I’m sitting and pondering. This rarely results in any kind of answer or epiphany, but it helps the time pass when I sit on the porch to keep speeding cars or otherwise deranged people from harming my children as they insist on playing in the front yard rather than the perfectly good back yard with the swings and fence.
Anyway, tonight I am pondering how the courts handle dependency, neglect and abuse matters. Specifically, why there is no jury in such a court. Criminals, or those alleged to be such, have a Constitutional right to a trial by a jury of their peers (I’ve learned that peers does not mean other criminals though). The argument is that they have the most at stake since they could lose their freedom. Since they have such a basic right at stake, then they are to be afforded maximum protection. Personally, I would rather get locked up in jail and lose my freedom than for my children to be placed out of their home. So, at least for me, the removal of children impinges upon a greater right than a criminal proceeding does. Therein lies the conundrum which I ponder. It is indeed a ponderment (my word, not W’s).
So, why is it that parents who have been bereft of their children have the least of protections? There is no right for a trial by jury. They do have a right to counsel (at least $500.00 worth). But, if they show up in court they can be ordered to do anything before an adjudication ever occurs. For example, even without allegations of drug use, parents are often drug tested. If they test positive for marijuana (which was smoked by many a social worker when I was employed there), their fate is sealed. So, for practical purposes, there is no presumption of innocence. Also, they are interviewed by social workers without any right to remain silent. If they refuse to talk, a petition for non-compliance, which is considered neglect, is filed. If they speak, the social worker can present their words, in or out of context, against them in court.
Now, the stripping of each of the above rights has a reason. Society does not want to allow children to continue to be abused or neglected while their parents hide behind trifles such as the Constitution or rules of evidence. But, the one that I still ponder is the absence of a jury. Supposedly it is because of the need for privacy for the children. However, one look around the crowded courtroom seems to belie that assertion. Besides, there are other ways to maximize privacy even with a jury. Perhaps it is for judicial efficiency. It takes time and resources to empanel a jury. But, adults who are being placed in the guardianship of another due to incapacity or incompetence get a jury – and that does not seem to slow things down much. Most of those “trials” take about fifteen minutes.
Now, one thing juries are supposed to do is bring the community’s values and standards to bear on a given situation. It seems to me that dependency, neglect and abuse actions need this far more than criminal cases. My reason is that the statutes and regulations in Kentucky that define terms such as neglect boil down to saying that neglect is anything that is neglectful, or creates a risk of harm. If anything needs the application of community values and standards it is this kind of non-definition. Compare this to a criminal statute prohibiting theft, which means takings something that you have no right to take. That is more straightforward than saying neglect is – well – neglect and you will know it when you see it (I know, not all criminal statutes are that straightforward, but when there’s murder – we at least know somebody is dead). So, when we most need a cross-section of the community to help define something, they cannot be present.
Instead, we have a single worker who is typically in their mid-twenties and fairly fresh out of school without experience as a parent, representing what is neglectful or abusive parenting to a single judge. Now, this will probably make many folks mad (actually, too late for that), but I have met very few folks fresh out of school, in their mid-twenties, who have never parented, with reasonable ideas of what constitutes neglectful or abusive parenting. Frankly, I haven’t met so many middle-aged parents with lots of life experience that are entirely reasonable either, but a group of jurors would come the closest to a reasonable definition.
That leaves the single judge to carry the burden against an onslaught of hundreds of cases coming through his or her doors on a never-ending basis. From what I have seen, they understandably rely heavily on that social worker and what evidence that person presents (the power a social worker has is a topic for another day). It is a bit of a circular system. It seems to me, as I sit and ponder, a jury could alleviate many of the concerns that arise as Constitutional protections and rules of evidence are relaxed.
All of which brings me back to sitting on the front porch and I begin to ponder a tangential thought (a pondergent). Would a social worker find me negligent for allowing my children to play in the front yard, near a street. Perhaps I should cloister them in the back yard just to be extra safe.