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From: Greegor on 20 Mar 2010 14:41
Nicholson V Williams and the Thirteenth Amendment
March 17, 2010 yvonnemason
The Thirteenth Amendment states: "Neither Slavery nor involuntary
servitude, except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the United States, or any
place subject to their jurisdiction. Congress shall have power to
enforce this article by appropriate legislation.
Mr. Kurt Mundorff , a caseworker for the New York Child Protective
Services for fourteen months, discusses in his paper titled "Children
as Chattel" the Thirteenth Amendment and the case of Nicholson V
Williams which involved a mother's loss of her children due to
Mr. Mundorff states that Federal District Court Judge Jack B Weinstein
suggested in that case that "The exact language of the Thirteenth
Amendment could be construed to cover children forcibly and
unnecessarily removed without due process and then consigned to the
control of foster parents."
The common sense of this statement would appear to indicate that
children removed from their homes often without good reason and held
in State custody while generating income for the adults around them
should be protected by this amendment.
The simple statement in the amendment which says: "prohibits slavery
and indentured servitude within the jurisdiction of the United
The way Child Protective Services tries to circumvent that amendment
is a principle of common law which was popular in England. In feudal
times various obligations and powers, collectively referred to as the
"royal prerogative" were reserved to the king. The king exercised
these functions in his role of father of the country.
The common law is known as "parens patriae". The word itself is Latin.
The translation is "Parent of the Country." The definition is: A
doctrine that grants the inherent power and authority of the state to
protect persons who are legally unable to act on their own behalf.
In the United States we don't have a king, yet. However, different
agencies Child Protective Services being one of them have taken this
application to the abyss in the treatment of children. The state is
the supreme guardian of all children within its jurisdiction.
Therefore the State Courts have taken the inherent power to intervene
to "protect the best interest of children" whose welfare is
"jeopardized" by controversies between parents. The courts are given
this "supreme power" by the legislative acts that define the "scope"
of child protection in the state. In other words, when you have
children they are not really yours. You are just borrowing them until
such time the state deems you negligent and depriving your child.
This common law in effect gives the state the power to interfere with
the rights of the parent to raise their children without interference
but, it gives the state the right to interfere when they are
"compelled" to do so. And they can feel "compelled" to do so for any
reason valid or not.
That being said, the Supreme Court has established a liberty interest
under the United States Constitution which supersedes the States
Constitution, for a family to freely raise their children without
unnecessary interference. But this balance is only effective for
protection of the Middle Class of America and the affluent Americans.
This protection that is afforded to the middle class and affluent is
not afforded to the poor and disenfranchised communities. If the
invocation of the Thirteenth Amendment were to be put in use it would
require a stricter and higher level of scrutiny of state actions than
is now done. There would be a stronger presumption against
interference in the lives of children and their families.
The Thirteenth Amendment plainly states that "neither slavery nor
involuntary servitude, except as punishment for crime whereof the
party shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction."
With that being said, the current child welfare practices in the
United States must be reformed. States now take children from their
parents, with little or no adjudication and then subject them to
conditions which generate income for their keepers aka foster parents/
adoptive parents. (Title IV-E Funding).The parents and the children
are stripped of the rights which are enjoyed by other citizens
including those who have been charged with capital crimes. It
traumatizes children and leaves them with feelings of guilt, (as if
they had done something to cause the breakup of their family),
feelings of betrayal, (why didn't their parent want them) and feelings
of never being secure again. This act brings up the Eight Amendment
which states "Excessive bail shall not be required, excessive fines
shall not be imposed and finally cruel and unusual punishment shall
not be inflicted. When children are snatched from their homes, school
or a relative's house because of an anonymous tip, or the school
principal or teacher or doctor or hospital says "we think this child
is being deprived or neglected, this is tantamount to cruel and
unusual punishment. A child is ripped from everything they know and
are comfortable with, then tossed into a stranger's home with a new
set of "parents, siblings and rules" This is cruel and unusual
punishment and goes against the Eighth Amendment in a big way. This
act goes hand in hand with the decision of the Supreme Court in United
States V Kozminski.
The Supreme Court stated in United States V Kozminski that involuntary
servitude consists of the condition in which the victim is forced to
work for the defendant or by the use of threat of coercion through law
or the legal process. The definition includes those cases where the
defendant in servitude by placing the victim in fear of such physical
restraint or injury or legal coercion. Their holding did not imply
that evidence of other means of coercion, or of poor working
conditions, or of the victim's special vulnerabilities is irrelevant
in a prosecution under these statutes. They indicated the
vulnerabilities of the victim was relevant in determining whether the
physical or legal coercion or threats thereof could plausibly have
compelled the victim to serve.
When the court made this ruling it reaffirmed its prior decision
declaring that the amendment went far beyond its primary purpose of
abolishing the institution of African Slavery. The Court extended the
amendment to mean "to cover those forms of compulsory labor akin to
African Slavery which in practical operation would tend to produce
like undesirable results." The court also determined the special
"vulnerabilities of the victim are relevant in determining whether the
physical or legal coercion or threats thereof could plausibly have
compelled the victim to serve."
The court used this in their discussion in regards to the young Irish
boys who were brought over to America and compelled to work on the
streets. They were without family and other sources of support and
they had no means of escaping the "padrones" service. They had no
choice by to work for their "masters".
The Supreme Court ruled this was the same thing as African Slavery and
that is what triggered the Thirteenth Amendment protections. In their
findings they specified that "the Vulnerabilities of the victim should
be considered, especially the age."
Some especially those who in Child Protective Services would argue
that the child welfare system is not creating involuntary servitude
because children are not made to work. We can debate that point all
If the definition of coerced labor is : actions an individual is
forced to take, which enrich another individual, then the children
which are snatched from their parents arms easily hands down quality
as coerced laborers.
Mr. Mundorff, however takes things one step further. He states that
the children who are literally ripped from their parents amid tears,
and reaching toward their parents with their clothes in a paper sack
are more like slaves. Unlike Involuntary Servitude, Slavery is a
status not an activity. Children like slaves may not be made to work,
but was not unshackled and there for are not allowed to be free. In
the child welfare system slavery is a legal status, which one cannot
escape. The parent cannot escape because they are like rats in a
wheel. No matter what they do they will never be allowed to have their
children back. The children cannot escape because they are now belong
to the "Ruler of the County/State."
We know that the Child Welfare System better known as Child Protective
Services targets those who are poor and disenfranchised. We also know
that the Kozminski ruling protects those very people against the
parents whose homes are searched, and the children who are taken.
At the present time three children are being held in legal slavery by
Jackson County, Ga. DFCS who then placed them in a foster home which
receives a monthly check for all three girs, plus several other foster
children. These three girls are not free, they are a source of income
for a family who lives in Jackson County with an uneployment rate of
10.4%. It is one of the most economicaly depressed areas in Georgia.
Instead of paying strangers to take care of these girls they should be
giving the money to their mother for housing, child care,etc. IF they
have that kind of money to pay to slave owners, then why not the
Below is the court ruling:
Nicholson v. Williams
U.S. Court of Appeals, 2nd Cir., No. 2, 171 (amicus).
This case involves the parental rights of mothers who are victims of
In 1999, Sharwline Nicholson was a single mother of two young
children, Kendell Coles and Claude Barnett. Ms. Nicholson was still
involved with the father of her infant daughter, Claude Barnett, but
Mr. Barnett lived in South Carolina and made monthly visits up to
Brooklyn to see them. On Jan. 27, 1999, during one of Mr. Barnett's
visits, Ms. Nicholson ended the relationship. Mr. Barnett, who had
never previously threatened or assaulted Ms. Nicholson, angrily began
punching her, kicking her, and throwing objects at her. With her head
bleeding profusely from the attack, Ms. Nicholson called 911. She also
made arrangements for a neighbor to care for her children while she
was in the hospital. Upon learning she would stay at the hospital
overnight, she gave officers the names of relatives who could care for
the children in her absence.
The next day, an Administration of Children's Services (ACS) worker
called Ms. Nicholson at the hospital and informed her that the agency
had taken custody of her children the night before. ACS claimed that
the children were in "imminent risk if they remained in the care of
Ms. Nicholson because she was not, at that time, able to protect
herself nor her children because Mr. Barnett had viciously beaten
her." ACS also filed charges of neglect against Ms. Nicholson for
"engage[ing] in acts of domestic violence" in the presence of their
child. On Feb. 4, 1999, Family Court ordered that Ms. Nicholson's
children be returned to her, but Ms. Nicholson continued to be listed
on the State's records as a neglectful parent.
Ms. Nicholson and others filed a class action suit against ACS
claiming, among other things, a deprivation of Fourteenth Amendment
rights of procedural and substantive due process protecting familial
and parental relationships. On March 1, 2001, the District Court
granted the plaintiffs a preliminary injunction, from which the
The Second Circuit certified to the New York State Court of Appeals
the question of how to interpret the Family Court Act's definition of
neglect. On May 3, 2004, the NYCLU joined in an amicus brief, filed at
the Court of Appeals, in support of the District Court's decision. The
brief highlighted the significant gender bias that continues to
persist in court and agency decisions which blame battered mothers for
any and all harm their children suffer. The brief further argued that
the "failure to exercise a minimum degree of care" standard of the
Family Court Act should be interpreted to require a detailed,
particularized showing of facts that properly assesses the non-abusive
parent's individual responsibility for any harm to her children. Amici
claimed that requiring a case-specific explanation regarding the
accountability of the non-offending parent is essential to protect
adequately a non-offending parent's due process rights, and that to
remove a child from Ms. Nicholson's care on the mere presumption of
responsibility violates those rights.
On Oct. 26, 2004, the New York Court of Appeals unanimously held that
a mother's inability to protect a child from witnessing abuse does not
constitute neglect, and therefore cannot be the sole basis for
removal. Furthermore, the Court held that any decision to remove a
child must be weighed against the psychological harm to the child that
could be created by the removal itself, and that only in the rarest of
instances should this decision be made without judicial approval. On
Nov. 29, 2004, the Second Circuit issued a decree in Nicholson v.
Williams under the terms set forth in the New York Court of Appeals
Attorneys involved in this case include Deborah Widiss, Christina
Brandt-Young and Jennifer Brown (Legal Momentum); Rebekah Diller
(NYCLU); Terry O'Neill (National Organization for Women Foundation).