Dartmouth Law Journal Vol.13.2 Fall 2015

MASTHEAD
THE DARTMOUTH
LAW JOURNAL

VOLUME XIII

Fall 2015

ISSUE 2
Editor-in-Chief
JAMESON C. BILLINGS
Executive Editors
JAMESON C. BILLINGS
Executives
GABRIELA URIAS MARIE PLECHA EMILY CHAN
ALEXANDRA MINSK SARA TOPIC JAKE WOJNAS
EMMA MARSANO KATARZYNA ROBAK JACOB GREENBERG
Managing Editors
NATHANIEL GREABE ALEK ABATE MARIE PLECHA
ROGER LU CONNIE LEE
Editorial Staff
Faculty Advisor: SONU BEDI, PROFESSOR OF GOVERNMENT, DARTMOUTH COLLEGE
PERRI HASSER CYNTHIA SHIN JASPER BINGHAM
PARKER RICHARDS CHRISTIE MAYBERRY ELIZABETH KLEIN
WILLIAM PAJA VANESSA SONCCO ELYSE KUO
SAMUEL HILLS MADELINE KILLEN EMILY CHAN
HEIDI SHIN KEVIN ZHANG REBECCA RODRIGUEZ
JESSICA LU AMANDA SPOTO LYDIA CASH
HARRY MAIDMAN HOLLYE SWINEHART REILLY MCINERNEY
CYNTHIA SHIN TYLER RIVERA RAUL DEL CID
LAURA SIM STEPHAN KUHAR YIFEI CHEN
ANN HAUSER ERIC JUNG FREYA JAMISON
JEEHIN LEE JOHN ROBINSON MICHELLE LI
NEIL KAMATH YURI LEE AIME JOO
DENNISE HERNANDEZ HOLLY JEONG NICKO GLADSTONE
SAMUEL DICHIARA RILEY MCDONOUGH BRENNAN HAWSEY
CRISTINA CURCELLI HELEN HE JACOB CRUGER
KATE FLOYD KIHONG AHN KOURTNEY KAWANO
SUNG JUN PARK

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TABLE OF CONTENTS
THE DARTMOUTH
LAW JOURNAL
VOLUME XIII FALL 2015 ISSUE 2
ARTICLES
The Right to Be Parented: Recognizing a Child’s Substantive Due Process
Right to Permanency
MATTHEW SKEENS 1
There’s No Place Like “Essentially at Home”: General Jurisdiction after
Daimler Ag v. Bauman
NICKOLAS GALENDEZ 26
Outside Equal Protection: The Evolution of State Laws as Precedent for
Lifting Georgia's Same-Sex Marriage Ban
CHRISTIAN BROMLEY 57
Congressional Term Limits: A Good Idea?
MICHAEL LIPETRI 90
The Countermajoritarian Difficulty of Marriage Equality: Kitchen v.
Herbert & Bishop v. Smith
COLLEEN WORT 110

SKEENS
Fall 2015 THE RIGHT TO BE PARENTED 1
THE RIGHT TO BE PARENTED: RECOGNIZING A
CHILD’S SUBSTANTIVE DUE PROCESS RIGHT
TO PERMANENCY
MATTHEW A. SKEENS
**
INTRODUCTION..............................................................................................1
II. HISTORY OF FOURTEENTH AMENDMENT SUBSTANTIVE DUE
PROCESS IN CHILD WELFARE LAW...............................................................3
A. The 1920’s-1970’s: Substantive Due Process Focusing on the
Welfare of Children ..............................................................................3
B. Lehr v. Robertson: Biological Connection and Parental Rights ....6
C. Troxel v. Granville: Fitness to Parent is Key .................................7
III. PERMANENCY: THE RIGHT OF A CHILD TO BE APPROPRIATELY
PARENTED ...................................................................................................10
IV. BALANCING A CHILD’S RIGHTS AGAINST A PARENT’S RIGHTS ......13
A. Finding the Middle Ground Between the Rights of Abusive
Parents and the Rights of Abused Children ........................................14
B. The Rationality of a Fundamental Right to Permanency .............21
V. CONCLUSION ....................................................................................23
INTRODUCTION
The landscape of child welfare law1
is fraught with pitfalls infringing
on constitutional rights—the rights of parents to raise their children as they
see fit; the rights of society to enforce community norms in the rearing of
children; and the rights of children to have a safe and secure existence. While
**
Matthew A. Skeens, J.D. is a graduate Ohio Northern University, Pettit College of Law. He has
represented the State of Indiana as a Staff Attorney, Supervising Attorney, and Chief Counsel.
Before working for state government, Mr. Skeens represented parents as court appointed defense
counsel and children as court appointed defense counsel and guardian ad litem in child welfare
and juvenile delinquency cases.
1
The term child welfare law refers to the body of law that concerns the abuse and neglect of children
under the age of eighteen. The term child dependency law is also commonly used to refer to child
welfare law. This article will use the term child welfare law.

SKEENS
2 THE DARTMOUTH LAW JOURNAL VOL. XIII:2
the body of law examining the interdependence between the rights of parents
and the rights of children exists, almost exclusively at the state level,2
the
federal government exercises an extreme amount of influence over the entire
child welfare system all the way down to the direct funding of state child
welfare services and foster care programs.3
Moreover, when state action
involves matters of constitutional import, action in the federal court system
is appropriate.4
The overwhelming majority of these cases that arise in the
federal courts concern an infringement of a parent’s Fourteenth Amendment
right to Due Process by state action.5
No federal cases analyze a child’s
Fourteenth Amendment liberty interest in maintaining or obtaining a
permanent family.6
In 2012, there were approximately 74 million children living in the
United States.7
Of those children, nearly 3.8 million were the subject of some
report of maltreatment.8
Approximately 20% of those reports resulted in
judicial action to protect the safety and welfare of the abused or neglected
child.9
The largest age group of child victims of abuse or neglect was children
younger than three years of age.10
In almost every instance, the judicial
processes employed in these cases focused on the legal protections of the
parent, guardian, or custodian and not on those of the abused or neglected
child.
This article will briefly examine the history of how the concept of
substantive due process in the Fourteenth Amendment has been applied to
child welfare law, arriving in Part I at the conclusion that, in child welfare
cases, it is the parents who enjoy substantive due process rights and often to
the detriment of the child’s interests. Part II will discuss the theory of
permanency in child welfare law and explain the dichotomy between legal
permanency and actual permanency. In Part III, an argument will be made
that child welfare jurisprudence should undergo a fundamental shift and
recognize that children have a fundamental right to permanency which
should be protected by the theory of substantive due process emanating from
the Fourteenth Amendment.
This right in favor of children would only be invoked after a parent
has been deemed unfit. This article relies on the premise that the
2
See Lehr v. Robertson, 463 U.S. 248, 256 (1983).
3
42 U.S.C § 671(15)(A-F) (2014).
4
Lehr, 463 U.S. at 257. See also, Stanley v. Illinois, 405 U.S. 645 (1972), Quilloin v. Walcott, 434
U.S. 246 (1978), and Caban v. Mohammed, 441 U.S. 380 (1979).
5
Id.
6
Michael H. v. Gerald D., 491 U.S. 110, 130 (1989).
7
Children’s Bureau, U.S. Dep’t of Health and Human Servs., Child Maltreatment 2012 at 18
(2013).
8
Id. Maltreatment is defined as a substantiated report of abuse or neglect investigated by a state or
local child protection agency.
9
Id.
10
Id.

SKEENS
advancements in the discourse on the fundamental rights of children, the
presence of U.S. Supreme Court precedence indicating that such a right
might exist, and the rationality in recognizing such a right, all lead to the
conclusion that children have a fundamental right to be parented in a healthy
and stable family.
II. HISTORY OF FOURTEENTH AMENDMENT SUBSTANTIVE DUE
PROCESS IN CHILD WELFARE LAW
The Due Process Clause is found in Section 1 of the Fourteenth
Amendment and states: “No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process
of law[.]” This clause has been interpreted to divide the concept of due
process into two distinct theories: substantive due process and procedural
due process.
Substantive due process is a nebulous concept.11
It is best described
as a group of unwritten, individual rights that should be protected from
government infringement,12
and are often designated as fundamental rights.13
At the heart of these individual rights is the “constitutional protection to
personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education.”14
Procedural due process, on the
other hand, is the more concrete notion that before a person is deprived of
life, liberty, or property she must first be “given notice of the case against
[her] and the opportunity to meet it.” 15
A. THE 1920’S-1970’S: SUBSTANTIVE DUE PROCESS FOCUSING ON THE
WELFARE OF CHILDREN
The examination of substantive due process rights in the context of
child welfare law began in the 1920s with two cases relating to the education
of children. In the 1923 case Meyer v. Nebraska,16
the U.S. Supreme Court
reversed the criminal conviction of a Nebraska teacher for violating a state
law that prohibited instructing any language other than English to a child
11
See Calvin Massey, American Constitutional Law: Powers and Liberties 484 (2001).
12
See id.
13
Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U.
CHI. L. REV. 1057, 1058 (1990).
14
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791 (1992).
15
Joint Anti-Fascist Refugee Commission v. McGrath, 341 U.S. 123, 172, 71 S.Ct. 624 (1951).
16
262 U.S. 390 (1923).

SKEENS
who had not yet graduated the eighth grade.17
Meyer had taught a ten-year-
old the German language in a parochial school.18
The Court determined that
a parent’s liberty interest in ensuring an education that suited the child’s
needs supplanted Nebraska’s interest in preventing foreign language
instruction to children under the statutory age.19
The Court did not define the
liberty interest in the context of raising children, but it did find that such an
interest lies within the vast spectrum of fundamental rights.
While this court has not attempted to define with exactness
the liberty thus guaranteed, the term has received much
consideration and some of the included things have been
definitely stated. Without doubt, it denotes not merely
freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God
according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized at
common law as essential to the orderly pursuit of happiness
by free men.20
Two years later in Pierce v. Society of Sisters,21
the Supreme Court
again applied the theory of substantive due process to a parent’s right to
provide an education for her child. This time, the Court found that Oregon’s
application of a law requiring all children (with certain exceptions for those
with special needs) between the ages of eight and sixteen to attend public
school violated parents’ liberty interests to rear their children as they see fit.22
Failure to comply with the law subjected parents to criminal sanctions.23
In
this case, the Court went one step further than it had in Meyer and specifically
found:
The fundamental theory of liberty upon which all
governments in this Union repose excludes any general
power of the state to standardize its children by forcing them
to accept instruction from public teachers only. The child is
not the mere creature of the state; those who nurture him
and direct his destiny have the right, coupled with the high
17
Id. at 397.
18
Id.
19
See id. at 400.
20
Id. at 399.
21
268 U.S. 510 (1925).
22
Id. at 530.
23
Id.

SKEENS
duty, to recognize and prepare him for additional
obligations.24
For the first time, the Court linked parents’ rights to raise their
children in accordance with their beliefs to a responsibility to parent children
appropriately.
The next evolution in child welfare substantive due process
jurisprudence came in another education case—Wisconsin v. Yoder—in
1972.25
This time it involved the refusal of an Amish family to continue to
send their children to either public or private school after the eighth grade.26
The state’s law required children to attend high school upon completion of
the eighth grade, at least until the age of sixteen.27
In this case, the Court took
the position that even with a well-grounded state interest in ensuring
universal education for children, the right of parents to expose, encourage,
and require adherence to their religious beliefs—even the most rigorous of
practices—cannot be infringed upon by the state.28
The case of Parham v. J.R.29
was the first time the Supreme Court
opened the door to the idea that children have some substantive rights of their
own in the context of child welfare. The case was brought as a class action
suit against the State of Georgia, alleging that the procedures allowing
parents to commit their child to a state operated mental hospital against the
child’s will, without any further inquiry or review by the state, violated the
child’s Fourteenth Amendment Due Process rights.30
While the Court held
that a child does have her own substantive due process interest in having
such state action reviewed by a professional prior to commitment,31
it also
held that those interests are “inextricably linked with the parents’ interest in
and obligation for the welfare and health of the child. The private interest at
stake was, then, a combination of the child’s and parents’ concerns.”32
The
Court went on to hold:
24
Id. at 535 (Emphasis added).
25
406 U.S. 205 (1972).
26
Id. at 207.
27
Id.
28
Id. at 216-229.
29
442 U.S. 584 (1979).
30
Id. at 588.
31
“It is not disputed that a child, in common with adults, has a substantial liberty interest in not
being confined unnecessarily for medical treatment and that the state’s involvement in the
commitment decision constitutes state action under the Fourteenth Amendment.” Id. at 600 (citing
Addington V. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804 (1979)).
32
Id. (Emphasis added).

SKEENS
The law’s concept of the family rests on a presumption that
parents possess what a child lacks in maturity, experience,
and capacity for judgment required for making life’s
difficult decisions. More important, historically it has
recognized that natural bonds of affection lead parents to act
in the best interests of their children.33
However, the Court made an exception to its presumption that
parents will act in the best interests of the child when abuse and neglect
occurs, in which case their substantive due process rights may be abrogated.
“In defining the respective rights and prerogatives of the child and parent in
the voluntary commitment setting,” the Court ruled, “we conclude that our
precedents permit the parents to retain a substantial, if not the dominant, role
in the decision, absent a finding of neglect or abuse, and that the traditional
presumption that parents act in the best interests of their child should
apply.”34
B. LEHR V. ROBERTSON: BIOLOGICAL CONNECTION AND PARENTAL
RIGHTS
In 1983, the Supreme Count held in Lehr v. Robertson35
that a parent’s
liberty interests do not flow from biology alone. Here, the Court held that a
putative father, who had no history of involvement with his alleged child,
who had not registered with the state’s putative father registry, and had not
offered to marry the child’s mother, had no substantive due process right to
challenge the child’s adoption by her step-father even when the state knew
of his whereabouts and made no attempt to involve him.36
This seminal case
destroyed the legal tradition that parental rights are based exclusively on
biological connection.37
Thus, Justice Stevens introduced the idea that parental liberty
interests spring not from the mere fact that a child is the biological offspring
of a particular adult, but that there is a “paramount interest in the welfare of
children[,]”38
and that “the rights of parents are a counterpart of the
responsibilities they have assumed.”39
Since Lehr never made any attempts
to accept “some measure of responsibility for the child’s future[,]”40
the state
33
Id. at 602.
34
Id. at 604. (Emphasis added).
35
Supra note 2.
36
Id.
37
Id. at 261. “[T]he mere existence of a biological link does not merit equivalent constitutional
protection [to that of a father who] demonstrates a full commitment to the responsibilities of
parenthood[.]”
38
Id. at 257.
39
Id.
40
Id. at 262.

SKEENS
was not required to “listen to his opinion of where the child’s best interests
lie.”41
The impact of the Lehr decision cannot be overstated. It had long
been held that the natural parent of a child had an interest superior to all
others, regardless of her level of involvement with the child.42
Justice White
in dissent articulated this longest held and most fundamental presumption in
family law, stating:
I reject the peculiar notion that the only significance of the
biological connection between father and child is that “it
offers the natural father an opportunity that no other male
possesses to develop a relationship with his offspring.”43
A
“mere biological relationship” is not as unimportant in
determining the nature of liberty interests as the majority
suggests… [T]he “nature” of the interest is in the parent-
child relationship; how well-developed that relationship has
become goes to its “weight,” not its “nature.” Whether
Lehr’s interest is entitled to constitutional protection does
not entail a searching inquiry into the quality of the
relationship but a simple determination of the fact that the
relationship exists—a fact that even the majority agrees
must be assumed to be established.44
Now the Court was free to consider other, more substantive factors
when determining the nature and scope of a parent’s liberty interests.
Biology alone was not the determining factor. In the Lehr decision, the Court
used precedent from prior cases involving putative fathers to outline that the
conduct of a parent and the nature and quality of her relationship with the
child were as important as the mere biological connection.45
C. TROXEL V. GRANVILLE: FITNESS TO PARENT IS KEY
The most recent development in child welfare substantive due
process law came in 2000 in the form of a grandparents’ visitation rights
41
Id.
42
Id. at 270 (J. White’s dissent). See also Lassiter v. Dept. of Social Services, 452 U.S. 18, 27
(1981).
43
Id. at 271. (Quoting J. Stevens’ majority opinion at 262).
44
Id. at 271.
45
Id. at 258-260 (Citing Stanley, Quillion, & Caban, supra note 4).

SKEENS
case. In Troxel v. Granville,46
the Court was asked to decide the
constitutionality of a Washington Supreme Court decision invalidating a law
allowing a non-parent to petition for visitation with a child without deferring
to the parent’s objection to that visitation. The Supreme Court granted
certiorari, and Justice O’Connor wrote a plurality opinion holding that the
statute violated the parent’s substantive due process liberty interest in
deciding who can visit with her child and with what frequency.47
Justice Souter concurred in the judgment but was wary of expanding
the substantive due process issues, and he advocated for simply affirming the
decision of the Washington Supreme Court and vacating the statute at issue
without further analysis.48
Justice Thomas concurred in the judgment but
criticized the plurality’s failure to apply a strict scrutiny standard of review.49
Justices Kennedy and Scalia wrote separate dissents resting on the idea that
the federal courts are not in the correct position to determine questions of
family relationships and whether a child’s best interests are being served.50
The Troxel decision speaks directly to the idea that the integrity of the family
is among the most profound liberty interests enjoyed by individuals. “The
liberty interest at issue in this case—the interest of parents in the care,
custody, and control of their children—is perhaps the oldest of the
fundamental liberty interests recognized by this Court.”51
However, the Court in Troxel further expanded upon the notion first
articulated in the Parham decision that the rights of parents may depend on
whether they abuse or neglect their children. Justice O’Connor’s plurality
opinion pointed out that “there was no allegation that Granville was an unfit
parent[,]” and based on the Parham case, there is a “presumption that fit
parents act in their children’s best interests.”52
She further explained this
concept by stating, “so long as a parent adequately cares for his or her
children (i.e. is fit) there will normally be no reason for the State to inject
itself into the private realm of the family[.]”53
Moreover, Justice Thomas, in
his concurrence, while arguing for his position with regard to the standard of
review, reiterated that parents’ rights are dependent on their being fit. “Here
the State of Washington lacks even a legitimate governmental interest—to
say nothing of a compelling one—in second-guessing a fit parent’s decision
regarding visitation with third parties.”54
46
530 U.S. 57 (2000).
47
See Troxel, supra note 42.
48
Id. at 76-80.
49
Id. at 80.
50
Id. at 91-102.
51
Id. at 65.
52
Id. at 68.
53
Id.
54
Id. at 80. (Emphasis added).

SKEENS
Finally, it was Justice Stevens who, in his dissent, seemed to most
allow for the idea that children might have substantive due process rights
separate from those of their parents. Justice Stevens argued that since the
Washington Supreme Court addressed federal issues in its opinion, it was
only appropriate that the Court take those issues head-on.55
Justice Stevens
found fault with the Washington court’s holding that “the Federal
Constitution requires a showing of actual or potential ‘harm’ to the child
before a court may order visitation continued over a parent’s objections[.]”56
He reinforced the idea that parental authority is not limitless: “we have never
held that the parent’s liberty interest in [the parent-child] relationship is so
inflexible as to establish a rigid constitutional shield, protecting every
arbitrary parental decision from any challenge absent a threshold finding of
harm.”57
In fact, Justice Stevens was willing to concede that, “even a fit
parent is capable of treating a child like a mere possession.”58
Most notably, Justice Stevens made the case in his dissent that
children have a substantive due process claim that, while not on par with
those of a fit parent, is at least similar to that of any other party to a case.
Cases like this do not present a bipolar struggle between the
parents and the State over who has final authority to
determine what is in a child’s best interests. There is at a
minimum a third individual, whose interests are implicated
in every case to which the statute applies—the child. . . As
this Court had recognized in an earlier case, a parent’s
liberty interests ‘do not spring full-blown from the
biological connection between parent and child. They
require relationships more enduring[,]’. . . A parent’s rights
with respect to her child have thus never been regarded as
absolute, but rather are limited by the existence of an actual,
developed relationship with a child[.] These limitations
have arisen, not simply out of the definition of parenthood
itself, but because of this Court’s assumption that a parent’s
interests in a child must be balanced against the State’s long
recognized interests as parens patriae . . . and, critically, the
child’s own complimentary interest in preserving
relationships that serve her welfare and protection. While
this Court has not yet had occasion to elucidate the nature of
55
Id. at 85.
56
Id.
57
Id. at 86.
58
Id.

SKEENS
a child’s liberty interests in preserving established familial
or family-like bonds . . . It seems to me extremely likely that,
to the extent parents and families have fundamental liberty
interests in preserving such intimate relationships, so, too,
do children have these interests, and so, too, must their
interests be balanced in the equation. At a minimum, our
prior cases recognizing that children are, generally
speaking, constitutionally protected actors require that this
Court reject any suggestion that when it comes to parental
rights, children are so much chattel.59
Justice Stevens used the phrase “preserving established familial or
family-like bonds” in his dissent to describe the liberty interest
children might have. Practitioners of child welfare law use a specific
term of art to refer to this concept: permanency.
III. PERMANENCY: THE RIGHT OF A CHILD TO BE APPROPRIATELY
PARENTED
A vital but often misunderstood aspect of child welfare law is how a
child reaches the imprecise condition of permanency. Permanency in the
child welfare context can be defined as a “legally permanent, nurturing
family for every child.”60
When a child must be removed from her home to
ensure her safety, permanency efforts focus on returning her to her parents
as soon as safely possible or placing her with another permanent family.
Once a child is removed from her home, however, she is at the mercy of the
state and the judicial system to determine where she will be placed while out
of her parents’ care, and for how long she is placed there before she ever
reaches the ultimate goal of a permanent family—whether that permanency
status means being reunified with her parents, or in some other permanent
family arrangement such as adoption.
The concept of permanency is at the heart of child welfare law.
However, it is not an easy goal to achieve in some cases. The most obvious
example of permanency comes at the time a child may be reunited with her
parents. But, as reunification is not always in the child’s best interests, other
permanency options are often explored and many develop into fruitful
relationships that benefit the child and provide the permanent stability the
child needs.61
While biology often bolsters a permanent bond with a parent,
the psychological relationship between a child and adult is the most
59
Id. at 87-89.
60
Administration for Children and Families, U.S. Dep’t of Health and Human Servs., Concept and
History of Permanency in U.S. Child Welfare found at
www.childwelfare.gov/permanency/overview.
61
See Joseph Goldstein et al., Beyond the Best Interests of the Child 33 (2d ed. 1979)

SKEENS
important aspect in developing permanency.62
How that psychological
relationship develops and thrives is complex and is not exclusive to
biological parents.
As the prototype of true human relationship, the
psychological child-parent relationship is not wholly
positive but has its admixture of negative elements. Both
partners bring to it the combination of loving and hostile
feelings that characterize the emotional life of all human
beings, whether mature or immature… Whether an adult
becomes the psychological parent of a child is based thus on
day-to-day interaction, companionship, and shared
experiences. The role can be fulfilled either by a biological
parent or by an adoptive parent or by any other caring
adult—but never by an absent, inactive adult, whatever his
biological or legal relationship to the child may be.63
Children need the concept of permanency to develop healthy relationships.64
Without permanency, children’s ability to maintain healthy relationships is
diminished.65
“When healthy attachments do not form or are disrupted,
children do not experience the security they need to develop in a healthy
manner and do not adopt the protective factors that would help them
withstand the adversity of life.”66
Healthy family structures help children
develop “self-esteem, social competence, emotional adjustment, behavioral
self-control, and sense of identity.”67
A pitfall of the concept of permanency is the sometimes stark
contrast between so-called legal permanency and actual permanency.68
Legal
permanency can be defined as the recognition of a parenting or in loco
parentis relationship in law between a child and adult. A good example of
legal permanency is the adoption of a child.69
Actual permanency is much
more difficult to quantify.70
Actual permanency is the enhancement or
62
Id.
63
Id.
64
Joseph Goldstein et al., Beyond the Best Interests of the Child 33, 34 (2d ed.1979)
65
Id.
66
Id.
67
Joseph S. Jackson & Lauren G. Fasig, The Parentless Child’s Right to a Permanent Family, 46
WAKE FOREST L. REV. 1, 26 (2011).
68
Ventrell, Marvin & Donald N. Duquette, Child Welfare Law and Practice Representing Children,
Parents, and State Agencies in Abuse, Neglect, and Dependency Cases, §17.2 (2005).
69
Id.
70
Id. at §17.1.

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development of psychological and emotional bonds between a child and an
adult resulting in the preservation of existing family structures, the
enhancement or modification of existing family structures, or the creation of
new family structures to the benefit of the child until adulthood and beyond.
Problems in child welfare cases often arise when the achievement of
legal permanency does not result in the achievement of actual permanency.
For example, the state may judge a parent to be unfit and order him to
participate in services designed to reunify the parent-child relationship, to
complete the services, and to achieve reunification with his child. However,
it is common that such a family might find itself once again subject to a child
welfare case if the behaviors that originally led to involvement with the child
welfare system reoccur. Thus, while legal permanency in the original child
welfare case was achieved—reunification of the child with her parent—
actual permanency was not. Results are even worse when a child is removed
from her parents by the state for abuse or neglect and is adopted by a new
parent, who then seeks to reverse the adoption.
In Re the Adoption of T. B.71
is an Indiana Supreme Court case in
which the adoptive mother sought to reverse the adoption of her child.72
The
adoptive mother adopted the child from state custody during a child welfare
case.73
In her petition, the adoptive mother alleged that the state did not
inform her of the specific type of abuse the child had suffered, and therefore
she was fraudulently induced to adopt the child.74
The child became a ward of the state when she was eight years old.75
Upon removal from her biological mother, the child was placed in a group
home for girls.76
Efforts were made to reunify the child with her biological
mother, but the efforts failed and parental rights were terminated.77
During
the time that the child was in state custody, she developed a relationship with
her future adoptive parent.78
After the termination of the biological mother’s
parental rights, the child was adopted.79
However, the relationship between
the child and her adoptive mother eventually fell apart. The court gave the
following description:
[Adoptive mother] reported that during the year following
the adoption, typical transition problems occurred. As [the
child] entered adolescence, [the adoptive mother] and [the
71
622 N.E.2d 921 (1993).
72
Id. at 922-923.
73
Id.
74
Id.
75
Id.
76
Id.
77
Id.
78
Id.
79
Id.

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child] sought counseling at Southlake Center for Mental
Health because behavioral problems developed. Eventually,
the problems grew worse, and [the child's] behavior
included promiscuity, drinking alcohol, destruction of
property, petty theft, deterioration of academic performance
and violence toward [her adoptive mother]. Ultimately, [the
child] made death threats against [her adoptive mother].80
Now the child was in an untenable situation. Prior to being adopted,
she had spent approximately three years in a group home. Her biological
mother’s parental rights had been terminated. The adoptive mother, with
whom she had now lived for five years, no longer wanted her. The Indiana
Supreme Court maintained the legal relationship between the adoptive
mother and the child and held that the record did not indicate that the state
committed fraud.81
Therefore, the legal child-parent relationship remained
intact, but the damage was done. What remained after the all of the litigation
was a broken relationship between a child with obvious psychological and
emotional trauma and an adoptive mother who no longer wanted her. While
the judicial system sufficiently addressed the legal issues surrounding the
child’s adoption, there was nothing it could do to repair the bond between
the child and the adoptive mother. This is the Solomon’s Choice of legal
permanency versus actual permanency.
How, then, can judges and practitioners do a better job of ensuring
that legal permanency leads to actual permanency? While no specific
solution can ever prevent the scenario described in T.B., the judicial system
can rfocus more on the constitutional right of children to have actual
permanency. In support of this idea, Justice Stevens correctly recognized in
Troxel that children have constitutional interests in their own protection and
wellbeing, and that they should be afforded better protections.82
IV. BALANCING A CHILD’S RIGHTS AGAINST A PARENT’S RIGHTS
In Parham, the Court noted that, “the law’s concept of the family
rests on a presumption that parents possess what a child lacks in maturity,
experience, and capacity for judgment required for making life’s difficult
decisions.”83
However, in cases where a parent has abused or neglected a
80
Id.
81
Id. at 925.
82
Troxel, 530 U.S. at 89.
83
Parham, 442 U.S. at 602.

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child, that presumption is negated in fact but not in law upon adjudication.
Why, then, must child welfare courts continue to presume that the abusive
or neglectful (i.e. “unfit”) parents retain their substantive due process rights
in favor of, and sometimes in opposition to, those of the child? The Parham
case tells us why: historical tradition.84
A. FINDING THE MIDDLE GROUND BETWEEN THE RIGHTS OF ABUSIVE
PARENTS AND THE RIGHTS OF ABUSED CHILDREN
There is no doubt that one of the most intrinsic philosophies in
Anglo-American jurisprudence is that parents ought to enjoy the right to
parent their children in the way they see fit without interference from the
state. While there is no specific constitutional language referring to such a
right, it is one of the longest held traditions in the law, and so this right is
often viewed as sacred.85
Frequently, the term “tradition” is used in the law
with no concern for what the specific term and its general idea really mean.
As Justice Brennan ably argued in his dissent in Michael H. v. Gerald D.,86
the concept of tradition can be used in an attempt to place a “discernible
border around the Constitution.” 87
He also correctly observes that
“reasonable people can disagree about the content of particular
traditions…and disagree even about which traditions are relevant to the
definition of ‘liberty[.]’”88
Under what circumstances should the tradition
that a parent’s rights are sacred—and thus, that a liberty interest in them
exists—no longer apply?
The concept of tradition, along with its role in the law of
fundamental rights, has long been contested by constitutional scholars. The
cases of Lehr and Michael H. are good illustrations of the dichotomy
between those who rely on tradition to inform the presence and nature of
fundamental rights and those who argue that while tradition is important, it
is subjective and thus open to interpretation and modification.
Michael H. (hereafter Michael) was the putative father of a child
born as the result of an extramarital affair between him and Carole D.
(hereafter Mother).89
Mother’s husband, Gerald D. (hereafter Gerald), was
listed on the child’s birth certificate as the father.90
Michael filed suit in
California asserting his parental rights using a blood test showing a
84
Id.
85
Prince v. Massachusetts, 321 U.S. 158, 165 (1944).
86
491 U.S. 110, 137 (1989). (Justices Marshall and Blackmun joined this dissent).
87
Id.
88
Id.
89
Id. at 110
90
Id.

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probability of his paternity as 98.07%.91
Gerald contested Michael’s suit,
and the trial court granted summary judgment in favor of Gerald, citing a
state statute that presumed that a child born to a married woman living with
her non-sterile husband is a child of the marriage.92
The only parties who
could challenge this presumption were the husband or the wife, not any
putative fathers.93
Michael argued that the statute violated his liberty interests
as a natural father under the theories of both procedural and substantive due
process.94
The Court quickly dispensed with Michael’s procedural due
process claim and instead focused on whether he had a fundamental right as
a natural father to parent his child regardless of whether the child was born
as a result of marriage.95
The Supreme Court, in a plurality opinion drafted by Justice Scalia,
affirmed the decision of the state court, and rejected Michael’s claim of a
liberty interest in his child, relying on the tradition that presumed the
legitimacy of a child born during the course of a marriage absent some
showing that the husband was “incapable of procreation or had no access to
his wife during the relevant period.”96
Michael argued, in part, that
notwithstanding this tradition, society was growing to accept non-traditional
family arrangements and many states were now allowing putative fathers in
his situation to establish paternity and play meaningful roles in the lives of
their children.97
Justice Scalia rejected that argument.
[I]t is ultimately irrelevant, even for the purposes of
determining current social attitudes towards the alleged
substantive right Michael asserts, that the present law in a
number of States appears to allow the natural father. . .the
theoretical power to rebut the marital presumption[.] What
counts is whether the States in fact award substantive
parental rights to the natural father of a child conceived
within, and born into, an extant marital union that wishes to
embrace the child. We are not aware of a single case, old or
new, that has [identified such a right]. This is not the stuff
91
Id.
92
Id.
93
Id.
94
Id. at 121.
95
Id. at 119-163
96
Id. at 124.
97
Id. at 126-127.

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of which fundamental rights qualifying as liberty interests
are made.98
Interestingly, Justice Scalia’s opinion poses the question of whether
a child might, indeed, have a “liberty interest, symmetrical with that of her
parent, in maintaining her filial relationship.”99
However, the Court refuses
to answer that question by pointing out that the legal argument made by the
child’s attorney was not that the child had a liberty interest in a parental
relationship only with her natural father, Michael, but with both Michael and
Gerald.100
An argument that Justice Scalia says merits “little discussion”
again rests on the lack of tradition requiring states to recognize multiple
fathers.101
Justice White’s dissent asserts that the plurality’s strict reliance on
tradition is a seductive pretense which fails to allow for the idea that what
constitutes tradition and what those traditions mean may be irrelevant or
even obsolete to a specific set of facts at a given time.102
The plurality’s interpretative method is more than novel; it
is misguided. It ignores good reasons for limiting the role of
“tradition” in interpreting the Constitution’s deliberately
capacious language. In the plurality’s constitutional
universe, we may not take notice of the fact that the original
reasons for the conclusive presumption of paternity are out
of place in a world in which blood tests103
can prove virtually
beyond a shadow of a doubt who sired a particular child in
which the fact of illegitimacy no longer plays the
burdensome and stigmatizing role it once did. Nor, in the
plurality’s world, may we deny “tradition” its full scope by
pointing out that the rationale for the conventional rule has
changed over the years, as has the rationale for [the
California law which Michael was challenging.]
Too much is at stake when discussing the balancing act between
protecting the fundamental rights of parents, even abusive ones, and the
fundamental rights of children, especially those who are the victims of abuse,
to fall completely on one side or the other. Professor Laurence Tribe provides
98
Id. at 127. (Emphasis in original).
99
Id. at 130.
100
Id.
101
Id.
102
Id. at 137-138. Of note is that Justice White’s rejection in his dissent of the use of tradition in
determining the presence of a protected liberty interest is directly contra to his reliance on it in his
dissent in Lehr.
103
And now much more accurate DNA tests.

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us with a much needed middle ground position. He opines that, rather than
focus on archaic tradition that may or may not continue to be relevant or rely
on societal whims that can create inconsistencies in the law, constitutional
scholars and judges should seek “unifying principles that will push
constitutional law toward rationality.”104
The threshold question then becomes whether it is rational for a child
to have a substantive due process right to permanency once her parent has
been deemed unfit. The answer is yes. Critics will argue that placing
children’s legal rights on par with or supreme to those of parents, regardless
of circumstance, is statism105
and could create a dangerous condition where
the state supplants its own interests for those of parents.106
However, it is
well established that in cases where children have been abused or neglected,
the state has a vested interest under the legal doctrine of parens patriae.
Under this theory the “state has a wide range of power for limiting parental
freedom and authority in things affecting the child's welfare[.]”107
This
theory fosters an adversarial system that pits the interests of the state against
the liberty interests of parents.108
States are just now beginning to change this
model to offer more protections for children, such as ensuring them the right
to counsel. 109
However, that is the exception rather than the rule. It remains
common for a child to have little or no say in what happens to her, in what
plan the court might order to provide services to her parents, or even whether
she will be placed with relatives or foster parents if she is removed from her
parents.110
It is also common for these children to languish in temporary homes
for years, moving from home to home—a condition called “foster care
drift”111
or in a condition of limbo in the home of an abusive parent while the
litigation of the parent’s rights plays out. There are many factors that lead to
these conditions. A major contributor is the current model wherein parents
are pitted against the state, in quasi criminal proceedings, focused not on a
child’s right to have a stable family, but on the parents’ rights.112
Ensuring
the parents’ procedural due process rights are protected, even after an
104
See Tribe, supra note 13, at 1071 citing Poe v. Ullman, 367 U.S. 497 (1961). (J. Harlan’s dissent).
105
Parham, 442 U.S. at 603.
106
See id.
107
Prince, 321 U.S. at 167.
108
See Ventrell, Marvin & Donald N. Duquette, Child Welfare Law and Practice Representing
Children, Parents, and State Agencies in Abuse, Neglect, and Dependency Cases, Foreword at xxxi,
(2005).
109
Id.
110
Id.
111
Rebecca Aviel, Restoring Equipoise to Child Welfare, 62 HASTINGS L. J. 401, 426 (2010).
112
See Clare Huntington, Rights Myopia in Child Welfare, 53 UCLA L. REV. 637 (2007).

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adjudication of unfitness, only further slows the entire case—sometimes to
a crawl.
While a case delay can result in the child not achieving permanency
in a timely manner, it can also result in a child continuing to be victimized
by her abuser. In Re K.D.113
is a Child in Need of Services (hereafter
CHINS)114
case in the Indiana Supreme Court, in which the child was
adjudicated a CHINS after alleging that her stepfather had sexually abused
her.115
In early 2009, prior to adjudication, the child’s mother (hereafter
Mother) and stepfather (hereafter Stepfather) entered into a program of
Informal Adjustment wherein the parents would agree to participate in court-
ordered services without a formal adjudication. 116
Stepfather had prior
criminal convictions for sexually abusing the daughter of a previous
girlfriend, and he had violated his probation for those convictions by failing
to complete the sex offender treatment ordered by the criminal court.117
He
agreed to participate in a new program of sex offender counseling, undergo
a polygraph test, and complete a sexual history questionnaire as a part of this
program.118
The program was scheduled to last six months.119
Stepfather
failed to complete the agreed-upon services even after the trial court
extended the program for an additional three months to allow him more
time.120
After nine months, a meeting was held between the parents, the
social services case managers, and the family’s counselor.121
Stepfather, for
the first time, refused to participate and asserted his right to a lawyer.122
The State of Indiana filed a formal petition asserting that the child
had been abused and that the family required services that it was unwilling
or unable to receive without the coercive intervention of the court on
November 2, 2009.123
Mother admitted her daughter was a CHINS.
Specifically, Mother admitted the following:
On or about October 30, 2009 the Marion County
Department of Child Services (MCDCS) determined by its
Family Case Manager (FCM) [ ], these children to be in need
of services because their mother, [K.S.] and their stepfather,
[S.S.], have been involved with the DCS through an
113
962 N.E.2d 1249 (Ind. 2012).
114
Indiana refers to child welfare cases as Child in Need of Services or “CHINS” cases. The term
CHINS will be used throughout the discussion of the In Re K.D. case.
115
In Re K.D. 962 N.E.2d at 1252.
116
See Ind. Code §31-34-8 et seq.
117
In Re K.D. 962 N.E.2d at 1252.
118
Id.
119
Ind. Code §31-34-8-6
120
In Re K.E., 962 N.E.2d at 1252. See also Id.
121
Id.
122
Id.
123
Id. citing Ind. Code §31-34-1-1 .

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Informal Adjustment but have failed to successfully
complete all services under the agreement. Specifically,
[Stepfather] is an untreated sexual offender and has not yet
completed his sexual offender treatment, but [Mother]
continues to allow him to live in the home. Therefore the
family can benefit from services.124
The trial court accepted Mother’s admission, adjudicated the child
and her sibling as CHINS, and set the matter for a contested dispositional
hearing to determine what services would be ordered for the family and what
members of the family would be ordered to participate in those services.125
During the contested hearing, Stepfather had counsel present and was
permitted to present evidence, to challenge the evidence introduced by the
state, to call his own witnesses, to cross examine those of the state, and to
give closing arguments.126
On April 5, 2010, nearly six months after the
state’s petition was filed and more than a year after Mother and Stepfather
originally agreed to participate in services through an Informal Adjustment
program, the trial court entered findings of fact and conclusions of law
ordering Stepfather to participate in sex offender services.127
Stepfather appealed on the basis that his due process rights were
violated when he was not afforded the opportunity to have a bench trial. He
called for a fact-finding hearing as permitted in Indiana child welfare cases
on the issue of whether the child had in fact been molested by him.128
The
Indiana Court of Appeals found that his due process rights had been
violated.129
The Indiana Supreme Court granted transfer and agreed with the
Court of Appeals, holding:
While a CHINS determination establishes the status of a
child and a separate analysis as to each parent is not
automatically required, as In re N.E.130
established, there are
fact-sensitive situations where due process guarantees
require separate fact findings for each parent. The due
process of the parties and the status of the child are mutually
124
Id.
125
Id. at 1252-1253.
126
Id. at 1253.
127
Id.
128
Id.
129
In Re K.D. v. DCS, 942 N.E.2d 894 (Ind. App. 2011). (Vacated by the action of the Indiana
Supreme Court taking the case on Petition to Transfer).
130
919 N.E.2d 102 (2010).

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exclusive. Whenever a trial court is confronted with one
parent wishing to make an admission that the child is in need
of services and the other parent wishing to deny the same,
the trial court shall conduct a fact-finding hearing as to the
entire matter.131
By the time this case was resolved in its entirety, more than three
years had passed. Neither the Indiana Court of Appeals decision nor the
Indiana Supreme Court decision mentioned that the entire process was at the
expense of the child’s right to permanency. A key fact paid short shrift by
both courts was that Stepfather continued living in the home with the child
throughout the pendency of the case.132
Stepfather was afforded all possible constitutional protections even
though Mother had admitted that she allowed an untreated sexual offender
to live with her children and that the child and her sibling needed services.
As discussed above, Stepfather was previously convicted of sexually abusing
a child. He had agreed to complete sex offender treatment and failed to do
so after nine months. He was given a contested hearing where he was
represented by counsel, had the opportunity to confront and cross examine
witnesses, call his own witnesses, contest evidence, present his own
evidence, and make legal arguments. But because the hearing afforded to
him was not called the correct type of hearing, the Indiana Supreme Court
reversed. The child was left in limbo for the entire time.
To judges and attorneys, the passage of three years in cases being
litigated up to a state’s supreme court is normal and no cause for comment.
But when the central concern of such a case is a child who will grow,
develop, and mature in an environment where her abuse and abuser go
untreated while the machinations of the legal system focus on the rights of
the abuser and not the abused, the irrationality of such a system becomes
clear. The court’s holding that “the due process of the parties and the status
of the child are mutually exclusive”133
further illustrates the lack of
understanding about the impact that the current model has on children.
There must be a better way forward, and it is found in the idea that
the child has a fundamental right to a stable and healthy family upon a
finding that a parent is unfit. This shift should only occur after an allegation
of unfitness has been made in keeping with applicable state law and after
protections have been granted to ensure the parent’s liberty interest in her
right to raise and care for the child as she sees fit. Upon an adjudication of
unfitness (e.g. that the parent has abused, neglected, or maltreated the child
within the statutory framework established by her respective state), the
131
In Re K.D. 962 N.E.2d at 1259-1260. (Emphasis added).
132
Id. at 1255.
133
Id. at 1260.

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liberty interest shifts away from the parent and to the child. The primary goal
of the child welfare case is then to guard the child’s liberty interest in
achieving permanency—either by returning home to fit parents or by
establishing new familial bonds with new fit parents.
B. THE RATIONALITY OF A FUNDAMENTAL RIGHT TO PERMANENCY
It wasn’t until the 1960s and 1970s that there even developed a
corpus juris for child welfare. 134
Historically, children were seen as the mere
property of their parents until attaining their age of legal majority.135
The
advancement of child welfare law in the 1920s led to the evolution of how
the law viewed children from that of chattel to “a sympathetic underclass
worthy of welfare” but not recognized as constitutional actors for purposes
of securing their own wellbeing.136
While much has been done to improve
the lot of children involved in the child welfare system, especially as they
have attained the right to legal representation by appointment of counsel or
a guardian ad litem,137
the process remains focused on the constitutional
rights of the parents and not on those of children.138
If there is one single thread from the various opinions written in the
Troxel decision, it is that fit parents enjoy a substantive due process right to
parent their children as they see fit.139
When a court of competent jurisdiction
has deemed a parent unfit, however, the child’s substantive due process right
to permanency, as discussed below, should take priority over the unfit
parent’s rights. Indeed, the Title IV-E requirement for reasonable efforts to
protect a child and to preserve family structures takes a substantial step in
this direction.140
As briefly mentioned above, the executive branch of the federal
government, through the Social Security Administration, administers federal
funding for state child welfare agencies pursuant to the Adoption and Safe
Families Act of 1997.141
To ensure compliance with the stated goals of
134
VENTRELL & DUQUETTE, supra note 108, Foreword at xxx.
135
Id.
136
Id.
137
Id. See also, In Re Gault, 387 U.S. 1 (1967).
138
A good deal has been written concerning a child’s right to counsel in child welfare cases,
however, most of this scholarship focuses on the process afforded the child rather than a substantive
rights analysis. For more on procedural due process for children in child welfare cases see, inter
alia, Pokempner, supra note 92.
139
Troxel, 530 U.S. at 68, 80, & 86. (J. O’Connor’s plurality; J. Thomas’ concurrence; and J.
Stevens’ dissent).
140
42 U.S.C § 671(15)(A-F) (2014).
141
Pub. L. No. 105-89, 111 Stat. 2115 (1997) codified as 42 U.S.C. § 671 et seq.

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protecting children, preventing the neglect, abuse, and exploitation of
children, supporting at-risk families, promoting permanency, and ensuring a
well-trained child welfare workforce, Title IV-E requires states to perform
certain steps in their child welfare judicial processes or risk losing some or
all of their federal funding.142
Integral to the federal government’s exercise
of this influence is the requirement of “reasonable efforts.”143
The concept of reasonable efforts in child welfare jurisprudence
requires a multi-pronged analysis. First, state child welfare agencies must
make reasonable efforts to “prevent or eliminate the need for removing the
child from [her] home.”144
Next, if safety issues preclude the use of
reasonable efforts to prevent removal of the child from her home, reasonable
efforts must be made to return the child to her home in a timely manner.145
Subsequently, if safety issues continue to prevent the child from returning to
her home, the state must make reasonable efforts to ensure that the child
achieves some permanency plan other than returning to her home in a timely
manner.146
Finally, if a parent has committed a particularly heinous act
toward the child or another child of the parent, or if the child welfare court
has involuntarily terminated the parent’s rights to a sibling of the child, the
state may dispense with the requirement of reasonable efforts altogether.147
Through all of these analyses runs the mandate that the child’s health and
safety be the paramount concern.148
However, as it is the states that directly manage and run the child
welfare system, there are myriad ways in which states interpret and approach
the legal issues in child welfare cases. Just one example is the fact that of
the fifty-one states and territories reporting child abuse and neglect data to
the Children’s Bureau Division of the U.S. Department of Health and Human
Services in 2013, there were five distinct burdens of proof employed to
determine whether abuse and neglect occurred.149
Thirty-six states required
a preponderance of the evidence, eight required credible evidence, five
applied a reasonableness standard, two applied a clear and convincing
standard, and one required only a showing of probable cause.150
Even the
concept of whether a child or youth should be afforded the most basic
procedural due process rights—such as the right to be represented by counsel
prior to removal from her home—remains controversial in many states.151
142
42 U.S.C. §§ 621-624 (2014).
143
42 U.S.C § 671(15)(A-F) (2014).
144
42 U.S.C. § 671(15)(B)(i) (2014).
145
42 U.S.C. § 671(15)(B)(ii) (2014).
146
42 U.S.C. § 671(15)(C) (2014).
147
42 U.S.C. § 671(15)(D) (2014).
148
42 U.S.C. § 671(15)(A) (2014).
149
Children’s Bureau, U.S. Dep’t of Health and Human Servs., Child Maltreatment 2012 at 125
(2013).
150
Id.
151
See Pokempner, et al., supra note 92.

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Underlying all of these legal considerations is a basic premise that is
often missed by child welfare lawyers and judges: children are at the very
center of child welfare cases. Children are unique figures in the law. For the
most part, at least until very recently, the law was written with little to no
regard for children. However, not only are children the subject of child
welfare cases, they are also active participants.152
What makes them
completely different from other litigants in judicial actions is that children
grow, develop, and change over time. The passage of time may have the
greatest impact on them.
Children who are removed from their homes are subjected to
extreme amounts of stress and trauma.153
This stress and trauma adds to the
preexisting stress and trauma that led to the child’s removal in the first place.
In the current judicial model, which focuses the legal process on the parent
rather than the child, the child’s status depends on whether her parents follow
through with the care and treatment plan that the trial court orders. The
longer her parents take to achieve a satisfactory level of safety and stability,
the longer the child remains out of her home and exposed to stress and
trauma. Legal processes aimed at parents who are either unable or unwilling
to improve their ability to parent only further lengthen the time a child is not
in a healthy and permanent family structure. Given that we now know about
how stress and trauma affect children, that many children in the child welfare
system languish in temporary foster care longer than necessary,154
and that
the current model focuses on the rights of parents even after they have been
deemed unfit, a shift toward a more child-centric constitutional analysis is
needed.
A problem arises when a parent is afforded all procedural due
process measures to protect her substantive due process right to parent her
child, but the parent is then adjudicated to have abused or neglected the child
such that the safety of the child precludes returning her to her parent’s home.
At this point, the substantive due process rights which currently continue to
flow to the parent should shift to the child to protect her right to achieve
permanency, either by returning to the care of her parent, or by achieving a
new and sustainable family structure that is able to meet her needs.
V. CONCLUSION
152
Id.
153
Jim Casey, Youth Opportunities Initiative, The Adolescent Brain: New Research And Its
Implications For Young People Transitioning From Foster Care 1, 26 (2011).
154
Children’s Bureau, U.S. Dep’t of Health and Human Servs., Trends in Foster Care and Adoption:
FFY 2002-FFY 2013 (2014).

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In his dissent in Poe, Justice Harlan posits that “[t]he liberty
protected by the Due Process Clause of the Fourteenth Amendment is not a
series of isolated points pricked out in terms of the taking of property; the
freedom of speech, press, and religion; the right to keep and bear arms; the
freedom from unreasonable search and seizure; and so on.”155
Rather, it is a
“rational continuum.”156
In other words, the best approach to determine
whether a liberty interest exists is to determine whether the interest asserted
“is close enough to those already protected to be deemed an aspect of
‘liberty’ as well.”157
It is well established that children have certain fundamental liberty
interests in avoiding involuntary confinement, in expression of political
speech, and in procedural due process in criminal proceedings.158
All of these
liberty interests directly relate to a child’s interest in her own well-being,
separate and apart from the interests of her parents. As is clear from Smith v.
Organization of Foster Families for Equality and Reform159
through Michael
H. and Troxel, the Court has opened the door to the idea that a child may
have her own liberty interest in a healthy and stable family. Smith, Michael
H., and Troxel carve out a liberty interest for children to be parented where
none currently exists.
Professor Tribe employs Ronald Dworkin’s analogy of a chain novel
to illustrate this concept.160
Ronald Dworkin analogizes the process of using precedent
to the composition of a chain novel, a book written by many
authors. Each successive author must continue the story
written by those who preceded her. In Dworkin’s analogy,
just as we measure the quality of the chain novelist’s
creation by how well it builds upon what came before, so
too the judge’s opinion is evaluated by asking how well it
fits with precedent.161
The concept of an evolving “story of freedom,”162
combined with the
tremendous advances in the understanding of the neurology of children and
155
Poe, 367 U.S. at 543.
156
Id.
157
Michael H., 491 U.S. at 142.
158
See In Re Gault, 387 U.S. 1 (1967); Parham v. J.R., 442 U.S. 584 (1979); Tinker v. Des Moines
Independent Community School District, 393 U.S. 503 (1969).
159
431 U.S. 816 (1977).
160
Tribe, supra note 14, at 1072 citing Ronald Dworkin, A Matter of Principle, 57 HARVARD L.
REV. 146-166 (1985).
161
Id.
162
Id. at 1074.

SKEENS
their development,163
renders the legal tradition of vesting abusive parents
with an impenetrable liberty interest in their right to parent—at the expense
of a child’s right to have a stable and healthy family—irrelevant.
It is axiomatic at best and paronomasia at worst to say that children
are the future. What makes this idea an axiom, however, is that it is true.
“Truth, like all other good things, may be loved unwisely[.]”164
If the legal
system’s prime directive is to administer justice wisely in all things, then
treating children like little adults, or worse, like mere possessions, is the
failure of form over substance. Children are not sympathetic creatures
deserving of the pity of adults. They comprise a meaningful portion of
society. While they do not possess the same physical, emotional, or
psychological development as adults, it is this lack of maturity—this youth—
that makes them even more deserving of protection, not less.
Justices Stevens and Scalia invite the discussion concerning the
fundamental rights of children when they say, “this Court has not yet had
occasion to elucidate the nature of a child’s liberty interests in preserving
established familial or family-like bonds,”165
and “[w]e have never had
occasion to decide whether a child has a liberty interest symmetrical with
that of her parent, in maintaining her filial relationship.”166
The risk of not
having the discussion is too great. The current model serves only to create
an “underclass worthy of welfare.”167
A new model must be forged. The current system must evolve to
recognize children as persons under the law entitled to protection and
recognition of their liberty interest in their own well-being. Recognition of a
substantive due process right to permanency in their family lives achieves
this end. While recognition of such a right does not end or mollify the
poverty, substance abuse, mental illness, or lack of education that contribute
to child abuse and neglect, it will compel the judicial system to place the
interests of the victims of that abuse at the center of child welfare
jurisprudence. This will enable children to achieve and maintain needed
permanency in truly meaningful ways.
163
This includes studies on the effects of trauma (physical, emotional, and psychological) and the
impact of maltreatment on children, among other research.
164
Pearce v. Pearce, 1 De Gex & Sm. 28, 29 (1846).
165
Troxel, supra note 42, at 88.
166
Michael H., supra note 86, at 130.
167
See Ventrell, supra note 109, at Foreword xxx.

GALENDEZ
THERE’S NO PLACE LIKE “ESSENTIALLY AT
HOME”: GENERAL JURISDICTION AFTER
DAIMLER AG V. BAUMAN
NICKOLAS GALENDEZ
**
I.
INTRODUCTION.................................................................................................27
I. GENERAL JURISDICTION IN GENERAL .....................................................29
A. International Shoe Co. v. Washington..............................................30
B. Perkins v. Benguet Consolidated Mining Co....................................32
C. Helicopteros Nacionales de Colombia v. Hall..................................34
D. Goodyear Dunlop Tires Operations, S.A. v. Brown.........................36
II. DAIMLER AG V. BAUMAN ......................................................................38
A. Background Facts and Procedural History .......................................39
B. Justice Ginsburg’s Majority Opinion................................................40
C. Justice Sotomayor’s Concurring Opinion.........................................42
D. Sotomayor’s Concerns with the Proportionality Test.......................45
III. THE IMPACT OF BAUMAN ON GENERAL JURISDICTION ........................46
A. Adopting the Proportionality Test ...................................................48
B. Justifications for the Proportionality Test.........................................51
1. Reciprocity.......................................................................................................51
2. Predictability....................................................................................................52
3. State Sovereignty and Convenience..............................................................53
CONCLUSION...............................................................................................55
II.
III.
**
J.D. 2015, Michigan State University College of Law; B.A. 2010, University of Michigan. The
author would like to thank Professor Philip A. Pucillo for the mentorship, support, and guidance
throughout the note-writing process and during law school. The author would also like to thank
the entire Michigan State Law Review (especially Katherine E. Wendt for her advice and
patience), as well as the Dartmouth Law Journal for the hard work in preparing this written work
for publication. Lastly, the author would like to thank his family and friends for all of the love,
support, and encouragement in his life.

GALENDEZ
Fall 2015 THERE’S NO PLACE LIKE “ESSENTIALLY AT HOME” 27
IV. INTRODUCTION
Deep within the “vague contours”1
of the Fourteenth Amendment’s
Due Process Clause2
and down the yellow brick road of personal jurisdiction
exist two equally vague concepts: specific jurisdiction and general
jurisdiction.3
Following the Court’s 2011 decision in Goodyear Dunlop Tires
Operations, S.A. v. Brown,4
and in anticipation of Daimler AG v. Bauman,5
several scholars hoped that the Supreme Court would take advantage of the
next opportunity to clarify the meaning of “essentially at home”6
and provide
lower courts with additional guidance when conducting general jurisdiction
analysis.7
Unfortunately, in holding that California’s exercise of general
1
Rochin v. California, 342 U.S. 165, 170 (1952).
2
U.S. Const. amend. XIV. (“[N]or shall any State deprive any person of life, liberty, or property,
without due process of law . . . .”).
3
See, e.g., Lea Brilmayer et al., A General Look at General Jurisdiction, 66 TEX. L. REV. 721, 724
(1988) (arguing that the Supreme Court’s rules and analysis in general jurisdiction cases “provide
some guidance,” but courts are uncertain about “the exact status and boundaries of general
jurisdiction”); Mary Twitchell, The Myth of General Jurisdiction, 101 HARV. L. REV. 610, 629-30
(1988) (explaining that “the confusion in contemporary approaches to general jurisdiction” exists
because “courts have no clear concept of what general jurisdiction is”); Howard M. Erichson, The
Home-State Test for General Personal Jurisdiction, 66 VAND. L. REV. EN BANC 81, 81-82
(admitting that “[t]he standard for general jurisdiction remains unsatisfactorily vague, with
ambiguous Supreme Court guidance on doctrine”); Carol Andrews, Another Look at Personal
Jurisdiction, 47 WAKE FOREST L. REV. 999, 1001 (2012) (mentioning how the Supreme Court’s
vague standard for determining when general jurisdiction exists causes confusion); Harold S.
Lewis, Jr., The Three Deaths of “State Sovereignty” and The Curse of Abstraction in the
Jurisprudence of Personal Jurisdiction, 58 NOTRE DAME L. REV. 699, 699 (1983) (criticizing the
area of law of as “vague, and counterproductive and unworkable”); Christopher D. Cameron &
Kevin R. Johnson, Death of a Salesman?: Forum Shopping and Outcome Determination Under
International Shoe, 28 U.C. DAVIS L. REV. 769, 773 (1995) (discussing how the lack of a clear rule
creates uncertainty for lower courts and results in “serious injustice”); cf. Erwin Chemerinsky,
Assessing Minimum Contacts: A Reply to Professors Cameron and Johnson, 28 U.C. Davis L. Rev.
863, 866-68 (1995) (acknowledging that vague standards may lead to uncertainty, but claiming that
those standards properly drive the inquiry toward the concepts of fairness and due process which
are at “the core of personal jurisdiction”).
4
Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011).
5
Daimler AG v. Bauman, 571 U.S. ___ (2014).
6
Goodyear, 131 S. Ct. at 2851 (2011) (announcing the rule that “[a] court may assert general
jurisdiction over foreign . . . corporations to her any and all claims against them when their
affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home
in the forum State”) (citing International Shoe Co. v. Washington, 326 U.S 310, 317 (1945))
(emphasis added).
7
See, e.g., Lonny Hoffman, Further Thinking About Vicarious Jurisdiction: Reflecting on
Goodyear v. Brown and Looking Ahead to Daimler AG v. Bauman, 34 U. PA. J. INT’L L. 765 (2013);
Taylor Simpson-Wood, In the Aftermath of Goodyear Dunlop: Oyez! Oyez! Oyez! A Call for A
Hybrid Approach to Personal Jurisdiction in International Products Liability Controversies, 64

GALENDEZ
jurisdiction over a foreign corporation violated the Due Process Clause, the
Bauman Court neither clarified the existing law nor simplified the analysis.8
On the contrary, Bauman narrowed the scope of general jurisdiction while
creating an additional layer of analysis for lower courts, arguably resulting
in uncertainty for both small and large corporations alike.9
In footnote 20 of the Court’s opinion, Justice Ginsburg explained
that “[g]eneral jurisdiction . . . calls for an appraisal of a corporation’s
activities in their entirety, nationwide and worldwide.”10
While concurring
in the judgment, Justice Sotomayor wrote separately to criticize the Court
for “decid[ing] this case on a ground that was neither argued nor passed
below, and that Daimler raised for the first time in a footnote to its brief.”11
Furthermore, she took issue with what she called the Court’s proportionality
test and outlined four reasons why the new rule would lead to unfair results.12
Regardless of her reservations about the Court’s rationale, Justice Sotomayor
concluded “that no matter how extensive Daimler’s contacts with California,
that State’s exercise of [general] jurisdiction would be unreasonable.”13
In light of Bauman, the yellow brick road of general jurisdiction
appears to have vanished into thin air because now, there really is no place
like “essentially at home.”14
As Justice Sotomayor suggested, the Court
abandoned its “settled approach” in Bauman and effectively limited general
jurisdiction to a foreign defendant’s place of incorporation or principal place
of business.15
In her opinion, the Court’s proportionality test was inconsistent
with principles of fairness and reasonableness because the new rule favored
“national and multi-national conglomerates” over smaller companies.16
Additionally, Justice Sotomayor emphasized the absurdity of treating
individuals and corporations differently for the purposes of general
BAYLOR L. REV. 113 (2012); Patrick J. Borchers, J. McIntyre Machinery, Goodyear, and the
Incoherence of the Minimum Contacts Test, 44 CREIGHTON L. REV. 1245 (2011). See also
Erichson, supra note 3, at 83 (explaining how Bauman would “offer[] the Court an opportunity to
clarify the general jurisdiction standard” in Goodyear).
8
Bauman, 571 U.S. ____, slip op. at 16-19 (Sotomayor, J., concurring).
9
Id.; Charles W. “Rocky” Rhodes, Clarifying General Jurisdiction, 34 SETON HALL L. REV 807,
810 (noting that a vague general jurisdiction doctrine’s “resulting lack of predictability contravenes
notions of both fairness and efficiency”).
10
Id., slip op. at 21 n.20 (majority opinion).
11
Id., slip op. at 2 (Sotomayor, J., concurring) (citing Brief for Petitioner, at 31-32 n.5).
12
Id., slip op. at 16-19.
13
Id., slip op. at 2.
14
See Bauman, slip op. at 19 (Sotomayor, J., concurring).
15
Id., slip op. at 16 (“Suppose a company divides its management functions equally among three
offices in different States, with one office nominally deemed the company’s corporate headquarters.
If the State where the headquarters is located can exercise general jurisdiction, why should the other
two States be constitutionally forbidden to do the same?”).
16
Id., slip op. at 17 (“Whereas a larger company will often be immunized from general jurisdiction
in a State on account of its extensive contacts outside the forum, a small business will not be.”).

GALENDEZ
jurisdiction.17
Finally, she concluded, the Court’s approach in Bauman
offended due process by rendering plaintiffs unable to sue anywhere in the
United States where no other judicial system is available.18
However, despite
Justice Sotomayor’s concerns, the Court must take advantage of the next
opportunity to address general jurisdiction by fully adopting the Court’s
proportionality test as an additional element in analyzing “essentially at
home.” After Bauman, general jurisdiction should be exercised over a
foreign corporation in cases when its “affiliations with the [forum] State are
‘so continuous and systematic,’” when viewed in light of its nationwide and
worldwide activities,19
“as to render them essentially at home in the forum
State.” If fully adopted by the Court, rather than hidden in a footnote, the
Court’s proportionality test would neither stray from International Shoe nor
violate the Due Process Clause; in fact, the new rule would result in greater
fairness and reasonableness in today’s modern world.20
Part I of this Note explores personal jurisdiction from its roots in the
landmark case of International Shoe Co. v. Washington21
to the Court’s three
general jurisdiction cases prior to Bauman: Perkins v. Benguet Consolidated
Mining Co.,22
Helicopteros Nacionales de Colombia, S.A. v. Hall,23
and
Goodyear Dunlop Tires Operations S.A. v. Brown.24
Part II first sets forth
the background and procedural history of Bauman, and then discusses the
Court’s opinion and Justice Sotomayor’s concurrence to reconcile the
differences between the two. Part III of this Note suggests that the Court
should expressly adopt the proportionality test to complement the
“essentially at home” analysis. Furthermore, Part III reconciles Bauman with
earlier general jurisdiction precedent, provides a theoretical justification for
adopting the proportionality test, and addresses other concerns that may
surface post-Bauman.
V. I. GENERAL JURISDICTION IN GENERAL
17
Id., slip op. at 18 (explaining how an individual who possesses a single contact in a forum State
is more susceptible to a State’s jurisdiction than “a large corporation that owns property, employs
workers, and does billions of dollars’ worth of business in the State”).
18
Id., slip op. at 19.
19
Id., slip op. at 21 n. 20 (majority opinion).
20
See infra Part III.B and C & accompanying text; see also Donald Earl Childress III, General
Jurisdiction and the Transnational Law Market, 66 VAND. L. REV. EN BANC 67, 78 (“[T]he
importance of clear rules that denote where a foreign corporation is subject to suit are paramount”).
21
International Shoe Co. v. Washington 326 U.S. 310 (1945).
22
Perkins v. Benguet Consolidated Mining Co, 342 U.S. 437 (1952).
23
Helicopteros Nacionales de Colombia, S.A. v. Hall 466 U.S. 408 (1984).
24
Goodyear, 131 S. Ct 2846 (2011).

GALENDEZ
Black’s Law Dictionary defines jurisdiction as the “[a]
government’s general power to exercise authority over all persons and things
within its territory.”25
Personal jurisdiction concerns the ability of a court to
exercise its authority “over the defendant’s person, his property, or the rest
that is subject of the suit.”26
Before 1945, the scope of personal jurisdiction
was far narrower than today.27
However, in International Shoe Co. v.
Washington,28
the Court changed personal jurisdiction jurisprudence and the
doctrine’s scope was expanded in response to “the nation’s increasingly
industrialized economy, the advent of high speed transportation and
communication, and the mobility of the population.”29
A. INTERNATIONAL SHOE CO. V. WASHINGTON
In International Shoe Co. v. Washington, the Court addressed the
question of whether International Shoe’s corporate activities in Washington
justified the exercise of personal jurisdiction over the corporation.30
International Shoe argued that Washington lacked jurisdiction because the
company was not incorporated in Washington, was not “doing business” in
Washington, had no agent in Washington, and was not employing anyone in
Washington.31
As a company incorporated in Delaware with St. Louis as its
principal place of business, International Shoe’s footprint touched several
states besides Washington.32
However, in Washington, International Shoe lacked an office and
did not enter into any contracts to buy or sell merchandise.33
Between the
years relevant to the litigation, International Shoe had between eleven and
thirteen workers paid on commission, who resided in Washington and
reported to sales managers in St. Louis.34
As a shoe manufacturer and seller,
International Shoe provided its employees with one pair of each available
shoe for use as a sample in the course of business.35
Occasionally, the
salesmen rented out various buildings to temporarily display shoe samples
to potential customers, and International Shoe reimbursed the salesmen for
25
Black’s Law Dictionary (9th
ed. 2009).
26
4 CHARLES ALAN WRIGHT ET AL, FEDERAL PRACTICE AND PROCEDURE § 1063 (3d ed. 1998).
27
Id. § 1067; Hoffman, supra note 7, at 772 (listing the only two bases for exercising jurisdiction
as “physical present in the forum or consent”).
28
326 U.S. 310 (1945).
29
4 CHARLES ALAN WRIGHT ET AL, FEDERAL PRACTICE AND PROCEDURE § 1063 (3d ed. 1998).
30
Int’l Shoe, 326 U.S. at 311.
31
Id. at 312.
32
Id. at 313.
33
Id.
34
Id.
35
Id. at 313-14.

GALENDEZ
that expense.36
With respect to the employment relationship, International
Shoe’s salesmen had limited authority to show samples and could only place
orders under the company’s terms.37
International Shoe argued that, based on its insufficient presence in
Washington, the State’s exercise of jurisdiction violated the Due Process
Clause.38
Writing for the Court, Justice Stone described the evolution of
jurisdiction from presence-based to contacts-based analysis and explained
[D]ue process requires only that in order to subject a
defendant to a judgment in personam, if he be not present
within the territory of the forum, he have certain minimum
contacts with it such that the maintenance of the suit does
not offend ‘traditional notions of fair play and substantial
justice.’39
To stress the importance of reasonableness in the Due Process Clause context
of jurisdiction, the Supreme Court stated that forcing a corporation to litigate
“away from its home or other jurisdiction where it carries on more substantial
activities has been thought to lay too great and unreasonable a burden on the
corporation.”40
In assessing whether the Due Process Clause had been or
would be violated by a state court’s exercise of jurisdiction, Justice Stone
instructed, the “quality and nature of the activity in relation to the fair and
orderly administration of the laws” is paramount.41
Therefore, he concluded,
the Due Process Clause would likely be violated where a corporation has “no
contacts, ties, or relations” with the forum State attempting to exercise
jurisdiction over that corporation.42
Before announcing the holding, Justice Stone described the concept
that would eventually become known as specific jurisdiction:
[T]o the extent that a corporation exercises the privilege of
conducting activities within a state, it enjoys the benefits and
protection of the laws of that state. The exercise of that
privilege may give rise to obligations; and, so far as those
36
37
Id.
38
Id. at 315.
39
Id. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)); Hoffman, supra note 7, at 772
(explaining that “International Shoe announced a more flexible contacts-based fairness test”).
40
Id. at 317.
41
Id. at 319.
42

GALENDEZ
obligations arise out of or are connected with the activities
within the state, a procedure which requires the corporation
to respond to a suit brought to enforce them can, in most
instances, hardly be said to be undue.43
With this in mind, the Court applied the test to International Shoe’s activities
within Washington and held that the corporation’s activities were
“systematic and continuous,” rather than “irregular” or “casual,” which
resulted in a high volume of interstate profits for International Shoe.44
The
Court noted that, in the course of its activities in Washington, International
Shoe was afforded the protection and benefits of Washington law and the
claim arose out of the corporation’s activities in Washington.45
Therefore,
based on International Shoe’s “sufficient contacts or ties” with Washington,
Washington’s exercise of jurisdiction would neither violate the Due Process
Clause nor be unreasonable. 46
While applying what is now called specific jurisdiction, the
International Shoe Court also discussed the concept now referred to as
general jurisdiction.47
In the words of Justice Stone:
While it has been held in cases on which appellant relies that
continuous activity of some sorts within a state is not enough
to support the demand that the corporation be amendable to
suits unrelated to that activity, there have been instances in
which the continuous corporate operations within a state
were thought so substantial and of such a nature as to justify
the suit against it on causes of action arising from dealings
entirely distinct from those activities.48
Then, only seven years later, the Court ultimately laid down the foundation
for the general jurisdiction doctrine in Perkins v. Benguet Consolidated
Mining Co.49
B. PERKINS V. BENGUET CONSOLIDATED MINING CO.
In 1952, the Court granted certiorari in Perkins v. Benguet
Consolidated Mining Co. to determine whether the Due Process Clause
43
Id. (emphasis added).
44
Id. at 320.
45
Id.
46
Id. at 320.
47
See id. at 318.
48
Int’l Shoe, 326 U.S. at 318 (emphasis added).
49
342 U.S. 437 (1952).

GALENDEZ
prohibited Ohio from exercising personal jurisdiction over a foreign mining
company from the Philippines where the claim involved an incident
occurring outside of Ohio and was entirely unrelated to any of the company’s
business activities in Ohio.50
Benguet Consolidated Mining Company
(Benguet) owned property in the Philippines and operated the company there
until the Japanese occupation, during which Benguet’s president temporarily
relocated to Ohio.51
He regularly conducted Benguet’s business activities
there, after which he was served with a summons for a claim relating to
unpaid dividends to stockholders and other damages for failure to issue stock
certificates.52
After noting that Benguet had “been carrying on in Ohio a
continuous and systematic, but limited, part of its general business,” the
Court elaborated on Benguet’s in-state activities.53
While situated in Ohio,
Benguet’s president/general manager/principal stockholder: kept an office
for both personal and business-related activities; stored office documents in
that office; wrote correspondence to employees there; issued checks and
maintained bank accounts; held directors’ meetings at his own house and at
the office; and managed the company’s affairs.54
The Court concluded that,
because Benguet “carried on in Ohio a continuous and systematic
supervision of the necessarily limited wartime activities of the company,”
Ohio was free to decide whether or not to exercise jurisdiction over
Benguet.55
By holding that the Due Process Clause did not prohibit Ohio from
exercising jurisdiction over Benguet, the Court planted “[t]he roots of the
contemporary doctrine of ‘general jurisdiction’”56
The Perkins Court
essentially followed the Court’s rationale in International Shoe and
distinguished between specific and general jurisdiction by recognizing the
former and applying the latter in resolving whether Ohio could “entertain a
cause of action against a foreign corporation, where the cause of action arose
from activities entirely distinct from its activities in” that state.57
With
“general fairness to the corporation” in mind, the Court emphasized that each
determination of personal jurisdiction should be made on a case-by-case
50
Id. at 438. In Perkins, the plaintiff sought unpaid dividends and other damages related to the
mining company’s alleged failure to issue stock certificates. Id. at 439.
51
Id. at 447, 449.
52
Id. at 439.
53
Id. at 438.
54
Id. at 448.
55
Perkins, 342 U.S. at 448.
56
4 CHARLES ALAN WRIGHT ET AL, FEDERAL PRACTICE AND PROCEDURE § 1067.5 (3d ed. 1998).
57
Perkins, 342 U.S. at 447 (citing Int’l Shoe Co. v. Wash., 326 U.S. 310, 318 (1945)).

GALENDEZ
basis.58
However, in this particular case, the Court concluded that Benguet’s
president had paid “personal attention” to the “continuous and systematic”
activities of the mining company; therefore, Ohio’s exercise of jurisdiction
over Benguet did not violate due process.59
C. HELICOPTEROS NACIONALES DE COLOMBIA V. HALL
In 1984, thirty-two years after Perkins was decided, the Supreme
Court revisited general jurisdiction for only the second time in Helicopteros
Nacionales de Colombia, S.A. v. Hall.60
The case raised the question of
“whether . . . the contacts of a foreign corporation with . . . Texas were
sufficient to allow a Texas state court to assert jurisdiction over the
corporation in a cause of action not arising out of or related to the
corporation’s activities within the State.”61
Wrongful death claims were
brought against Helicopteros Nacionales (Helicol) by individuals
representing four United States citizens who died in Peru when a Helicol-
manufactured helicopter crashed.62
In the Court’s opinion, Justice Blackmun started his analysis with
the proposition that the Due Process Clause is not violated by a state’s
exercise of personal jurisdiction “when there are sufficient contacts between
the State and the foreign corporation.”63
Then, he proceeded to examine
whether Helicol’s contacts with Texas “constitute the kind of continuous and
systematic general business contacts the Court found to exist in Perkins.”64
The record showed that Helicol’s only contacts with Texas included sending
its CEO on a one-time trip to Houston to negotiate a contract, depositing
Texas-drawn checks into its bank account in New York, spending large sums
on various helicopter goods and services, and sending employees to Fort
Worth for training and other services.65
After examining Helicol’s contacts, the Court swiftly rejected the
notion that the Helicol CEO’s one-time trip to Houston amounted to a
continuous and systematic contact.66
Next, with respect to Helicol accepting
checks drawn from Texas banks, the Court noted the “negligible
58
Id. at 445.
59
Id. at 438, 445. Justice Minton wrote a dissenting opinion that urged for a hands-off approach
with respect to federal courts interfering with state courts and equated the majority’s holding as
“an advisory opinion to the Ohio Supreme Court.” Id. at 422 (Minton, J., dissenting).
60
466 U.S. 408 (1984).
61
Id. at 408-09.
62
Id. at 409-10. Helicol was incorporated in Colombia with the city of Bogota as its principal place
of business. Id.
63
Id. at 414 (citations omitted).
64
Id. at 416.
65
Id.
66
Helicopteros, 466 U.S. at 416.

GALENDEZ
significance” of that conduct in evaluating Helicol’s contacts.67
In dismissing
the notion that Helicol’s purchases of various helicopter equipment from a
Texas company amounted to continuous and systematic contacts, the Court
explained, “mere purchases, even if occurring at regular intervals, are not
enough.”68
Similarly, Helicol’s practice of sending its employees to Texas
for training did not amount to the level of a continuous and systematic
contact.69
Therefore, since none of Helicol’s contacts with Texas were
similar to the kind of affiliations in Perkins, the Court held that Helicol’s
contacts were insufficient to allow Texas to exercise general jurisdiction over
the corporation.70
In a dissenting opinion, Justice Brennan, while admitting that the
question of contacts is often fact-specific, noted two glaring problems with
the Court’s rationale.71
First, he criticized the Court for supporting its
rationale with precedent “whose premises have long been discarded.”72
Second, he argued the Court was “placing severe limitations on the type and
amount of contacts that will satisfy the constitutional minimum” by failing
to distinguish between controversies relating to and those arising out of a
foreign defendant’s contacts.73
In fact, he believed that Helicol’s contacts
with Texas were “sufficiently important, and sufficiently related to the
underlying cause of action” such that Texas exercising jurisdiction over
Helicol would not violate the Due Process Clause.74
In reading Perkins, Justice Brennan suggested that the “continuous
and systematic” analysis may not be the necessary minimum constitutional
threshold for state court’s exercise of general jurisdiction.75
Furthermore, in
criticizing the Court’s choice in reliance on outdated precedent, he focused
on the evolution of commerce and its impact on the concept of jurisdiction:
The vast expansion of our national economy during the past
several decades has provided the primary rationale for
expanding the permissible reach of a State’s jurisdiction
under the Due Process Clause. By broadening the type and
67
Id.
68
Id. at 418.
69
Id.
70
Id.
71
Helicopteros, 466 U.S. at 419-20 (Brennan, J., dissenting).
72
Id. at 420.
73
Id.
74
Id.
75
Id. at 421 (“Nothing in Perkins suggests, however, that such ‘continuous and systematic’ contacts
are a necessary minimum before a State may constitutionally assert general jurisdiction over a
foreign corporation.”)

GALENDEZ
amount of business opportunities available to participants in
interstate and foreign commerce, our economy has
increased the frequency with which foreign corporations
actively pursue commercial transactions throughout the
various States. In turn, it has become both necessary, and, in
my view, desirable to allow the States more leeway in
bringing the activities of these nonresident corporations
within the scope of their respective jurisdictions.76
While Justice Brennan ultimately held that Texas could exercise specific
jurisdiction over Helicol and questioned why the Court failed to distinguish
between contacts “arising out of” and those “related to,” his dissent
emphasized that “the principal focus” in determining jurisdiction must
revolve around fairness and reasonableness.77
D. GOODYEAR DUNLOP TIRES OPERATIONS, S.A. V. BROWN
In Goodyear Dunlop Tires Operations, S.A. v. Brown, decided
seventeen years after Helicopteros, the Court agreed to review a state’s
exercise of general jurisdiction for the third time78
to decide whether a
foreign subsidiary of an American parent company was subject to personal
jurisdiction in state court for an incident “unrelated to the activity of the
subsidiaries in the forum State.”79
The complaint in Goodyear was filed after
a faulty tire produced by a Turkish subsidiary of The Goodyear Tire and
Rubber Company (Goodyear USA) caused an accident in France that killed
two North Carolina teenagers.80
The two teenagers’ parents then sued
Goodyear USA in North Carolina, along with three of its foreign
subsidiaries.81
However, the three foreign subsidiaries claimed that North
Carolina could not exercise personal jurisdiction over them because, beyond
comprising only “a small percentage” of Goodyear USA tires that ultimately
reached North Carolina, the three foreign subsidiaries had no other contacts
with the state.82
76
Id. at 422.
77
Helicopteros, 466 U.S. at 427.
78
Goodyear Dunlop Tires Operations v. Brown, 131 S. Ct. 2846, 2854 (2011) (discussing the two
previous Supreme Court decisions addressing general jurisdiction).
79
Id. at 2846.
80
Id. at 2850.
81
Id. Goodyear USA is incorporated in Ohio and the three named foreign subsidiaries were located
in Turkey, France, and Luxembourg. Id.
82
Id. (“They have no place of business, employees, or bank accounts in North Carolina. They do
not design, manufacture, or advertise their products in North Carolina. And they do not solicit
business in North Carolina or themselves sell or ship tires.”

Dartmouth Law Journal Vol.13.2 Fall 2015

Dartmouth Law Journal Vol.13.2 Fall 2015

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