserved at all costs. A focus on reunificationof children and parents must not be blind to the devastating resultsof countless disruptive placements. Children need stability, safety,and permanence. Bouncing a child from stranger to stranger,from one parent to another and back again, undermines these verygoals of child protection intervention. As participants in thesystem, we need to be mindful at every turn that children must notbe sacrificed at the altar of family preservation.In an attempt to address this problem, Minnesota has enactedlegislation to provide for concurrent permanency planning.15 Thisnew approach to child protection and permanency is an importanteffort to see time through the eyes of a child. Historically, childrenwere placed in foster care while significant efforts were expendedto reunite them with their parents. Subsequently, if reunificationwas deemed unsuccessful, the efforts then turned to findinganother home for the children. Under a concurrent permanencyplanning program, these two planning tracks occur simultaneouslyto prevent multiple placements of children if reunification effortsfail. The articles by State Senator Jane Ranum and Brian Guidera,Division Manager of the Children and Family Services Departmentin the Hennepin County Attorney's Office, discuss concurrent13. See Amended Order Establishing Pilot Project on Open Hearings inJuvenile Protection Matters, File No. C2-95-1476 (Minn. Feb. 5, 1998).14. See Heidi Schellhas, Open Child Protection Proceedings in Minnesota, 26 WM.MITCHELL L. REv. 631 (2000); Susan Harris, Open Hearings: A Questionable Solution,26 WM. MITCHELL L. REv. 673 (2000).15. SeeMINN. STAT. § 260C.213 (Supp. 1999).[Vol. 26:34William Mitchell Law Review, Vol. 26, Iss. 3 [2000], Art. 6http://open.mitchellhamline.edu/wmlr/vol26/iss3/62000] CHILDREN AND THE LAW: KEEPING AN EYE ON THE CHILD 629planning and its implementation in Minnesota. 16Finally, in Minnesota we recently amended the rules governingchild protection in the courts.17 The purpose of these rules is tosecure safe and permanent homes for children,' provide judicialprocedures to protect and promote the safety and welfare ofchildren, 9 and "provide for a just, thorough, speedy, and efficientdetermination of each juvenile protection matter." "' Importantly,the rules reflect and buttress the statutory changes establishingshorter permanency timelines.2 ' The rules also give judgesincreased control over child protection cases in order to move thecases along and achieve stability for children more quickly.The other articles included herein also address importantchild protection issues such as the Indian Child Welfare Act asdiscussed by Peter K. Wahl, Professor Robert Oliphant's review ofthe burden for custody modification, and Lawrence Schlam'sarticle on third-party custody rights. Bringing these aspects to theforefront and debating their merits is a step in the right directionas we reevaluate and rework the child protection system, with aneye on what is best for the child.I hope our collective discussions will further raise awareness ofthe issues facing the child protection system. But this will happenonly if those of us who are involved ask ourselves the toughestquestions every single day: "Was the system part of the problem, orpart of the solution today?" and "Was I part of the problem, or partof the solution today?" As members of the child welfare system, weneed to put our own practices under a microscope so that we may16. See Senator Jane Ranum, Minnesota's Permanency and Concurrent PlanningChild Care System, 26 WM. MITCHELL L. REv. 687 (2000); Brian J. Guidera,Concurrent Permanency Planning: Implementation In Hennepin County, 26 WM.MITCHELL L. REv. 699 (2000).17. See Order of the Minnesota Supreme Court, No. C4-97-1693 (Dec. 19,1994).18. See MINN. R.Juv. P. 37.02(a).19. See MINN. R.Juv. P. 37.02(c).20. MINN. R.Juv. P. 37.02(f).21. Under federal statutes, permanency plans for children must be decidedwithin 12 months of the date the child enters foster care. See 42 U.S.C. §675(5) (C) (1994). Minnesota's permanency statute is more stringent and requiresa permanency plan be made within 12 months of removal for children age eightand older, and within six months of removal for children under eight years of age.Another important change is the increased control byjudges over child protectioncases. Further, Minnesota requires the mandatory appointment of a guardian adlitem in every child protection case. See MINN. STAT. § 260C.163, subd. 5 (Supp.1999); MINN. R.JUV. P. 62.01.5Blatz: Children and the Law: Keeping an Eye on the ChildPublished by Mitchell Hamline Open Access, 2000630 WILLIAM MITCHELL LAW REVIEW [Vol. 26:3strive to excel in our individual areas. This close-up view andanalysis should not close our eyes to the larger picture. Our fieldof vision needs to recognize where our area of professionalexpertise crosses into other parts of the system, and how we canbetter work together across our invisible, yet often very real,boundaries. By using a wide-angle lens instead of a microscope tokeep an eye on the child, perhaps we can all do a better job ofprotecting the best interests of our children. No less than ourfuture depends on it.6William Mitchell Law Review, Vol. 26, Iss. 3 [2000], Art. 6http://open.mitchellhamline.edu/wmlr/vol26/iss3/6

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