Pregnant by Jesus or Abducted for Adoption?

The story of Gilbert Deya, and his "miracle" babies, was first aired on the BBC Radio 4's Face the Facts. Apparently women are traveling from the UK to Nairobi to give "birth" to children in slum clinics.

According to a BBC investigation, Kenyan-born Deya prays over the childless women, some post-menopausal, and they are pronounced pregnant by Jesus. One woman gave birth every four months to a total of eleven children. Talk about faith-based initiatives!

When the British authorities did DNA tests on one of the "miracle" babies, however, the child was found to have no link to the alleged mother. The church itself says it is not surprised that the babies don't share their parents' DNA because they don't come from their parents but from God.

"Kenya is actually a country where you can buy babies," says Millie Odhiambo of The Cradle, a legal rights organization. She says poor adoption procedures, combined with corruption and poverty, are to blame.

"The information that we are receiving is that the lighter-skinned the child is, the more expensive the child."

In Kenya, the front-page picture of the children seized from the homes of the British parents offered a ray of hope to more than 50 couples. Children they had given up for dead may actually be alive.

Meanwhile in Sierra Leone three people have been arrested and charged with smuggling 29 children to the United States for adoption.

States Clash Over Same-Sex Parental Rights

Four years ago, when courts in Vermont began recognizing the legality of same-sex civil unions, it was only a matter of time before cases came along to test whether sister states would give full faith and credit to those decisions.

The time has come.

One of the earliest cases to raise that issue is a same-sex parental rights challenge that has provoked a jurisdictional debate between Virginia and Vermont. According to an attorney for New York-based Lambda Legal Defense and Education Fund, it is also one of the earliest cases to test how state courts will respond to orders that derive from the legality of civil unions.

The main legal issue is whether a civil union, without more, creates a parental relationship. Application of the federal Parental Kidnapping Prevention Act, which prevents a parent from filing a cutsody case in another state in order to avoid the jurisdiction or an adverse order of the original state, will be crucial. State and federal "defense of marriage" acts will also be relevant.

According to the Lambda Legal Defense and Education Fund, 40 states have passed laws prohibiting same-sex marriage since President Clinton signed the Defense of Marriage Act in 1995.

Only three states recognize same-sex unions. They are Vermont; Hawaii, which offers reciprocal benefits; and Massachusetts, which allows same-sex marriage.

The Circle School v. Pappert

Pennsylvania law mandates that all public, private, and parochial schools display the national flag in every classroom and provide for the recitation of the Pledge of Allegiance or the national anthem at the beginning of each school day.

Like similar statutes in other states, the law allows private and parochial schools to opt out of its requirements on religious grounds, and gives students the option of refraining from participating in the recitation and saluting the national flag on religious or personal grounds. However, it also requires school supervising officials to notify, in writing, parents or guardians of those students who have declined to join in the recitation or salute the flag.

The Third Circuit Court of Appeals recently held that the parental notification provision of the law violates the school students' First Amendment right to free speech and is therefore unconstitutional. It also held that certain of the law's remaining provisions violate private schools' First Amendment right to free expressive association.

The Court held that Pennsylvania's reliance on parental notification in abortion cases as justification for parental notification for failure to recite the Pledge of Allegiance was fundamentally

misplaced. The Court found that the abortion decisions were rendered under a different provision of the Constitution, invoked a different set of competing interests and rights, and involved parental notification schemes that are differently structured.

The abortion cases are grounded on individuals’ rights under the Due Process clause of the Fourteenth Amendment rather than the Free Speech clause of the First Amendment, and the interests involved in those cases-the maturity of the pregnant minor seeking abortion, the significant third-party effects such abortions may have, and the state’s interest in protecting the fetus-are wholly different from the state’s provision of proper educational curriculum and the students’ right to be free from compelled expression.

The Court reasoned that the Pledge of Allegiance notification requirement constitutes viewpoint discrimination that must survive strict scrutiny in order to be held constitutional. When the imposition of such government authority is based on the content of the speech, such regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.

But when the regulations in question go beyond content discrimination and turn on the specific views expressed by a speaker, such viewpoint discrimination is an egregious form of content discrimination and the government must abstain from regulating speech when the specific

motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.

The Court concluded tha Pennsylvania’s parental notification clause clearly discriminates among students based on the viewpoints they express; it is only triggered when a student exercises his or her First Amendment right not to speak. A student’s decision to recite the Pledge of Allegiance or the national anthem, and thereby adopt the specific expressive messages symbolized by such an act, does not trigger parental notification.

On the other hand, a student’s refusal to engage in the required recitation leads to a written notice to his or her parents or guardian, and possibly parental sanctions. Given that the purpose of the bill is to support the recitation of the Pledge of Allegiance or the national anthem in schools, a parental notification clause that is limited only to parents of students who refuse to engage in such recitation may have been purposefully drafted to chill speech by providing a disincentive to opting out of Act.

The Supreme Court has repeatedly stated that constitutional violations may arise from the deterrent, or chilling, effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. The Pennsylvania parental notification clause unconstitutionally treads on students’ First Amendment rights.

State v. Nguyen

In this Oregon case, the parents appealed a judgment terminating their parental rights in their three-year-old son Matthew. They argued that the state failed to prove by clear and convincing evidence that they are unfit parents, that reintegration into their home is improbable within a reasonable time because they are unlikely to change, and that termination of their parental rights was in Matthew's best interest.

The TPR was filed after one of the parents inflicted serious abuse on Matthew's sibling, four-month old Martha, repeatedly breaking her limbs and fracturing her skull. The lower court found that the other parent was aware of that conduct and that neither party acknowledged responsibility.

After Matthew was born, the mother and father remained together, continued to maintain that they did not know how or why Martha was abused, and refused to engage in the process of identifying and curing the problems that led to Martha's injury.

The parents argued that they cooperated with the state and the investigation of the circumstances of the injuries sustained by Martha. Over a period of more than three years, the parents engaged in numerous services, such as parenting classes, visitation, psychiatric and psychological evaluations and individual and couples' counseling.

The Oregon Court of Appeals found that although the case is not easy to decide and that there is a legitimate concern regarding the safety of Matthew in light of the unexplained injuries to Martha, the state failed to meet its burden by clear and convincing evidence that it is highly probable that father and mother are not presently able, or will not be able within a reasonable time, to meet the physical and emotional needs of Matthew. It denied the termination of parental rights.

The Court found that the difficulty in deciding this case was exacerbated by the inherently speculative process of predicting a risk of future harm, a process that the state's three expert witnesses expressly refused to undertake regarding Matthew's situation.

A lone dissenter found that the testimony established that the parent who abused Martha cannot be treated until that parent acknowledges responsibility for Martha's injuries. He also found that the testimony established that, until the parent responsible for Martha's injuries comes forward, further abuse cannot be avoided and Matthew's safety is therefore at risk.

Adoptive Mother Abandons Children in Africa

In one of the more bizarre stories I've encountered, seven adopted American children, ages 8 to 17, were recently discovered in an African orphanage. The adoptive mother, Mercury Denise Liggins, had apparently left the children with a relative in Nigeria while she went to work for Haliburton in Iraq. After the children were discovered by a passing missionary, House Majority Speaker Tom DeLay, Senator John Cornyn and State Department officials intervened to return the children to Houston. The children, who were born and raised in Texas, were placed with Liggins by Houston Child Protective Services when their biological parents' rights were terminated. They have complained of abuse and neglect while in Liggins' care. They were not mistreated in the Nigerian orphanage.

Doe v. Little Rock School District

This case required the court to decide whether the practice of the Little Rock School District that subjects secondary public school students to random, suspicionless searches of their persons and belongings by school officials is unconstitutional. The Eighth Circuit Court of Appeals held that such searches violate the students' fourth amendment rights because they unreasonably invade their legitimate expectations of privacy.

Wong v. Regents of the University of California

In this rare but increasingly common Section 504 educational accommodation case, the liberal Ninth Circuit Court of Appeals held that a successful but learning disabled student was not entitled to special accommodations. The student, whose reading comprehension scores when allowed to read without time limits were at the 99.5 percentile, but under time constraints at the eighth grade level, was deemed not disabled under Section 504.

Highlights from the court's decision follow:

"That is not to say that a successful student by definition cannot qualify as “disabled” under the Acts. A blind student is properly considered to be disabled, because of the limitation on the major life activity of seeing, even if she graduates at the top of her class. Nor do we say that a successful student cannot prove “disability” based on a learning impairment. A learning-impaired student may properly be considered to be disabled if he could not have achieved success without special accommodations. But a student cannot successfully claim to be disabled based on being substantially limited in his ability to “learn” if he has not, in fact, been substantially limited, as that term is used in the Acts.

The relevant question for determining whether Wong is “disabled” under the Acts is not whether he might be able to prove to a trier of fact that his learning impairment makes it impossible for him to keep up with a rigorous medical school curriculum. It is whether his impairment substantially limits his ability to learn as a whole, for purposes of daily living, as compared to most people. The level of academic success Wong has achieved without special accommodation

precludes the possibility that he could establish that he is disabled under the Acts based on a learning impairment. Wong is not less able to “learn” than most people. His record proves the contrary.

Nothing in this decision precludes a student from receiving accommodations or prevents a school from providing them. The question is whether the federal Acts compel the school to provide accommodations. Our answer to that question is not “no” (as the dissenting opinion implies) or “yes, always,” but “yes, sometimes.” The determining factor is whether the student is “disabled” under the terms of the Acts.

The term “learning disability” is commonly used. In the current context that term can be misleading, however, for it is clear that a person who has a “learning disability” is not necessarily “disabled” under the Acts. The Acts use the term in a narrower fashion, to cover only those persons who have an impairment that substantially limits one of the major life activities. . . Although he may have a learning disability, Wong is not substantially limited in the life activity of “learning” as compared to most people. The law compels accommodations for someone who is “disabled” as that term is used in the Acts, but not for everyone who may have a condition described as a “learning disability.”

As for the activity of reading, Wong’s contention was not that he could not read, but that, as a result of his learning disability, he read very slowly and often had to re-read material several times. He cited evidence, for instance, that his reading comprehension scores, when allowed to read without time limits, were at the 99.5 percentile, but under time constraints he read at the eighth grade level.7 In essence, it was argued that Wong read slowly, especially when compared to his own reading comprehension ability without time limits, or to others in his academic peer group. He did not, however, present evidence to the district court or argue to us that he was substantially limited in his ability to read for purposes of daily living, or as compared to what is important in the daily life of most people. That is the appropriate standard.

Welcome Back

Welcome to our Children's Law Blog! After numerous attempts over the past year to find an acceptable blogging solution, we have finally launched the latest edition of MovableType's excellent blogging software. This site will feature commentary, analysis and insights into the emerging issues of children and the law. We will feature daily case law summaries and breaking news on a variety of topics. Check back often for the latest updates!