THE FIRST CHAPTER OF CHILDREN'S RIGHTS

In the quiet New York courtroom, the little girl began

to speak."My name is Mary Ellen McMormack. I don't know

how old I am...I have never had but one pair of shoes, but

can't recollect when that was. I have had no shoes or

stockings on this winter....I have never had on a particle

of flannel. My bed at night is only a piece of carpet,

stretched on the floor underneath a window, and I sleep in

my little undergarment, with a quilt over me. I am never

allowed to play with any children or have any company

whatever. Mamma has been in the habit of whipping and

beating me almost every day. She used to whip me with a

twisted whip, a raw hide. The whip always left black and

blue marks on my body. I have now on my head two black and

blue marks which were made by mamma with the whip, and a

cut on the left side of my forehead which was made by a

pair of scissors in mamma's hand. She struck me with the

scissors and cut me. I have no recollection of ever

having been kissed, and have never been kissed by mamma. I

have never been taken on my mamma's lap, or caressed or

petted. I never dared to speak to anybody, because if I did

I would get whipped....Whenever mamma went out I was locked

up in the bedroom....I have no recollection of ever being

in the street in my life."

At the beginning of 1874 there were no legal means in

the United States to save a child from abuse. Mary Ellen's

eloquent testimony changed that, changed our legal system's

view of the rights of the child.

Yet more than a century later the concerns that arose

from Mary Ellen's case are still being battled over in the

courts. The classic dilemmas of just how deeply into the

domestic realm the governmental arm can reach and what the

obligations of public government are to the private

individual take on particular urgency in considering child

abuse.

Early in 1989, inthe case of DeShaney v. Winnebago County, the Supreme Court declared that the government is not obligated to protect its citizens against harm inflicted by private individuals. DeShaney brought the case before the court in a suit against county social service agencies that had failed to intervene when her estranged husband abused their son, Joshua, who, as a result of his father's brutality, suffered permanent brain damage.The father was convicted,but his former wife believes that fault also lies with the agencies, whose failure to intercede violated her son's Fourteenth Amendment right not to be deprived of life or liberty without due prcess ofthe law. Chief Justice Willam H. Rehnquist wrote, that intervening officials are often charged with "improperly intruding into the parent-child relationship." Justice William J. Brennan, Jr., dissenting, wrote: "Inaction can be every bit as abusive of power as action, [and] oppression can result when a State undertakes a vital duty and then ignores it."

The difficulty in bringing Mary Ellen McCormack into the New York Supreme Court in 1874 grew from similar controversy over the role of government in family matters, and Mary Ellen's sad history is not so different from Joshua DeShaney's.

When Mary Ellen's mother, Frances Connor, immigrated to the United States from England in 1858, she took a job at the St. Nicholas Hotel in New York City as a laundress. There she met an Irishman named Thomas Wilson who worked in the hotel kitchen shucking oysters. They were married in April 1862, shortly after Wilson had been drafted into the 69th New York, a regiment in the famous Irish Brigade. Early in 1864 she gave birth to their daughter, whom she named Mary after her mother and Ellen after her sister.

The birth of her daughter seems to have heralded the beginning of Frances Wilson's own decline.Her husband was killed that same year in the brutal fighting at Cold Harbor, Virginia and with a diminished income she found it necessary to look for a job. In May 1864, unable to pay someone to watch the baby while she was at work, she gave Mary Ellen over to the care ofa woman named MaryScore for two dollars aweek, thewhole of her widow's pension.Child farming was a common practice at that time, and many women made a living taking in unwanted children just as others took in laundry. Score lived in a tenement in the infamous warrens of Mulberry Bend, where thousands of immigrants crowded into small, airless rooms, and it is likely that providing foster care was her only means of income.

Finally Frances Wilson became unable to pay for the upkeep of her child; three weeks after the payments ceased, Score turned Mary Ellen over to the Department of Charities.The little girl-whose mother was never to seeher again-was sent to Blackwells Island in July1865. Her third home was certainly no more pleasant than Mulberry Bend. Mary Ellen was among a group of sick and hungry foundlings; fully two-thirds of them would die before reaching maturity.

The same slum-bred diseases that ravaged the children on Blackwells Island had also claimed all three children of a couple named Thomas and Mary McCormack. So when Thomas frequently bragged of the three children he had fathered by another woman, his wife was more receptive to the idea of adopting them than she might otherwise have been. Those children, he told her,were still alive, though their mother had turned them over to the care of the city.

On January 2, 1866, the McCormacks went to the Department of Charities to reclaim one of the children Thomas's mistress had abandoned. The child they chose as their own was Mary Ellen Wilson. Becauses the McCormacks were not asked to provide any proof of relation to the child and gave only the reference of their family doctor, there is no evidence that Thomas was in any way related to the child he brought home that day. More than a month later an indenture was filed for Mary Ellen in which the McCormacks promised to report on her condition each year. There were no other requirements.

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