Legal Opinion on DHS Memo

Community Legal Services, Inc.
1424 Chestnut Street, Philadelphia PA 19102-2505
Phone: 215.981.3700, Fax: 215.981.0434
Web Address: www.clsphila.org

MEMORANDUM

TO: Cheri Honkala, Kensington Welfare Rights Union

FROM: Peter D. Schneider, Staff Attorney

DATE: July 27, 2000

This memorandum will respond to your request for a legal opinion concerning DHS involvement with children at demonstrations planned during the Republican National Convention. In short, the law provides no basis for DHS to become involved with children participating in any of the demonstrations, marches, or other activities planned by KWRU, even where there will be civil disobedience.

I. Sources of Legal Authority for DHS Involvement.

The law permits DHS to become involved with a family under two statutes: The Child Protective Services Law (CPSL), 23 Pa.C.S § 6301, et seq., and the Juvenile Act, 42 Pa.C.S. § 6301, et seq. Basically, the CPSL provides for how and when DHS investigates allegations of child abuse. The Juvenile Act provides for how and when DHS may bring a court action where a child has been taken into custody or where DHS wants to compel a parent to cooperate with services or investigations. Both of these statutes contain provisions dealing with how and when children may be taken into custody. Under these statutes, DHS is not authorized to take a child into custody unless the child is at imminent risk of harm.

II. KWRU's Activities Do Not Permit DHS to Become Involved Under the Child Protective Services Law.

Nothing that KWRU is planning allows DHS to become involved under the Child Protective Services Law. Section 6315 of the CPSL provides that a child may be taken into protective custody by a doctor or a hospital, but only "if protective custody is immediately necessary to protect the child." This provision is typically applied where the child is in the care of a doctor or hospital and the doctor or hospital must act immediately to protect the child from abuse or severe neglect by the parent. This provision obviously does not apply to anything that is being planned by KWRU. Even in the unlikely event that a child were to be hospitalized as a result of the planned actions, there would be no need to protect the child from his or her parent.
In addition, a child may be taken into protective custody under the provisions of the Juvenile Act. I will discuss the Juvenile Act provisions later in this memorandum.

The CPSL also provides for DHS to investigate allegations of child abuse. "Child abuse" is defined in section 6303 of the CPSL. The definition encompasses "nonaccidental serious injury," whether mental or physical; sexual abuse or sexual exploitation; the imminent risk of serious physical injury or sexual abuse or exploitation; and "serious physical neglect constituting prolonged or repeated lack of supervision or the failure to provide essentials of life, including adequate medical care, which endangers a child's life or development or impairs the child's functioning."

Nothing planned by KWRU in any way falls under this definition of child abuse. It is neither abusive or neglectful to bring a child to a demonstration. As Commissioner Martinez acknowledged, "the City and the Department of Human Services values and respects the rights of our citizens to peacefully demonstrate with their children." In the event that parents are arrested, the parents and KWRU have made arrangements for the care of any children who are present. There therefore can be no claim that the children will have any lack of supervision. It is essential that the City respect KWRU's alternate care arrangements, as Commissioner Martinez has pledged to do.

Similarly, it cannot be claimed that KWRU's planned "Bushville" encampment constitutes abuse or neglect, any more than it can be claimed that a family or scout camping trip constitutes abuse or neglect. On a camping trip, children sleep on the ground, cook with open fires, and do without modern sanitary facilities, yet no one would ever claim that these conditions constitute abuse or neglect.

In short, nothing being planned by KWRU would give the City any basis either to open a child abuse investigation or place a child in protective custody unde the CPSL.

III. KWRU's Activities Do Not Permit DHS to Take a Child Into Custody Under the Juvenile Act.

The Juvenile Act contains additional provisions governing when a child may be taken into custody, and provides for court review of any DHS action where a child is not immediately returned to the parent (i.e. within 24 hours). In addition, the Juvenile Act contains provisions regarding juvenile delinquency which I will not address in this memorandum.

Under section 6324 of the Juvenile Act, a child may be taken into custody (1) by court order; (2) if the child is arrested; (3) "if there are reasonable grounds to believe that the child is suffering from illness or injury or is in imminent danger from his surroundings, and that his removal is necessary," (4) if the child is a runaway; or (5) if the child is violating probation.

Of these provisions, only (3) even remotely applies to anything being planned by KWRU. But as I discussed above, nothing that KWRU is planning will place any child at risk of injury or danger. Because alternative care arrangements have been made in case a parent is arrested, and so long as DHS is prepared to respect these arrangements as it has pledges to do, there is no way it can be claimed that the child's removal by DHS would be necessary. Nothing planned by KWRU gives DHS any reason to take action under the Juvenile Act as a result of a parent's arrest.

IV. Conclusion

In conclusion, DHS has no basis to become involved with children as a result of KWRU's planned actions. Because the law does not provide for DHS involvement, and based on the assurances in Commissioner Martinez's letter, I both hope and expect that the City will comply with the law and take no unauthorized action to violation children's or parents' rights.