by Paul Engel
- When can government actors make decisions for your children?
- Do government actors have the legal authority to take your children if they do not approve your parental decisions?
- What does a 50 year old federal court case have to do with today’s governmental overreach?
With the recent “approval” of the Pfizer vaccine for 5-11 year olds, many are wondering when the “recommendation” to vaccinate will become a mandate. Do governments have the legal authority to intervene in a family decision? If so, under what conditions? One opinion comes from a case out of the Second Circuit in the 1970s. Understanding the limits of the coercive power of government over families will be important if we wish to remain free.
Parents are responsible for the health and welfare of their children. This fundamental truth should be at the bedrock of family law in America. However, not everyone see things that way. In 1977, the United States Court of Appeals, Second Circuit, confirmed that children are not the property of the state, except in extreme circumstances. The name of this case is Duchesne v. Sugarman.
Duchesne v. Sugarman
Let’s start with the circumstances that led to this case. In December 1969, Pauline Perez had two minor children, Danny age 7 and Marisol age 6 months. On December 16th, Ms. Perez decided she needed to seek medical attention for her emotional problems. Expecting to be treated as an out-patient, Ms. Perez left her two children with a neighbor. Instead, Ms. Perez was admitted to Bellevue Hospital, where she remained for the next six days. The neighbor contacted police, informing them that she could only take care of Ms. Perez’s children for the night as she was about to give birth to her own child. The police relayed this to a welfare center who contacted New York City’s Bureau of Child Welfare (BCW).
On December 17th, a BCW representative visited Ms. Perez in the hospital and asked her to sign a form granting consent to the Bureau to take custody of her children. The Bureau rep. told Ms. Perez that she would not lose any parental rights, and as soon as she was released from the hospital, her children would be returned. However, Ms. Perez refused to grant her consent that BCW take custody of her children. The BCW employee informed his supervisor, James Princeler of Ms. Perez’s refusal to consent. Princeler advised the caseworker that consent was not necessary at that point.
The same day, BCW assumed custody of Ms. Perez’s children, placing Danny in St. Joseph’s Home for Children and Marisol in the New York Foundling Hospital. Records from both BCW and the two institutions indicate that the emergency placement was requested by BCW because the children’s mother was in the hospital. No mention was made that the mother had not given consent and that BCW had not gotten a court order to take custody of the children. This appeared to be in accordance with city policies at that time.
On December 22, 1969, Ms. Perez was released from Bellevue Hospital and immediately contacted a BCW caseworker, demanding the return of her children. Her children, however, were not returned by BCW. Several days later, Ms. Perez voluntarily returned to the hospital until February 1970. Upon her release, Ms. Perez once again contacted BCW for he return of her children. Once again, her request was rejected.
On January 22, 1970, a Deputy Commissioner authorized St. Joseph’s to admit Danny into foster care because of the “mental illness of the person caring for the child.” Then, on March 2nd, a similar authorization was sent to Foundling Hospital for Marisol. This means that the children were no longer in emergency temporary placement, but in long-term and possibly permanent care. On April 29th, the psychiatrist treating Ms. Perez recommended the children be returned to her, one at a time. BCW reported this recommendation to the two child-care institutions, but they objected and the children were not returned.
For months, Ms. Perez repeatedly requested the return of her children, all of which were denied. During this time, the children were not even allowed to visit each other. Then in October 1971, Ms. Perez found out that Marisol had been transferred to a foster home without her knowledge. All of Ms. Perez’s complaints to various authorities that she never signed any papers were apparently ignored.
Records show that as least as of November 10, 1971, BCW, St. Joseph’s, and the Foundling Hospital were aware that Ms. Perez never signed any consent or commitment papers. Apparently they discussed the absence of consent, but decided to take no action unless Ms. Perez initiated legal proceedings. Records also revealed that:
“(s)ince obtaining Pauline’s signature at this point seem(ed) an impossibility, (they) agreed not to attempt it.”
On February 22, 1972, 27 months after her family had been separated, Ms. Perez filed a petition in the New York Supreme Court seeking a writ of habeas corpus (produce the body). Only after Ms. Perez filed her petition did BCW and the two child-care facilities file a neglect action against her. These two actions were combined and heard in Family Court, which denied Ms. Perez’s petition for habeas corpus and found Ms. Perez guilty of neglect. The Appellate Division reversed the Family Court’s decision, finding that the initial removal and continued detention of the children was done in violation of state law due to a lack of Ms. Perez’s consent or a court order. Furthermore, the Appellate Court reversed the Family Court’s finding of neglect because Ms. Perez was denied the opportunity to present evidence in her favor.
This is where the case goes to the Second Circuit.
The threshold inquiry is whether the evidence establishes that appellants have been deprived of a constitutional right. They assert that the removal and detention of the children with neither parental consent nor court authorization, and in the face of the mother’s repeated requests for their return, deprived them of their right to live together as a family without due process of law. The crux of the claim is that appellees could not constitutionally refuse to return the children to their mother’s custody without providing an opportunity to be heard “at a meaningful time and in a meaningful manner.”
Can the state take custody of your children without your consent or a court order? That was the question the Second Circuit was dealing with. As the court stated:
It is beyond peradventure that “freedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”
What is the Due Process Clause of the Fourteenth Amendment?
… nor shall any State deprive any person of life, liberty, or property, without due process of law;
As the court points out, the liberty to live as one sees fit, without governmental interference, can only legally be abridged by due process of law, which the Free Legal Dictionary defines as:
An established course for judicial proceedings or other governmental activities designed to safeguard the legal rightsof the individual.
Some people say the process is the punishment. However, when it comes to the Constitution and laws of the United States and of the several states, the process must protect the rights of the individual. As the Second Circuit noted in their opinion:
Here we are concerned with the most essential and basic aspect of familial privacy the right of the family to remain together without the coercive interference of the awesome power of the state. This right to the preservation of family integrity encompasses the reciprocal rights of both parent and children. It is the interest of the parent in the “companionship, care, custody and management of his or her children,” … and of the children in not being dislocated from the “emotional attachments that derive from the intimacy of daily association,” with the parent.
This mutual interest in an interdependent relationship has received consistent support in the cases of the Supreme Court.
The court pointed out that the most basic aspect of family life is the right of a family to remain together, without the interference of government. The Second Circuit then gets to what I believe is the crux of the matter.
The trial court concluded that “(t)he initial custody in December 1969 was clearly proper since the facts show an emergency situation with the mother in the psychiatric ward of Bellevue Hospital and no one to take care of the children.” … We agree that the evidence establishes that the taking of the children was justified at the outset by an emergency. As such, as a matter of constitutional law, the initial removal of the children without parental consent or a prior court order was permissible. … However, in those “extraordinary situations” where deprivation of a protected interest is permitted without prior process, the constitutional requirements of notice and an opportunity to be heard are not eliminated, but merely postponed.
Was BCW legally authorized to take Ms. Perez’s children into custody? Since there was no one to take care of them, the answer is yes. What we have here is what the law calls an “exigent circumstance”.
Requiring immediate action; pressing: an exigent need. See Synonyms at urgent.
Since the mother was hospitalized, there was an urgent need to find someone to take care of these children. The mother had not given her consent the BCW and there was not enough time to get a court order, so BCW took the children into custody and placed them in appropriate child-care facilities. At that point, BCW had acted within the law. But then things went off the rails.
When Ms. Perez was out of the hospital and contacted BCW for the return of her children, she was denied. BCW relied on a previous case Boone v. Wyman, which challenged a New York Social Services law that provided that once a child was remanded or committed to an authorized agency, the parent was not entitled to custody with the consent of the authority or a court order. There was one significant difference between the Boone case and Ms. Perez’s. In the Boone case, Ms. Boone had granted her consent that a state agency take custody of her child. In Ms. Perez case, not only did BCW not have her consent to take her children into custody, they did not even attempt to obtain a court order until three years after their initial emergency action. By denying Ms. Perez custody of her children, even denying her the chance to challenge BCW in a competent court, BCW had denied her the liberty to live with her family without due process of law.
What does this 1970s custody battle have to do with possible vaccine mandates? The answer comes from the concluding paragraph of the court’s opinion.
“If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest, I should have little doubt that the State would have intruded impermissibly on ‘the private realm of family life which the state cannot enter.'”…
Before the state is legally allowed to intrude on the private realm of the family, there must be some showing of unfitness. In other words, the state must show actual harm to the child, not merely what the state believes is in the child’s best interest. To claim the authority to require a vaccine, the state must show that the child is in real, physical danger from the disease, and that the vaccine is the only viable remedy. A simple look at the CDC’s own data shows neither statement to be true. While the 5-11 age group makes up 8.7% of the U.S. population, and accounts for 5.6% of the cases, 0% of the deaths (192 deaths total) have occurred among this group.
As we see governments at all levels claiming the authority to tell us how to live our lives, it becomes more and more important that everyday Americans not only know their rights, but the laws that protect them. So if your school starts demanding that your child receive a COVID “vaccination”, point them to the Perez and Boone cases. Point out that without a court order, any attempt to vaccinate your child without your consent is battery, and that you would seek prosecution to the fullest extent of the law along with civil damages.
As John Jay said:
By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.
John Jay, First Chief Justice of the supreme Court of the United States
To be forewarned is to be forearmed. If we are to fight for our rights and liberty, we must be armed with both the truth and the law. Hopefully, this article has helped you to protect not only your rights, but also the rights of your children.
Paul Engel founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on Amazon and Apple Books. You can also find his books, classes and other products at the Constitution Study website (https://constitutionstudy.com) and listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at email@example.com