William and Mary Law School

An Excerpt from "Zoning for Child Protection"

In his forthcoming article, “Zoning for Child Protection: Declaring Communities Unfit for Child Rearing,” Professor James Dwyer focuses on the role neighborhood plays in child development and maltreatment.  He argues that the state should zone some horrible residential areas “no child zones” and remove children born into them.  Further, he contends that the quality and character of communities should play a stronger role in child-protection jurisprudence.

The Article is excerpted below.

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The concept of an unfit parent is familiar to anyone with the least awareness of the child protection system.  Unfit parents are persons with particular characteristics, such as drug addiction, mental illness, and/or a demonstrated propensity to maltreat children, that render them unsuitable to serve as caretakers for a child. The concept of a home environment unsuitable for children is also familiar.  Unsuitable homes for children are living quarters that contain dangers such as guns or drugs within children´s reach, that have terribly unsanitary conditions, and/or to which violent persons or sexual predators have regular access.    Domestic relations and child protection laws routinely take account of parental fitness and home environment in making decisions as to custody of children.  Even moderate deficiencies in parenting ability can result in a person being denied an opportunity to adopt or in one parent being denied custody in a post-divorce contest between parents.    A more serious incapacity to care properly for a child can result in a child protection agency removing a child from parental custody to foster care.   Child protection agencies also charge parents with neglect when, regardless of the parents' inherent capacities, they create a home environment that is extremely unhealthy or unsafe for children.    And agencies and courts addressing adoption or post-divorce custody petitions disfavor petitioners whose home is chaotic or slovenly. 

What domestic relations and child protection laws generally do not take into account is the larger physical and social environment in which parents live – that is, parents' community or neighborhood.    When courts and agencies do comparative assessments of potential custodians of a child in domestic relations or adoption cases, they focus almost exclusively on the individual adults’ personal traits and immediate home environment.   The child protection system likewise focuses almost exclusively, in deciding what to do with a child who has incurred abuse or neglect or who is in imminent danger of incurring maltreatment, on determining whether a child’s legal parents are fit and maintain a suitable home.    Yet children’s well being typically depends very much on the nature of the world beyond the parent-child dyad and the family home – that is, on the safety and health of the community in which parents live.   At the negative extreme, a neighborhood can pose threats to children's well being far exceeding those present in typical cases of removal from unsuitable homes.   The worst neighborhoods pose direct threats to children physical and psychological well being, and they also adversely affect children indirectly by creating stressors that undermine parents´ ability to care for children.   Pervasive crime and substance abuse, in particular, substantially elevate risks to children beyond those created just by less capable or less motivated parents.  Given that a relatively high percentage of adults who live in the worst neighborhoods are marginal to begin with, in terms of their inherent capacity for caregiving and for maintaining a safe and healthy home, the additional threats present in the larger residential environment push the experience of most children in such neighborhoods below what most Americans would regard as a level of minimal adequacy. 

Family law and juvenile law scholars have also generally overlooked “neighborhood effects” in writing about these various areas of law in which the state decides who a child’s legal parent and/or custodian is to be.  To the extent they have discussed parents’ community environment, it has generally been to point to the community as a potential source of assistance to struggling parents, or as a target for additional state welfare programs needed to enhance child welfare.   It is true that healthy communities can be a source of support and ameliorate the risks to children that inadequate parents pose, and devoting much greater resources to renewal and safety programs in bad neighborhoods might make the lives of children living there somewhat better.  However, unhealthy communities undermine the child rearing efforts of inherently adequate parents and exacerbate the child welfare dangers presented by inherently inadequate parent.  

The law governing and scholarship concerning land use and zoning likewise reflect no consideration of the possibility that some physical spaces, whether suitable for adult residence or not, might clearly be unsuitable for habitation by children, because of the social environment that adults living in those spaces have created.  Zoning law does reflect consideration of environmental hazards such as pollution and noise, in excluding residence from permissible uses of some places; it sets aside some areas for industrial use, some for commercial, some for residential, and some for mixed use, based in part on such consideration.  But land use planners take for granted that wherever adults live (with the possible exception of some areas reserved for senior citizens), so too will children.

The legal community's inattention to the child welfare implications of parental residence persists despite the greatly increased attention social scientists have paid in the past decade to neighborhood effects on children's well being.  As discussed in Part I below, recent research confirms that there are currently in the U.S. some residential areas where community dysfunction is so intense and pervasive that it will inevitably and seriously adversely impact the wellbeing of most or all children living in them, even endangering their very survival.  Researchers and public policy experts react to the heightened awareness this research has created by proposing strategies for transforming such places, but all concede that change will come only very slowly, if at all.  They, too, fail to consider whether aggressive legal measures should be taken immediately to get and keep children specifically out of these places.

The analysis of this Article shows that such aggressive legal measures are not only permissible, but in fact morally and constitutionally mandatory.  I propose that state and local governments declare some communities unfit for child rearing and amend zoning laws to restrict those areas to adult-only residential use.  If and when any sustained public policy measures do transform such places, the zoning restriction can be lifted, but in the meantime no child should be living in them.  I also contend that the legal system should require consideration of the community environment in which parents or potential parents live more generally, in any decision making about childre's lives, even when the community is not so bad as to be declared unfit.  State legislatures should amend domestic relations and child protection laws to give explicit direction to courts and agencies that neighborhood quality is to be a factor in their decision making.  It is relevant to children's well being as an empirical matter, and so it should be relevant legally as well.

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