Deirdre Smith's scholarship has focused most recently on minor guardianship, child protection, kinship care, and legal history. She has also written about psychiatric evidence, disability rights, and related topics. Professor Smith serves as consultant to the Maine Family Law Advisory Commission on minor guardianship and adoption laws. She is a member of the Professional Ethics Commission of the Maine Board of Overseers of the Bar and a former Chair of the Maine Supreme Judicial Court's Advisory Committee on the Rules of Evidence. She also works on reform initiatives to improve access to justice for low-income Maine residents and Maine's court system for family matters. She is the Director of the University of Maine School of Law's Cumberland Legal Aid Clinic, and she teaches General Practice Clinic and Evidence. A former law clerk for Chief Judge Gene Carter of the United States District Court for the District of Maine, Professor Smith practiced for several years with the Portland law firm of Drummond Woodsum & MacMahon.
This Article examines the sources of the contemporary problems associated with the adjudication o... more This Article examines the sources of the contemporary problems associated with the adjudication of parental rights matters in Maine’s probate courts and identifies specific reforms to address both the structural and substantive law problems. The Article first reviews the development of Maine’s probate courts and their jurisdiction over parental rights matters. It traces the expansion of jurisdiction over children and families from a limited role incidental to the administration of a decedent’s estate to the current scope: a range of matters that may result in the limitation, suspension, or termination of the rights of living parents. Maine probate courts now adjudicate questions implicating parental rights in a wide range of scenarios. However, the basic structure of Maine’s probate courts has remained unchanged since 1855. Maine law assigns exclusive jurisdiction of these often complex and contentious matters to a non-centralized group of county-based courts, each of which has limited resources and a single, part-time elected judge who usually has a busy law practice as his or her primary job.
The Article provides a close examination of the central issues involved in the parental rights matters currently adjudicated in the probate courts under the Maine Probate Code. It analyzes the challenges presented by the probate courts’ exclusive jurisdiction of these matters, including the incidence of conflicts and confusion when the District Court has addressed a parental rights issue involving a child who is also the focus of a probate court proceeding, as well as the limitations presented by the probate courts’ structure and operation. Finally, the Article discusses potential reforms aimed at improving the adjudication of parental rights matters under the MPC, including eliminating the “split jurisdiction” between probate and district courts, structural changes to probate courts to ensure fairness and due process for all participants, and a substantive reforms to the MPC provisions concerning parental rights so that the law will better reflect the contexts in which these cases arise today and address the needs of the families involved in these cases. Combined, these proposed reforms would mitigate the acute problems described in the Article to better serve both the courts that must adjudicate these difficult cases and the families at the center of them.
In the 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that presented a ne... more In the 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that presented a new model of civil commitment. The targets of these new commitment laws were dubbed “Sexually Violent Predators,” and the Court upheld this form of indefinite detention on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty is appropriate and legitimate, with the aid of testimony from mental health professionals.
This Article evaluates the extent to which those assumptions were correct and concludes that they were seriously flawed and, therefore, the due process rationale used to uphold the SVP laws is invalid. The category of the “Sexually Violent Predator” is a political and moral construct, not a medical classification. The implementation of the laws has resulted in dangerous distortions of both psychiatric expertise and important legal principles, and such distortions reveal an urgent need to re-examine the Supreme Court’s core rationale in upholding the SVP commitment experiment.
Due to the opioid use epidemic and an overwhelmed public child protection system, minor guardians... more Due to the opioid use epidemic and an overwhelmed public child protection system, minor guardianship is an increasingly important tool for relative caregivers seeking to obtain legal authority regarding the children who come into their care because of a parent’s crisis. Yet minor guardianship originated in colonial law for an entirely different purpose: to protect legal orphans who had inherited property. Today’s guardianship laws are still based on this “orphan model” which does not fit today’s reality. This Article is the first to analyze how these outdated guardianship laws are being used as a form of “private child protection” and to propose changes aimed to serve the needs and interests of families in crisis. Despite its central role in helping families address the care of children today, the use of minor guardianship for child protection has received remarkably little scholarly examination. This Article aims to fill that gap in three ways. First, it traces the transformation of minor guardianship from a probate tool used to protect orphans’ property interests to its contemporary use as a way to keep children out of foster care and instead address their care within the family. Second, the Article analyzes the implications for children, parents, and relative caregivers of guardianship’s use for private child protection. While families avoid the loss of control and other common problems that accompany involvement in the public child welfare system, family members cannot take advantage of the services and supports that the system can provide. Third, I outline the specific measures that states can and should enact to unlink minor guardianship laws from the “orphan model” and rework them to serve the interests of families in crisis and to reflect the broader policy goals of child protection, including preserving kinship ties.
This Article examines the sources of the contemporary problems associated with the adjudication o... more This Article examines the sources of the contemporary problems associated with the adjudication of parental rights matters in Maine’s probate courts and identifies specific reforms to address both the structural and substantive law problems. The Article first reviews the development of Maine’s probate courts and their jurisdiction over parental rights matters. It traces the expansion of jurisdiction over children and families from a limited role incidental to the administration of a decedent’s estate to the current scope: a range of matters that may result in the limitation, suspension, or termination of the rights of living parents. Maine probate courts now adjudicate questions implicating parental rights in a wide range of scenarios. However, the basic structure of Maine’s probate courts has remained unchanged since 1855. Maine law assigns exclusive jurisdiction of these often complex and contentious matters to a non-centralized group of county-based courts, each of which has limited resources and a single, part-time elected judge who usually has a busy law practice as his or her primary job.
The Article provides a close examination of the central issues involved in the parental rights matters currently adjudicated in the probate courts under the Maine Probate Code. It analyzes the challenges presented by the probate courts’ exclusive jurisdiction of these matters, including the incidence of conflicts and confusion when the District Court has addressed a parental rights issue involving a child who is also the focus of a probate court proceeding, as well as the limitations presented by the probate courts’ structure and operation. Finally, the Article discusses potential reforms aimed at improving the adjudication of parental rights matters under the MPC, including eliminating the “split jurisdiction” between probate and district courts, structural changes to probate courts to ensure fairness and due process for all participants, and a substantive reforms to the MPC provisions concerning parental rights so that the law will better reflect the contexts in which these cases arise today and address the needs of the families involved in these cases. Combined, these proposed reforms would mitigate the acute problems described in the Article to better serve both the courts that must adjudicate these difficult cases and the families at the center of them.
In the 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that presented a ne... more In the 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that presented a new model of civil commitment. The targets of these new commitment laws were dubbed “Sexually Violent Predators,” and the Court upheld this form of indefinite detention on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty is appropriate and legitimate, with the aid of testimony from mental health professionals.
This Article evaluates the extent to which those assumptions were correct and concludes that they were seriously flawed and, therefore, the due process rationale used to uphold the SVP laws is invalid. The category of the “Sexually Violent Predator” is a political and moral construct, not a medical classification. The implementation of the laws has resulted in dangerous distortions of both psychiatric expertise and important legal principles, and such distortions reveal an urgent need to re-examine the Supreme Court’s core rationale in upholding the SVP commitment experiment.
Due to the opioid use epidemic and an overwhelmed public child protection system, minor guardians... more Due to the opioid use epidemic and an overwhelmed public child protection system, minor guardianship is an increasingly important tool for relative caregivers seeking to obtain legal authority regarding the children who come into their care because of a parent’s crisis. Yet minor guardianship originated in colonial law for an entirely different purpose: to protect legal orphans who had inherited property. Today’s guardianship laws are still based on this “orphan model” which does not fit today’s reality. This Article is the first to analyze how these outdated guardianship laws are being used as a form of “private child protection” and to propose changes aimed to serve the needs and interests of families in crisis. Despite its central role in helping families address the care of children today, the use of minor guardianship for child protection has received remarkably little scholarly examination. This Article aims to fill that gap in three ways. First, it traces the transformation of minor guardianship from a probate tool used to protect orphans’ property interests to its contemporary use as a way to keep children out of foster care and instead address their care within the family. Second, the Article analyzes the implications for children, parents, and relative caregivers of guardianship’s use for private child protection. While families avoid the loss of control and other common problems that accompany involvement in the public child welfare system, family members cannot take advantage of the services and supports that the system can provide. Third, I outline the specific measures that states can and should enact to unlink minor guardianship laws from the “orphan model” and rework them to serve the interests of families in crisis and to reflect the broader policy goals of child protection, including preserving kinship ties.
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Papers by Deirdre Smith
The Article provides a close examination of the central issues involved in the parental rights matters currently adjudicated in the probate courts under the Maine Probate Code. It analyzes the challenges presented by the probate courts’ exclusive jurisdiction of these matters, including the incidence of conflicts and confusion when the District Court has addressed a parental rights issue involving a child who is also the focus of a probate court proceeding, as well as the limitations presented by the probate courts’ structure and operation. Finally, the Article discusses potential reforms aimed at improving the adjudication of parental rights matters under the MPC, including eliminating the “split jurisdiction” between probate and district courts, structural changes to probate courts to ensure fairness and due process for all participants, and a substantive reforms to the MPC provisions concerning parental rights so that the law will better reflect the contexts in which these cases arise today and address the needs of the families involved in these cases. Combined, these proposed reforms would mitigate the acute problems described in the Article to better serve both the courts that must adjudicate these difficult cases and the families at the center of them.
This Article evaluates the extent to which those assumptions were correct and concludes that they were seriously flawed and, therefore, the due process rationale used to uphold the SVP laws is invalid. The category of the “Sexually Violent Predator” is a political and moral construct, not a medical classification. The implementation of the laws has resulted in dangerous distortions of both psychiatric expertise and important legal principles, and such distortions reveal an urgent need to re-examine the Supreme Court’s core rationale in upholding the SVP commitment experiment.
Drafts by Deirdre Smith
Despite its central role in helping families address the care of children today, the use of minor guardianship for child protection has received remarkably little scholarly examination. This Article aims to fill that gap in three ways. First, it traces the transformation of minor guardianship from a probate tool used to protect orphans’ property interests to its contemporary use as a way to keep children out of foster care and instead address their care within the family. Second, the Article analyzes the implications for children, parents, and relative caregivers of guardianship’s use for private child protection. While families avoid the loss of control and other common problems that accompany involvement in the public child welfare system, family members cannot take advantage of the services and supports that the system can provide. Third, I outline the specific measures that states can and should enact to unlink minor guardianship laws from the “orphan model” and rework them to serve the interests of families in crisis and to reflect the broader policy goals of child protection, including preserving kinship ties.
The Article provides a close examination of the central issues involved in the parental rights matters currently adjudicated in the probate courts under the Maine Probate Code. It analyzes the challenges presented by the probate courts’ exclusive jurisdiction of these matters, including the incidence of conflicts and confusion when the District Court has addressed a parental rights issue involving a child who is also the focus of a probate court proceeding, as well as the limitations presented by the probate courts’ structure and operation. Finally, the Article discusses potential reforms aimed at improving the adjudication of parental rights matters under the MPC, including eliminating the “split jurisdiction” between probate and district courts, structural changes to probate courts to ensure fairness and due process for all participants, and a substantive reforms to the MPC provisions concerning parental rights so that the law will better reflect the contexts in which these cases arise today and address the needs of the families involved in these cases. Combined, these proposed reforms would mitigate the acute problems described in the Article to better serve both the courts that must adjudicate these difficult cases and the families at the center of them.
This Article evaluates the extent to which those assumptions were correct and concludes that they were seriously flawed and, therefore, the due process rationale used to uphold the SVP laws is invalid. The category of the “Sexually Violent Predator” is a political and moral construct, not a medical classification. The implementation of the laws has resulted in dangerous distortions of both psychiatric expertise and important legal principles, and such distortions reveal an urgent need to re-examine the Supreme Court’s core rationale in upholding the SVP commitment experiment.
Despite its central role in helping families address the care of children today, the use of minor guardianship for child protection has received remarkably little scholarly examination. This Article aims to fill that gap in three ways. First, it traces the transformation of minor guardianship from a probate tool used to protect orphans’ property interests to its contemporary use as a way to keep children out of foster care and instead address their care within the family. Second, the Article analyzes the implications for children, parents, and relative caregivers of guardianship’s use for private child protection. While families avoid the loss of control and other common problems that accompany involvement in the public child welfare system, family members cannot take advantage of the services and supports that the system can provide. Third, I outline the specific measures that states can and should enact to unlink minor guardianship laws from the “orphan model” and rework them to serve the interests of families in crisis and to reflect the broader policy goals of child protection, including preserving kinship ties.