Adolescents in Child Welfare Systems

Abstract

Child welfare systems exist to ensure the safety of vulnerable children, including adolescents. Yet, child welfare systems present the leading example of the legal system’s failure to carve out rights that recognize adolescents’ abilities, capacities, and interests. To complicate matters, child welfare systems must simultaneously serve both parents and their children. As a result, child welfare systems are designed with competing goals in mind, such as (1) children need protection from abuse and neglect, (2) children should have stable and permanent living arrangements, (3) parents are in the best position to care for their children, and (4) abusive and neglectful parents need considerable time and support to become suitable parents. These competing goals mean that children’s interests may conflict with those of their parents; they also mean that both parents and children’s interests may conflict with those of child welfare agencies. This chapter examines how these goals work with the developments in constitutional rights. That examination highlights two general types of rights: the right to be left alone and the right to be protected, which are understood as distinctions between negative and positive rights. The cases in this area reveal how the Constitution and the Court embrace negative rights and reject positive rights. That embrace particularly guides the development of child welfare systems, including the government’s power to monitor families, parents’ obligations to affirmatively protect their children, and the government’s power to protect parental rights.