What’s Best for the Children? : Gregory K. and other cases have bolstered children’s rights. But, some say, instead of relying on legal remedies we should increase public support of the American family.

Billy’s mother was frequently drunk and had difficulty controlling her 13-year-old son. Then she discovered a sure-fire technique: She committed him to a mental hospital near their Bay Area home. He remained locked up for 2 1/2 months, even when doctors declared the boy was the more stable of the two.

No one but his mother had the right to release him.

Finally last year, Billy ran away. Through friends, he located Legal Services for Children, a San Francisco law firm that provides free attorneys to children. Lawyers helped a sympathetic neighbor become Billy’s legal guardian and release him from the institution’s and his mother’s authority.

“If it wasn’t for you, I’d still be there,” Billy told his lawyers. “I’d have committed suicide.”

In a more publicized case last month, Gregory Kingsley, 12, faced an uncertain future in a series of foster homes after Florida state officials delayed terminating the parental rights of a mother he barely knew. With the help of his foster father and his own attorney, he won a lawsuit to sever ties with his mother, thus freeing him for permanent adoption.

Like many thousands of children in the United States, both boys were seemingly failed first by their parents, then by institutions meant to help them. Unlike most of the others, they lucked into a better life.

But while cheering such individual cases, many observers worry they signal a dubious prospect for the advancement of children’s rights--and a sorry solution to the nation’s broken families and social systems. Rather than resort to the courts, they say, what’s needed is more money for family preservation programs and stronger public policies that help families.

Said David Blankenhorn, director of the Institute for American Values, a nonpartisan New York think tank on family issues: “The children’s rights model is based on the idea that children suffer from arbitrary, discretionary, sub-legal adult authority and that they need due process rights, including the right to sue, in order to free themselves from adult authority.

“The problem is children in America aren’t suffering from too much adult attention,” he said. “They are suffering from too little. The idea that we can solve the problem by letting them sue is very naive. It’s such a particularly American solution.”

Yet, a new and small breed of “pediatric lawyers” argue that in an era of declining resources, children desperately need more legal rights, including giving them a say in defining their own “best interests.”

“We need more lawyers and we need more people who will listen seriously to kids who say they were abused and mistreated,” said Mark Soler, executive director of Youth Law Center, a public interest law firm in San Francisco. Two years ago, his firm won a case against Orange County Juvenile Hall over conditions in which children were stripped to their underwear and tied to beds for 10 to 12 hours at a time.

Soler said his center frequently receives letters in brown envelopes or calls from public phones from social workers or probation officers reporting abuse of children. They feel they cannot speak openly because they are hamstrung by regulations, politics and budgets, he added.

Too often, children are never consulted in cases of adoption, custody, termination of parental rights or child abuse, said Howard Davidson, director for the Washington-based Center on Children and the Law. “You have judges with the responsibility of balancing the interest of parents, whose interests are often in conflict. You have child welfare agencies whose operations are often limited by budget constraints. You have kids like Gregory, thousands and thousands of them, who fall through the cracks.

“All too often they don’t have a say at all in matters that will affect their entire lives,” he said.

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Until modern times, children had virtually no rights in their families. According to Thomas A. Nazario, professor of law at the University of San Francisco Law School and author of “In Defense of Children,” fathers in ancient Rome could legally kill their children--based on the reasoning that those who gave life could also take it away.

In 17th-Century England, protection laws started to focus mostly on providing government support for poor children. Abused and neglected children continue to receive most of the attention.

In 1967, what legal experts consider the most important case for children’s legal rights, the landmark Gault decision, won minors the same rights as adults in due process. In that case, a boy, accused of making lewd telephone calls, had been sentenced to seven years in the juvenile detention center without having an opportunity to tell his side or make an appeal.

Since then, children’s legal rights have been lurching forward and backward in a tug of war with grown-ups who don’t want to concede any more parental authority.

On one hand, many states have abolished “family immunity laws” and children not only have the right to food, clothing, shelter, medical care, a free education, a right to be supervised and inheritance rights--but also a right to sue their parents for mistreatment.

In one case five years ago in San Jose, an 8-year-old child received a $1-million settlement because as a toddler, he bit an electrical cord, destroying his tongue and vocal cords while his mother wasn’t looking. The parents’ insurance company paid, Nazario said.

Children can also collect damages from their parents for broken promises to pay for their college education. In addition, a new California law that takes effect next January allows children as young as 12 to petition for a legal guardian to replace their parents.

On the other hand, recent Supreme Court decisions appear “quite hostile to children’s rights,” said Soler of the Youth Law Center.

In recent years, the court has upheld school administrator’s rights to search lockers without requirements for probable cause. It has also decided in favor of social workers who were unable to save a child from brain damage even though its mother had reported the father for child abuse several times.

Unlike adults, juveniles are not allowed jury trials. Their parents can legally strike them. If they work, their parents can garnish their wages.

Children as young as 16 can be executed in some states.

Even in states where laws have been passed to give children a say in custody or abuse matters, they are rarely enforced and then only at the whim of the judge or the court-appointed attorney, advocates say. Attorneys debate whether they should represent the child’s “best interests” or the child himself.

Gregory Kingsley, now calling himself Shawn Russ, had a court-appointed guardian who was supposed to help him resolve his case after 18 months in foster care, but reportedly never spoke to him during the 30 months the boy was in the system. Attorneys say that situation is not uncommon.

“We’d like to see clear mandates that instruct lawyers to allow a kid to direct them if a kid is competent,” said Jeth Gold, a social worker with Children’s Legal Services.

His firm always treats children like adults, he said. Even when the youths turn to the lawyers for advice, he said, “we’ll advise them on their options then tell them, ‘It’s up to you.’ ”

Critics of expanding legal solutions point not only to the erosion of parental authority, but also the possibility of unscrupulous lawyers. Writing in October issue of Harper’s magazine, historian Christopher Lasch said, “When outsiders side with the child against parental authority, they gain his confidence only to abuse it for their own purposes.”

Parental authority “is obviously open to terrible abuse,” writes Lasch, a social critic who once proposed outlawing divorce. “But (it) at least acknowledges children’s weakness and vulnerability. The notion that children are fully capable of speaking for themselves, on the other hand, makes it possible for ventriloquists to speak through them and thus to disguise their own objectives as the child’s.”

Those who emphasize stronger families and social institutions say too much has been made of the unique legal aspects of Gregory’s case, and not enough of the poverty, substance abuse, physical and sexual abuse that has caused nearly half a million children to be removed from their homes.

Legal solutions don’t come close to solving these children’s real problems, say advocates who want to expand children’s “rights” to include quality education, adequate financial support, universal health care, and to be well-loved and well-parented by a mother and a father.

“The issue is not so much the rights of children but the duties of parents and citizens and the community as a whole,” said William Galston, professor of public affairs at the University of Maryland, College Park, and a family issues adviser to presidential candidate Gov. Bill Clinton.

“The collapse of responsibility and neglect is the main reason these sorts of desperate remedies seem to become plausible in the first place. If we want to ward off a situation in which lots and lots of minors have lots of lawyers defending lots of rights, we cannot allow (families and community supports) to crumble.”

Families are not the only institution that needs to be fixed. Child welfare agencies and the courts are choking on rising caseloads. (In 1990, 108,000 abused children were referred to the Los Angeles County Department of Children’s Services, up 44% from 1984.)

Worst of all, the foster care system has functioned so poorly over the past 10 years that it has led to an “explosion” of mental illnesses among children bounced from home to home, Galston said.

The reason is a federal funding scheme that encourages states to remove children from their homes rather than to help troubled parents overcome their problems and keep their children, he said.

Currently, the government spends $2.3 billion a year on foster care compared to about $300,000 for family preservation programs, according to Davidson. New federal legislation that has passed both the House and the Senate proposes to allocate $2.5 billion over the next five years for family preservation programs.

Meanwhile, the “pediatric lawyers” continue to rescue individual children, winning for them basic medical and mental health care, and, in the process, carving out for them more civil and privacy rights.

Legal advocates hope the Gregory Kingsley case will serve as a catalyst for more free legal service centers like San Francisco’s Legal Services for Children or the new Los Angeles-based Alliance for Children’s Rights.

The Los Angeles group uses a small staff and mostly volunteer lawyers to provide free legal services to infants through young adults. In one case, they are helping grandparents to adopt their 5-year-old grandson, whose father killed his mother then committed suicide.

Founder Pamela Mohr is also preparing brochures aimed at foster children, or those in group homes, to explain their rights. “Very few children have any idea what their rights are.”

Similarly, Legal Services for Children has been helping children like Billy for 17 years. His former neighbor who became his guardian is a machine operator who said he was abused as a child also. “When I grew up, there was nothing like children’s legal services,” he said. “We had to go back home and take it.”

Billy says he is happy now and hopes never to see his mother. “Not in my life. Not in her life.”

Legal Services director Christopher Wu says it is a “big myth” that lawyers are waiting to take on kids as clients, or that the Gregory Kingsley case will lead to frivolous lawsuits against parents by cranky or unruly children. For one thing, he said, “kids don’t have money to hire lawyers.”

Moreover, he said, “We’ve been here for 17 years and I have yet to have a kid call up and say I want to leave my parents’ home because they didn’t buy me a Nintendo.”

More likely, attorneys say they will be arguing for children’s rights in the highly emotional arena of teen-age sexuality, parental consent for abortion and medical treatment, and custody and visitation rights within non-traditional families.

“Suppose for example, a child is terminally ill and they decide not to go through treatment any more,” said Mohr. “Yet, their parents love them desperately and want to do everything they can. What right does a parent have? When does a child have the right to say no more?”

Mohr said he has had several cases of children who are living with a grandparent, a single parent or foster parents. “What right do children have to request visitation with their half-siblings? These are issues nobody has explored.”

In Florida, appeals judges will soon decide whether minors can be mature enough to consent to have sex with adults. In two separate cases, judges have already ruled against relatives of girls under age 16 who brought statutory rape charges against men, 20 and 21.

In California, lawyers are arguing for teen-age girls to have unrestricted rights to abortion. In 1987, the state Legislature passed a statute that would have required a girl under 18 to obtain consent from a parent or a juvenile court, but it never took effect. The challenge to the statute, brought by the American Academy of Pediatrics and other health organizations, was recently upheld by a San Francisco Superior Court and is being appealed by the State.

The case could broaden privacy rights for adolescents, said Abigail English, an attorney for the National Center for Youth Law in San Francisco, who argued the case. “Those rights are as important as rights for adult women,” she said.

One lawyer who works with abused children accused of killing a parent is pushing the self-defense argument. “Children don’t have the right to defend themselves if a parent is lawfully physically punishing them,” said Paul Mones of Santa Monica. Texas is the only state that formally recognizes a child’s right to present a history of abuse as a defense for murdering a parent, he said.

University of San Francisco professor Nazario believes the frontier of children’s rights belongs to the unborn. He said questions to be decided within the next three decades will probably involve frozen embryos--who will receive custody or provide child support payments if a couple breaks up years down the road?

Nazario believes a child could win a case against parents who didn’t want him or who never offered a kind word.

“Does that child have a right to a hug?” Nazario asks. “Can that child take his parents to court and sue them for affection?

“Some say yes. The argument the child would make is the child had been emotionally neglected and the child should be protected from emotional or psychological neglect. If the court so decided, the child could be removed and given to a family that will love it.”