Nicholson V Williams and the Thirteenth Amendment

Nicholson V Williams and the Thirteenth Amendment
March 17, 2010 yvonnemason



Shawan Thomason, Carly and Sara Wilfawn being held by legal Slavery
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 domestic abuse.
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 States.”
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 day long.
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 natural mother.

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 domestic violence.

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 defendants appealed.

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 decision.
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).

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