Pierre Bourdieu, Habitus and the Dependency Case

    Among the legacies of the French sociologist Pierre Bourdieu was his concept of habitus, a term widely construed by Bourdieu but taking on dimensions similar to the societal infrastructure and superstructure that surrounds an individual historically which in large part responsible for the individuals attitudes, disposition and social destiny. Quoting Bourdieu's Invitation to a Reflexive Sociology, he states, " Habitus. . . is an open system of dispositions that is constantly subjected to experiences, and therefore constantly affected by them in a way that either reinforces or modifies its structures." He goes on to state that, while habitus is not eternal, ". . .there is a probability, inscribed in the social destiny associated with definite social conditions, that experiences will conform to habitus, because most people are statistically bound to encounter circumstances that tend to agree with those that originally fashioned their habitus."(Bourdieu, 133). Thus, an individual's social trajectory, statistically, is likely to be the one that is confirmed by the individual's habitus because the individual won't know any better and will be resigned to such a trajectory. In such circumstances, such a trajectory has become doxically ingrained and thus seems not only to be part of the nature of things but inevitable, the entire possibility of a different or better world not even being a possible subject for discourse.
    Of course, the world is full of exceptions, Bourdieu being one of the most notable, having ascended from a member of an outcast tribe situated in a rural French backwater to being a Professor at the College de France. However, possibility is not probability, and for every Bourdieu there are countless individuals who will never have the occasion to aspire to such greatness. If Bourdieu is correct, culture is structurally rigged in such a way as to gives rise to conditions surrounding the individual which in almost every case will lead to the individual sabotaging his own trajectory, largely without ever knowing he is doing so.
    The overwhelming number of child welfare cases that appear in North Carolina's juvenile courts involve individuals who lack social capital: they are often the poorest of society, they lack insight and training necessary to parent, and very often have taken on such a huge responsibility too many times. North Carolina, at least as contemplated by General Statute 7B, has mandated State intervention in the sacred sphere of the parent/child relationship only where a child is faced with a situation where the child has been abused, neglected or dependent. As the Supreme Court has stated in Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), ". . . absent a finding that parents are unfit or have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody and control of their children must prevail." That being said, many families do experience State intervention because they have neglected the welfare of their children. The law further requires that the State intervene in certain circumstances where a child has been adjudicated in juvenile court to help the parent strengthen the familial bond and otherwise correct the conditions that led to the intervention of the State. Many families, despite intensive intervention by the State, fail to make any change or even exhibit a positive response. Instead, they continue to coordinate with the inertia of their habitus, doing things as seem to them to be in the realm of the ordinary, the natural, whether that means continuing to be violently assaulted by an intimate partner, to abuse controlled substances, or to live in squalor. If Bourdieu is correct, these individuals are in all probability doomed to a particular historical trajectory, which in all likelihood was the same trajectory of their ancestors, from their parents to their grandparents and beyond. Bourdieu widely criticised the French Educational system for its perpetuation of a culture where societal elites prevailed despite allegedly democratic reforms aimed as moving the working class and petit bourgeoisie into the Academy. If Bourdieu is correct, North Carolina, and for that matter every State government, is doomed to experience the same failure experienced by the French Educational System. It may very well be the case that familial behaviour, inculcated for generations, has been so internalised that it is now a visceral response, being purely a bodily reflex, not subject to intellectual discourse which is the very remedy being suggested when the juvenile courts order parents to comply with substance abuse counselling, parenting classes, and in-home family preservation efforts.
   The high culture of North Carolina cannot speak the language of the low culture, let alone can it get that low culture to even want to hear and understand. So is the State to continue to perpetuate the illusion that it is helping when in reality it is doing nothing more than absurdly tilting at windmills? Perhaps the intent is enough, regardless of the lack of outcome. As in the case of Camus' hero Sisyphus, it matters not that the rock, so painfully pushed up the hill, nevertheless falls down once again, in a scenario which will be repeated ad infinitum.  Not the outcome which is absurd, but rather the process, the response to the absurd world, is instilled with meaning. If so, all the better. Governments are good at doing things that individuals lack the capacity to otherwise do. But let it do the deed honestly (perhaps inscribing it in the juvenile code), acknowledging to all the world that it will probably fail but despite all is going to try to uplift juvenile court families anyway.

The Brave New World: Post P.D.R. Legislation Creates a Dilemna for Parent's Attorneys

     The North Carolina Legislature's Session Law 2013-129 has put an end to the quandary courts were facing in having to determine whether a parent who suffered a disability required a guardian of assistance or a guardian of substitution. This quandary, of course was the result of the Court of Appeals decision in In re P.D.R.,713 S.E.2d 60; 2011 N.C. App. LEXIS 1054, review granted, 365 N.C. 342, 717 S.E.2d 369, reversed and remanded, 2012 N.C. LEXIS 269 (N.C., Apr. 13, 2012) where the Court of Appeals determined that trial judges must determine whether a guardian is of assistance, or, pursuant to N.C. Rule Civ. Pro. 17, one of substitution. However, such legislation, no doubt well intended by its sponsors, has lead to a pair of unfortunate consequences for parent's attorneys.
    As mentioned in an earlier post (In re P.D.R., infra), the assistance/substitution dichotomy was an important distinction even if one of the reasons for the Court of Appeals decision ( whether N.C. Gen. Stat 15A-1242 allows a parent to waive counsel when they have been appointed a guardian) has been overruled. If a guardian is one of substitution, then, pursuant to Rule 17, the parent's opinion is a nullity-it simply doesn't matter. What matters is the opinion of the appointed GAL, who, acting in the best interest of the parent, makes the decisions for that parent. A guardian of assistance, on the other hand, is ancillary to that of the parent who retains their ability to make decisions in a case, the GAL only being there to help the parent make those decisions.
   With legislative action, N.C. Gen. Stat. 7B-602 has been amended to require that the trial court, when confronted with parental disability, conduct a hearing on whether the parent is competent. If not, the court may (translated, should) appoint a guardian of substitution. Guardians of assistance are no longer permitted by statute.
    For the parent attorney, this creates a new world of problems, to wit: (1) if the parent is truly disabled and unable to assist in defence, then the solutionprovided by N.C. Gen. Stat. 7B-602 will effectively remove the parent's ability to participate in the defence, except derivatively through the GAL; and (2) a parent who receives a GAL is, at very least, incompetent, which very much plays well toward the position of the DSS which, in one form or another, has stated that the parent is disabled in some way in terms of parenting which underlies the child's status as abused, neglected or dependent. In large part, a competency hearing conducted pursuant to N.C. Gen. Stat. 7B-6023 makes the petitioners case before it is even heard.
   Whether to play the disability card or not is, of course, within the sound discretion of the trial attorney. However, these type of decisions have a way of coming back on the attorney who makes a decision, the case goes poorly and the child is adjudicated, and then the case, following disposition, goes up on appeal. No doubt one of the issues that will be raised by the eager and zealous IDS attorney will be the effective assistance of counsel, whether this sound discretion was indeed sound enough.