"Home Alone II" revisited--25 years later, bad cases still make for bad law.
It’s hard to believe I’ve been fighting for much more than 25 years for the rights of families to raise their children without being second guessed at every turn by Child Protective Services. But I got a history lesson of my own when the Beacon News (affiliated with the Chicago Tribune In western suburbs) called me for comments on the 25 year anniversary of the Illinois “Home Alone II” case—a case I would be happy to forget. The case itself was firmly in my memory, however, because I remember quite well the day 25 years ago when I had returned from a vacation of my own. Out of the blue, I was asked to appear on Chicago Tonight to talk about the Chicago-area version of this “Home Alone II” story that was all over the local newspapers. Since it had been all but impossible to get invited onto the show to talk about a case or project for which I was trying to get public attention, suddenly getting invited to be on Chicago Tonight (the generally excellent and meaty Chicago area news magazine and commentary show on PBS) wasn’t an opportunity I wanted to turn down, then or now. It was a chance for a discussion of the State's role in policing parenting decisions, albeit in a context where the parenting decisions in question would be all-but-impossible to defend if I were to try. Still, I gamely believed I should speak out in order to talk about what reasonable “home alone” policies ought to be. The made-for-Hollwood aspect of the story made it a pretty daunting challenge, though, not the best forum in which to argue for limitations on state authority to judge and punish parents. But if I had same invitation today and the facts were the same, I would make the same decision. Bad cases don't go away or get better by ignoring them.
It was just a few months before the Joseph Wallace case took over as front page news. The Schoo case helped to prime the public to take out its anger against bad parents in the state legislature. The Illinois foster care panic was about to start. So my decision to go on Chicago Tonight was probably a good one after all, because it helped set the stage for later work that proved necessary to protect Illinois law from even more sweeping changes. Within month of my appearance on Chicago Tonight, there were calls for legislative changes to eliminate the basic right of parents to have the State prove a case of unfitness based on the parent's actions.
There is a common saying among lawyers, “Hard cases make bad law.” Well, the Schoo “Home Alone II” case wasn’t exactly a hard one, truth be told. Leaving children ages 9 and 4 home while you go on vacation in Mexico isn’t recommended for anyone. It was very hard to defend the parents’ actions, especially without knowing more about them. So I didn’t try to justify the Schoo's decisions, for there was no meaningful way to assess why they made this collosal mistake (I wasn’t their counsel and I never met them). No one on the family rights side of the advocacy world (and there were very few of us back then) had enough information to make make much of a family rights argument on their behalf.
The case was ripe for making disasterous law. I was worried it would do exactly that--and to some extent, it did make the law worse. Arguing against per se criminal and civil penalties for letting kids be alone was the best argument I could muster at the time. I wish we came up with better, clearer guidelines; we've done a much better job since. But the nature of the case made it especially hard to make arguments for reasonable parents who would be trapped by the broad discretionary standards that the legislature would almost certainly adopt in the face of this one terrible case.
On Chicago Tonight, I was Cook County Public Guardian Patrick Murphy’s foil, put there to have some sort of debate about parenting and the State that I was likely to lose.
Since then, I’ve had a lot more opportunities to tell better stories than the Schoo Home Alone II story. So has our movement of family defenders. It’s important to tell the stories of responsible parents who made sound parenting judgments only to be mislabeled as child neglectors. It’s important to highlight stories of families who don’t have the resources to provide optimal child care, even if they wanted to. (The most heartbreaking of this stories is Rachel Aviv’s Profile of Niveen Ismael here https://www.newyorker.com/magazine/2013/12/02/where-is-your-mother).
I wasn’t looking to be interviewed 25 years ago about the Schoo Home Alone II case, or again 25 years later. But it remains important to tell the public about the complexities of legislating in the face of a bad case, and so I spoke to the press about the Schoo’s, even though I’d rather talk about the Meitivs.