Currently before the New York State Committee on Children and Families is a Bill that may provide some measure of relief to families who may find themselves facing accusations of Munchausen’s Syndrome by Proxy, or its latest varient, Medical Child Abuse.
Bill A3365-2013 bears this concise description:
The proposed Bill, which would modify section 417 of the State’s Social Services Law, leaves little room for doubt concerning the wrongs that it attempts to set right. Part of the Bill’s text explains:
After 30 years of clinical and legal experience, the definition of MSBP remains controversial. As a result, mothers who present the problem of their children in ways perceived as unusual or problematic have become entangled in legal battles that should have been resolved clinically. Loren Pankratz, PhD, an expert on the diagnosis of MSBP published an article in the American Academy of psychiatric Law provid-ing that the medical literature on MSBP often mentions false accusations or the possibility of false accusations, but does not convey the prevalence of these misunderstandings or the devastating consequences of a wrong diagnosis”. That in case after case “experts disagree about how to define and confirm MSBP.” Consequently, even though there is very little consensus on the diagnosis of MSBP, children are removed from their family homes based upon such diagnosis prior to a formal hearing taking place. This leads to children being separated from their mothers and fathers, in some cases for-long periods of time, which, may be very harmful to the child being removed. This bill would require a formal hearing prior to removal in the case of an allegation of MSBP.
Assembly member Michelle R. Titus – sponsor of the Bill – is the Democratic Representative for Assembly District 31. Prior to her election, Titus served as the Chief of Staff to recently defeated Senator Ada Smith, as well as the Executive Director for the New York State Black and Puerto Rican Legislative Caucus.
Titus was first elected to the State Assembly in a special election held on April 16, 2002. She won the general election that November with 86 percent of the vote, and she ran uncontested in the 2008 and 2010 general elections.
The Bill’s co-sponsors include N. Nick Perry (D – District 58) and William Scarborough (D – District 29). All three representatives serve constituents in the general vicinity served by the former Schneider Children’s Hospital.1
New York State had played host to some high-profile medical proponents of the alleged disorder. A brief history may be in order.
A 1992 New York Times article entitled “When a Mother Is Blamed for Her Child’s Unusual Illness” recounts a story involving a medical diagnosis of Munchausen Syndrome by Proxy at the Schneider Children’s Hospital at Long Island Jewish Medical Center in New Hyde Park.
The article explains:
To Ms. Storck and her supporters, including parents of other medically fragile children, it is all a bizarre and terrible mistake, a witch hunt in which doctors, armed with circumstantial suppositions rather than hard evidence, blame mothers for the unusual medical problems of their children.
“I worked my life around Aaron and his illness,” said Ms. Storck, a 40-year-old single mother with four children. “It took time learning to accept and live with that monitor. Now they are saying I caused everything. This has been a real horror.”
Maggie Webber, a parent of a severely retarded daughter, and a member of a group of parents of chronically ill children, said that the case was terribly frightening to other parents of troubled children because “we all are so vulnerable.”
“Suddenly when you have a sick or disabled child,” she said, “you are under a microscope and everyone starts to judge you as a parent.”
In 1993, the Times ran a story, “Suffolk Mother’s Illness Imperils Son, Judge Rules,” explained that, “The judge, David Freundlich, found that Ms. Storck suffers from a rarely diagnosed psychological illness, Munchausen Syndrome by Proxy, in which parents, mostly mothers, fabricate or induce illnesses in their children, not necessarily to harm them, but rather to get the attention the parents crave from doctors. The case is one of the first to put a national spotlight on the syndrome.” Meanwhile, Stork’s son, Aaron, maintained his mother’s innocence for years to come.
At that time, the public was prone toward believing such accusations. After all, it had uncritically accepted the day-care craze stirred up by the American Professional Society on the Abuse of Children. It had “believed the children” of McMartin, who recounted incredible tales of ritualistic abuse, and of tunnels that were never found. It believed that the Amirault family of Massachusetts was guilty of heinous offenses against children.
Eventually cooler heads prevailed. The ritual abuse and the day-care abuse crazes were exposed as shams. Over time, even Reader’s Digest – hardy a radical news source – investigated the last of the ritual abuse witch hunts in Wenatchee. Dorothy Rabinowitz of the Wall Street Journal wrote a number of critical essays on the Amirault case, in which the accused still remained in prison. There was “A Darkness in Massachusetts,” she explained. That darkness was one of judicial “finality” prevailing over injustice.
As recently as January of this year, North Carolina’s News & Observer called on the Governor to declare the factual innocence of the people accused in the notorious Little Rascals Day Care case, only to have its pleas fall on deaf ears. Clearly the ritual abuse rage was out, and Munchausen Syndrome by Proxy was in. Any hip child abuse professional would either change with the times, or be left behind as the times changed around her. Chanting the mantra of ritual abuse – even at trade conferences – came to be seen as tantamount to dancing the Twist at the local disco.
So, what happened in the Queens borough of New York City? In short, people woke up to what was happening at Schneider Children’s Hospital, and, over time, an increasing number of parents – many of them minorities – found themselves taking longer cab rides with kids with runny noses to avoid the hospital entirely, as it had developed a nasty reputation as an accusation mill for the City’s dysfunctional child protection agency.
A brief legal review is in order. In Matter of Anesia E. 2004 NY Slip Op 50736(U) (July 9, 2004) Family Court, Kings County:
Dr. Esernio-Jenssen opined, with a reasonable degree of medical certainty based upon her education, training, and experience, that (1) Anesia is a victim of Munchausen’s syndrome by proxy (“MSP”), now called “medical child abuse” in the pediatric community; and (2) if left in her mother’s care, Anesia would be at substantial risk for great physical harm. She based her opinion upon various factors and considerations. She concluded that Anesia does not actually suffer from seizures. When doctors at Schneider Children’s Hospital discontinued Anesia’s high doses of powerful anticonvulsant medications during a three day inpatient stay, medical personnel witnessed no seizures and the video EEG documented no seizure activity. CAT scans and all other tests were normal. The referring pediatric neurologist as well as Schneider Children’s Hospital’s medical staff found Anesia to be healthy. However, during this hospital stay, the mother verbally reported and even pushed the video EEG button to record alleged seizures.
Further, when Dr. Esernio-Jenssen explained to Anesia’s mother that Anesia was perfectly healthy and normal, she became very angry and sought to take her child to another hospital. Hospital personnel had to place a hold on Anesia, during which time ACS removed her from her mother and filed the instant petition. Anesia was discharged as a healthy toddler to her paternal grandmother, where she has resided since her removal from her mother, with no seizures.
So far, sounds good. No seizures. Reliable diagnosis. Or – maybe not.
THE BIGGER PICTURE
By some accounts, Dr. Esernio-Jenssen – who, as we shall see, has a well-documented history of “finding” shaken baby syndrome in the face of conflicting opinions from her own colleagues in the medical profession – branched out into the wild wilderness of Munchausen Syndrome by Proxy. It seems also, that by virtue of her position at Schneider Children’s Hospital, she’d managed to overstep some of her professional boundaries.
In V.S. Ex Rel. T.S. v. Muhammad, 581 F.Supp.2d 365 (2008), two cases were consolidated for purposes of an appeal, each involving Dr. Esernio-Jenssen – a pediatrician with Schneider Children’s Hospital who made the initial child abuse diagnoses in both cases. Esernio-Jenssen was alleged to be under contract with New York City’s Administration for Children’s Service “as a consultant who assists and advises the agency in investigating and prosecuting cases of child abuse and neglect.”
In this case, the District Court judge took the unusual step of taking judicial notice of two related prior proceedings, which are well worth citing at some length:
the court takes judicial notice of two recent decisions from other judges in this district that document instances of misdiagnosis by this doctor. In the first case, Dr. Esernio-Jenssen, identified as a pediatric specialist in the Child Protection Consulting Team at the SCH, examined a six-month old infant who was found not breathing by his parents and later died at the hospital in 2002. In Cornejo, she determined that the infant’s injuries were inflicted by [shaken baby syndrome] and did not occur naturally. Dr. Esernio-Jenssen deemed incredible, the father’s explanation that he had “smacked [the infant's] back” to burp him, and conveyed to an ACS investigator her suspicion that the father had violently shaken the baby. Her diagnosis prompted the removal of the infant’s 18-month old brother to foster care. Despite a preliminary autopsy showing the infant’s rib injuries to be the result of a congenital bone malformation, not fractures from shaking, she refused to alter her shaken baby syndrome diagnosis in her testimony before a Family Court judge. A final autopsy report concluded that the infant’s death was caused not by the shaken baby syndrome but a rare and natural heart defect. Eventually, ACS reached the same conclusion and withdrew the child abuse petitions against the parents in the Family Court. The infant’s brother was separated from his mother for about three months.
In the second case, Dr. Esernio-Jenssen determined in November 2004 that a nine-month infant’s minor wrist fracture was caused by the violent shaking of his arm by one or both of his parents. She reported her suspicions to the Central Register, refused to discharge the child to her parents, cancelled an MRI examination that had been scheduled to test for bone disease, and ordered a skeletal survey to detect for signs of child abuse instead. A radiologist at SCH who reviewed the X-ray refused to characterize the fracture as the result of abuse, and the initial ACS investigation found the injury was accidental. A second ACS investigation, supported by the diagnosis of Dr. Esernio-Jenssen, led to a child abuse petition against the parents in Family Court, which removed the infant and his two siblings to foster care. Ten months later, ACS withdrew the petition against the parents. The parents were separated from their children for more than eight months.2
ODD AND DISTASTEFUL TESTIMONY
The ruling continued on to note what may perhaps be generalized at its best as unprofessional, and at its worst as racially biased testimony in yet another case. The ruling explains:
Plaintiffs’ counsel, in opposing the V.S. City defendants’ motion for summary judgment, referenced a Family Court decision in which the judge questioned Dr. Esernio-Jenssen’s methodology and criticized her unprofessional courtroom demeanor. In that case, an infant taken to the emergency room by her parents on February 19, 2004, was found to have a skull fracture. The parents explained that the infant had been dropped accidentally by their fifteen-year old daughter in the presence of their other children. The other children confirmed this account, but Dr. Esernio-Jenssen was skeptical. She interpreted the CT scan as showing multiple fractures that amounted to evidence of a pattern of child abuse. Another doctor, however, determined that the other suspected fractures were actually a form of a developmental anomaly common among Latin American infants. The parents told Dr. Esernio-Jenssen that a previous ACS investigation of child abuse in their family proved unfounded and that the father used to drink before ceasing the habit when he converted to evangelical Christianity. Nonetheless, Dr. Esernio-Jenssen believed that the father’s alcoholism combined with what she speculated as “economic stressors” on the immigrant family led to prior abuse of the infant. Her belief prompted ACS to gain protective custody over the child. The Family Court found the parents to be very credible and seriously questioned Dr. Esernio-Jenssen’s methodology, including her failure to consider contrary objective medical findings and her focus on the family’s economic and immigrant status. The court found Dr. Esernio-Jenssen’s emphasis on “ethnic and religious issues odd and even distasteful.” She gave the court the impression that once she “had formed an intuitive judgment,” she “would make almost any argument to back it up.” The court found it “odd that Dr. Jenssen so rigidly rejected any alternative to her favored scenario (of child abuse) despite advice given from her own child abuse team.” The Family Court was also disturbed by her combative courtroom presence, contempt for the family’s attorney and “overly dramatic hand gestures.” The ACS petition against the parents in that case was dismissed.
In denying immunity based on “good faith” as a mandated reporter, the Court held that:
plaintiffs also allege that the doctor made the allegedly false diagnosis to “advance her personal agenda.” It is not clear what kind of ulterior motive she had, but this allegation when viewed in the light most favorable to the nonmoving party and combined with other instances of misdiagnosis by Dr. Esernio-Jenssen, creates an inference of plausible bad faith that would preclude immunity. Accordingly, the court finds that both complaints have made a sufficiently plausible showing of bad faith on the part of Dr. Esernio-Jenssen to overcome the good faith presumption accorded to the medical defendants by statute. Their invocation of state law immunity fails.
ACS CUSTOM OF QUESTIONABLE TESTIMONY
The complaint also charged that Social Services Commissioner John Mattingly directed his child protection agency in such a manner as to have allowed a “custom” of relying on questionable medical testimony to have developed. As the Court explained it:
In this case, the allegations in the complaint and other cases of which the court has taken judicial notice in this opinion make it plausible to believe that ACS followed a custom of relying on the child abuse diagnoses by Dr. Esernio-Jenssen, when such reliance may have been unwarranted and may have contributed to the violations of plaintiffs’ constitutional rights in this case and others. Furthermore, it is plausible that Commissioner Mattingly may have been or should have been aware of this custom, given the apparent frequency with which the agency has relied on Dr. Esernio-Jenssen’s opinions, both prior to the initiation of and during Family Court proceedings, and the severity of the consequences that has resulted from such reliance. Therefore, the court declines to dismiss the claims against Commissioner Mattingly at this junction of the litigation.
The cases wound there way to the Court of Appeals, which most unfortunately ruled in V.S.” v. Muhammad that while the doctor in this case allegedly had “repeatedly misdiagnosed child injuries as evidence of child abuse,” the Court of Appeals did not find this a sufficient reason to reject immunity, as:
She based her diagnosis of T.S. on determinations made by another doctor, Dr. Sylvia Kodsi, of retinal hemorrhages, a common indicator of shaken baby syndrome, and her opinion was shared by another well qualified physician, Dr. Shakin. Even if the ACS personnel here involved had been aware of Dr. Esernio-Jenssen’s alleged “reputation” for overdiagnosing child abuse, it still would not have been unreasonable for them to rely on Dr. Esernio-Jenssen’s diagnosis of T.S. in these circumstances.
In December 2008, the law firm of Lansner & Kubitschek announced that it had landed on the front page of the New York Law Journal – rather a prestigious honor. The firm’s writeup explained:
On Wednesday, October 8, 2008, the New York Law Journal ran a front-page story about two of our civil rights cases, V.S. v. Muhammad and Denes Q. v. Caesar. Brooklyn Federal Court Judge Dora L. Irizarry issued a decision covering both cases, which allowed parents and children to sue the City of New York and its child welfare caseworkers, the Long Island Jewish Hospital, and one of its doctors, Debra Esernio-Jenssen, M.D. for illegally separating the parents and their children, and for imprisonment of the children, medical malpractice, malicious prosecution, interference with parental custody of children, and violations of the civil rights of the parents and children. In the V.S. case, the City of New York, based upon Dr. Jenssen’s misdiagnosis of child abuse, separated a two-month-old baby from his mother for more than a year. In the Denes Q. case, the City of New York, again based upon Dr. Jenssen’s misdiagnosis, separated another two-month-old baby from her parents for more than two months.
The announcement continues on to explain: “The Law Journal also mentioned that, in July, 2008, Lansner & Kubitschek had prevailed in a third case, Estiverne v. Esernio-Jenssen, in which Brooklyn Federal Court Judge Nina Gershon allowed a third family to sue the same Dr. Esernio-Jenssen for making a false diagnosis and false accusations of child abuse, which led to the removal of three young children from their parents, and to false accusations of child abuse against the parents, accusations that threatened to torpedo the mother’s nursing career.”3
What happens when you find yourself exposed for generating false allegations, conducting many an improper diagnosis; and developing a reputation even among Family Court judges in New York City as a professional child abuse validator?
You pack up your bags and move to another state where the grass not only grows greener, but where you are welcomed by your fellow professionals with opened arms.
Esernio-Jenssen moved to Florida, and is currently employed by the University of Florida, Division of General Pediatrics, Department of Pediatrics in the College of Medicine. Her biography reads, in part:
Dr. Debra Esernio-Jenssen brings more than 25 years of experience to the clinical services she provides to children in north central Florida, with expertise in the field of child protective services. She is Medical Director of the Gainesville Child Protection Team. She is board certified in both general pediatrics and child abuse pediatrics, and is a member of numerous professional societies, including the Alachua Medical Society, the American Professional Society on the Abuse of Children (APSAC) and its Florida chapter, the Ray Helfer Society, and the Ambulatory Pediatric Association among others
There is no mention of her tenure in New York City to be found in her biography.
Apparently she likes to travel. Driscoll Children’s Hospital presented its Child Abuse Summit 2014, held on April 17-18, at the Omni Bayfront Hotel in Corpus Christi, Texas. Among the presentations set be held was “Medical Child Abuse,” by Debra Esernio-Jenssen, MD.
“Driscoll Children’s Hospital is accredited by the Texas Medical Association to provide continuing medical education for physicians,” the promotional brochure says. However, nurses, CPS social workers, law enforcement personnel, attorneys, and judges were also welcomed to attend the event.
1. Schneider Children’s Hospital was renamed the Steven and Alexandra Cohen Children’s Medical Center of New York in 2010. See associated press release, “North Shore-LIJ Renames Children’s Hospital in Honor of Steven and Alexandra Cohen.”
2. V.S. Ex Rel. T.S. v. Muhammad, 581 F.Supp.2d 365 (2008). For sake of clarity, internal citations have in some instances herein been removed from the quoted text. See also Estiverne V. Esernio-Jenssen, 833 F.Supp.2d 356 (2011) for additional information regarding this particular string of cases.
Related: Stefanak et al v. Muhammad et al, Filing 122, order denying the plaintiffs’ motion to compel discovery.
Child Abuse Summit 2014 conference brochure
Summary: The recent ruling by judge Joseph Johnston in the Pelletier case has generated a great deal of controversy. I begin with a brief recap of the more recent developments in the case, and continue on to explore appeals arising from judge Johnston’s juvenile court proceedings. A number of judge Johnston’s rulings contain troubling irregularities that are nevertheless given great deference by the appellate courts.
The Pelletier case has generated so much controversy that Massachusetts Representatives Lombardo and Lyons have tried on more than one occasion to have a Resolution demanding the teen’s release from state custody put before the Massachusetts legislature. According to their press release, the Resolution “gathered support from Representatives on both sides of the aisle.”
On March 24, 2014, minority Representatives sent a letter to Governor Deval Patrick, imploring him to take direct action by consulting with Governor Malloy of Connecticut to return Justina to her home state.
“The Commonwealth of Massachusetts can no longer be viewed as obstructionists in a family’s desire to return their daughter home to Connecticut,” the letter says. As of today, there has been no reply from either Governor.
Most recently, prominent civil rights attorney Alan Dershowitz extended an offer of pro bono legal aid, an offer that the Pelletier family graciously accepted.
In the wake of the ruling in Justina Pelletier’s case, many question have arisen with regard to judge Joseph F. Johnston’s controversial ruling. The judge determined “placement of Justina in the conditional custody of her parents is not in her best interests at this time.” Judge Johnston ordered Justina into DCF custody, “subject to the parties’ right to review and redetermination” six months from adjudication.
Psychological and clinical evaluations of Justina’s parents, Lou and Linda Pelletier, are “necessary.” However, judge Johnston declined to order the evaluations to be conducted by the Boston Juvenile Court Clinic.
“These are evaluations, along with other services, that must be coordinated by the CT DCF,” the order states.
POSSIBLE FEDERAL ACTION
Now, Rep. Steve Stockman, (R-Texas), who is considering introducing a bill in the US Congress, is joining with Liberty Council, the Citizens Commission on Human Rights, and Massachusetts Republican state Rep. Marc Lombardo to call for the release of Justina Pelletier from Massachusetts state custody.
“I find certain state policies involving individual and personal medical decisions to be disconcerting,” Stockman said. “It is my firm belief that we should not provide federal dollars, through NIH grants, to states that maintain policies that conflict with personal liberty.”
Stockman said Thursday that taxpayer dollars “should not be spent on research performed upon people without their consent.”
“Stockman’s legislative staff worked all day Thursday to meet Friday’s deadline to submit a written request for the proposed legislation to the House Appropriations Committee,” WND reported.
THE INTERNET ERASER
Media accounts of the courtroom over which Johnston typically presides have themselves been contradictory, with some saying he is a Suffolk judge, others saying he presides over Essex.1
As was reported in Bostinno, attorney Beth Maloney, who handled the similar case of Elizabeth Wray, was subjected to a “gag order” that compelled her to erase everything that she’d posted online about the Wray case.
Complicating matters is that the Internet eraser has been working overtime, as a visit to Essex Juvenile Court – Lynn Session results in a message that reads: “The page you were trying to view is no longer available at that web address on the Massachusetts Court System website or has been removed.”
A similar problem is to be found with judge Johnston’s biography, as a visit to that location brings the same result: “The page you were trying to view is no longer available at that web address on the Massachusetts Court System website or has been removed.”
Searches using the web site’s search box, as well as Google searches, proved fruitless. The Internet Archive’s Wayback Machine, however, does hold a capture of judge Johnston’s biography as of June 27, 2013, however it is not too revealing.
My analysis of reported appeals reveals that judge Johnston traveled back and forth between Essex – where he appeared to be primarily assigned – and Suffolk, which is where he presided over the Pelletier case. The question of whether Johnston was hand-selected for the case, or whether it was by pure happenstance that the Pelletier family were summoned into a court in which Johnston just happened to be presiding is anyone’s best guess, at this point.
In any event, my research has landed a number of appeals from judge Johnston’s juvenile court cases, and they are in many respects illuminating.
In Adoption Of Cecily, (AC 12-P-926) 83 Mass. App. Ct. 719 (2013), the Department of Children and Families became involved in the case “when a 51-A report was filed against the mother and father for neglect of the child on the day she was admitted to the hospital.”
The ruling explains that, “The next day, the department was granted emergency custody of the child.” A second 51-A report, this time alleging that the child had been physically abused, was filed shortly thereafter. It was after the filing of the second 51-A report that the department began an actual investigation, during which the department claimed to have found “the allegations of physical abuse and neglect of the child to be supported.”
The matter is perhaps best explained by examining the criminal charges that were filed against the parents, and their individual outcomes.
At the time of trial, the criminal cases against both parents were pending. The mother was charged with assault and battery on a child with substantial injury and reckless endangerment of a child. At the close of the Commonwealth’s case, the mother moved for a required finding of not guilty on all charges and the judge granted her motion. The father was charged with two counts of assault and battery on a child with substantial injury and was later found guilty on the first count and not guilty on the second. The father was sentenced to nine to twelve years at the Massachusetts Correctional Institution at Cedar Junction.
It certainly seems clear enough from that determination. The dad hurt the child, was subsequently found guilty, and he went to jail to pay for his crime.
But that still still left mom entangled in the juvenile dependency system. And, to get your child out of there, you have to jump through the hoops that are the reunification plan. What followed thereafter was not in the least bit unusual:
The department’s initial goal, outlined in their first service plan spanning August, 2009, until February, 2010, was to return Cecily to the mother and father. In October, 2009, the department’s goal changed from reunification to adoption. Subsequently, the mother began to comply with service plan tasks, as amended to reflect changes in the department’s goals, and a visitation schedule was provided for the mother and Cecily.
With her child still held as hostage, it may be presumed that the mother endeavored as best as she could to comply with her newly amended “service plan.” Thereafter followed the trial to terminate her parental rights. Perhaps not too surprisingly, the local team of professionals all sang harmoniously out of the same hymn book. As the Court of Appeal explains it:
At the trial to terminate the mother’s and father’s parental rights, several of Cecily’s treating physicians, including a child abuse specialist, two ophthalmologists, and a radiologist, testified as witnesses for the department regarding the diagnosis, genesis, and etiology of her injuries. Their unanimous opinion was that Cecily’s injuries were inflicted, and not accidental. Three experts retained by the mother and father, none of whom examined Cecily, testified at trial. They contended that the injuries she suffered were the result of a constellation of previously undiagnosed conditions including chronic subdural hematoma, rib injuries from birth, metabolic bone diseases (brittle bones), and blood clotting disease. In his findings, the judge credited the testimony of Cecily’s treating doctors and rejected the testimony of the parents’ expert witnesses on the basis that their opinions were not supported by the medical records in the case.2
The Court of Appeal continues on to explain that:
With respect to the mother, the judge concluded that she had failed to protect the child from conditions that were clearly harmful to the child, and that she lacked the insight needed to protect the child from future harm, thereby rendering her unfit to parent the child. As a result, he issued a decree terminating both parents’ right to receive notice of or to consent to any legal proceeding affecting Cecily, including any department-proposed plan of adoption. He found this to be in Cecily’s best interests.
But wait – isn’t the dad in jail? With him safely tucked away, just what conditions may the judge have seen the potential for? Preventing future harm is a laudable goal, but what specific future harm might have come about is unclear.
Regarding the sufficiency of the evidence, the mother contended “there was insufficient evidence of any parental shortcoming such as substance abuse, mental disease, domestic violence, or physical abuse to warrant terminating her parental rights.” In addition, she argued “that the evidence was unclear whether the child’s injuries were brought about by abuse or by genetics, including metabolic bone disease.”
That women sometimes find themselves involved in abusive relationships is without question. That they at times experience great difficulty in disengaging from those relationships is also well documented, just as it is well documented that, as nonoffending parents, they are often held to blame.3
Judge Johnston did not appear to give much weight to these considerations, as he ruled that: “faced with the overwhelming evidence that the father caused the horrific injuries to the child, the mother failed to acknowledge the evidence and failed to separate from Cecily’s abuser. Such a finding has significant weight in determining unfitness.”
It is that the mother “failed to acknowledge” the allegations that worked much to her detriment. The Court of Appeal, in upholding judge Johnston’s decision, cited three cases in support of his determination on that basis. These would be Adoption of Paula, 420 Mass. 716 (1995) (judge properly considers parent’s refusal to acknowledge abuse of child in determining fitness); Adoption of Larry, 434 Mass. 456 (2001) (same); and Adoption of Lorna, 46 Mass. App. Ct. 134 (1999) (parent’s inability to “recognize abuse and confront it preventatively” was solid evidence of parental unfitness).
Adoption Of Ilona managed to wind its way to an appeal on two occasions. In the first, (AC 09-P-667) 76 Mass. App. Ct. 481 (2010), the mother was made to jump through all of the hoops that are a “service plan.” As the Court of Appeals explains it, after initial delays,
the mother was provided with a service plan intended to improve the mother’s parenting skills that included a nurturing class, which Ilona also attended, and a program to teach the mother alternative forms of discipline and anger management. The mother completed both programs, which were conducted in Spanish, and reported that she enjoyed and learned a great deal from them. However, after the classes respectively ended in May and July of 2007, the department refused to offer her more classes because the mother had difficulty understanding the concepts taught, and failed, during supervised visits with Ilona, to demonstrate that she had learned those concepts.
The mother requested that she be provided family counseling with Ilona, however the Court explains “no action was taken on that request.” Thereafter, the department “held a permanency planning conference during which the goal was changed from reunification to adoption.” The mother filed a motion to compel the department to follow departmental regulations. Judge Johnston denied the motion.
It gets better. The department of social services hired one Nita Guzman as an “expert” to perform a parenting evaluation of the mother. Guzman was skeptical of the mother’s ability to change. The mother hired her own expert, who “discovered that Guzman was not a licensed clinician.”
The department, in turn, hired another expert – presumably one with an actual license. Judge Johnston, in his written findings, claimed to have discounted the testimony of the unlicensed witness in favor of the second expert the department offered up. Unfortunately, he also discounted the testimony of the mother’s witness.
“Here, the department terminated services and changed its goal based on a parenting evaluation that was discredited,” the Court of Appeals explains. In reference to the mother’s motion alleging that the department abused its discretion by not complying with its own regulations, judge Johnston wrote: “After hearing, within motion is denied. Issues raised may be presented at the hearing of the merits of the petition as to whether the department has met its obligation to make reasonable efforts for reunification.”
It is worth noting that Ilona’s social worker reported that Ilona “wanted to have continued contact with the mother.” During two observed visits:
Ilona was happy and excited to see the mother, that notwithstanding a “lack of spontaneous conversation,” the two “seemed to enjoy themselves and laughed.” In her reports, the social worker also acknowledged that visits went well. Baizerman concluded that the “relationship” between Ilona and the mother warranted their having continued contact with each other. In these circumstances, the judge abused his discretion in not ordering specified visitation.
If you’re thinking that this may have led to a fair and just conclusion, you are bound for disappointment. The Court of Appeal ultimately upheld the termination of parental rights, and remanded the case back to the juvenile court solely on the issue of “postadoptive visitation.”
The Supreme Court was next to hear the case in Adoption Of Ilona, (SJC 10741) 459 Mass. 53 (2011).
The Supreme Court ruled that the “reasonable efforts” provided by the department were reasonable enough, and it ultimately concluded that judge Johnston did not abuse his discretion in ordering the termination of the mother’s parental rights, or in deciding that the question of future visitations were best left to the informed decision making of Ilona’s adoptive parents.
Adoption Of Zander (and three companion cases), (AC 12-P-491) 83 Mass. App. Ct. 363 (2013) arose “from the adoption plan for Sam and from the visitation determinations by a judge of the Juvenile Court.” That would be judge Joseph F. Johnston. In summary:
Different parties to the adoption appeal separate aspects of the decrees: (1) Sam’s biological father and mother appeal the judge’s decision to accept the Department of Children and Families (DCF) adoption plan rather than the biological father’s plan and the judge’s decision to deny them postadoption visits with Sam; (2) Marjorie, Amy, and Zander (the three oldest children) and the mother argue that the judge did not order sufficient visitation between the above children and the mother; and (3) the three older children and the mother also argue that the judge committed error in refusing to issue an official sibling visitation schedule. We affirm in part and remand on the issue of sibling visitation between the three oldest children.
The Court, while noting that it was “respectful of the judge’s determinations,” remanded the case “for the judge to provide a schedule for posttermination and postadoption sibling visitation.” In all others respects, it affirmed judge Johnston’s decrees.
The case of Adoption Of Jacques, (AC 11-P-190) 82 Mass. App. Ct. 601 (2012), began with – you guessed it – the filing of a 51-A form by a mandated reporter.
The Department of Children and Families first became involved with the family when Jacques was two years old, with the filing of a 51-A “when the mother took Jacques to the hospital, reporting that he was lethargic and had been vomiting.”
An examination revealed that Jacques had suffered bruising to his abdomen, buttocks, and legs. A CAT scan further revealed a pancreatic injury, for which Jacques underwent surgery. The Court of Appeals explains:
A doctor noted that Jacques’s injuries were consistent with a force type of trauma. Although Jacques suggested at the time that it was Bruce who had abused him, the department supported the allegation of neglect by an unknown perpetrator. A review of Jacques’s medical records at the time also revealed that he had been admitted to the hospital shortly after his birth for failure to thrive. At that time, Jacques’s doctor was also concerned about the possibility of abuse or neglect.
The Court explains: “The mother testified that Jacques’s abdominal injury was caused by a fall while playing outside, although she gave inconsistent accounts to the doctors about what had happened following the injury. The judge did not credit the mother’s testimony. The department filed an emergency care and protection petition, and was granted custody of Jacques. Jacques was returned to his mother’s care about one year later.”
The mother was initially non-compliant with the department, but, as the Court notes:
The mother’s compliance did, however, improve over the course of time, and by the time of trial, she had a record of consistent visits with Jacques, had completed a parenting class, and was attending an anger management class. The mother had also completed the psychological evaluation that the department had requested in order to determine if she and Jacques would be able to attend family therapy, but she refused to release the results. The judge found that the mother “purposefully withheld her evaluation results in [an] effort to conceal what I can only conclude are unfavorable results.”
Putting a parent through all of the motions of a reunification plan and changing course mid-stream is nothing unusual. There was, however, something very unusual about this particular case. As the Court of Appeals explains:
Before proceeding with the arguments on appeal, we begin by addressing Jacques’s position on appeal. Following the issuance of the judge’s decision, at a subsequent status report hearing, it came to this court’s attention that the position of Jacques’s appellate counsel was in direct opposition to that of his trial counsel. In particular, Jacques’s appellate counsel sought reunification, whereas Jacques’s trial counsel maintained her position that the mother’s rights should be terminated. In response to the conflicting advocacy, the judge held an in camera meeting with Jacques to ascertain Jacques’s feelings on reunification. Following that meeting, the judge reported to counsel that his decision and orders would remain the same. Jacques’s appellate counsel thereafter filed an appellant brief in this court.
The Court of Appeals reaffirmed that prior history “is admissible as prognostic evidence of future unfitness and was within the purview of the judge to consider.”
The Court of Appeal did find itself compelled to note: “We agree that the judge may have given less attention to the mother’s recent gains than they deserve. Nevertheless, the judge was entitled to consider the evidence of her recent improvements within the context of her earlier and continuing deficits. Weighing strengths against weaknesses is within the core competency of the trial judge, who has the benefit not only of the evidence, but of seeing and assessing the parents themselves.”
In a rather ironic twist, the Court of Appeal points to a case that it recently decided involving the very same judge Johnston. Citing Adoption of Ilona, 459 Mass. 53, 59-60 (2011), holding that for substantially the same reasons, “the judge did not err in concluding that the mother’s unfitness ‘is likely to continue into the indefinite future to a near certitude.’”
A juvenile court judge establishes a precedent on an appeal from his court that is shortly thereafter cited in his favor in a subsequent appeal. Imagine that.
1. See e.g., Susan Donaldson James, “Mom of Sick Connecticut Teen ‘Collapses’ in Court After Judge Sends Kid to Foster Care,” ABC News, (February 25, 2014) (“Pelletier had already broken an Essex County family court judge’s gag order with ABCNews.com earlier this month, saying, ‘I have got to save my daughter’s life.’”); Liz Klimas, “Judge Rules Justina Pelletier to Remain in State’s Custody,” The Blaze, (March 25, 2014) (reporting that “Suffolk County juvenile court Judge Joseph Johnston” had issued an adverse ruling).
2. Compare this outcome to judge Johnston’s determination that Justina Pelletier definitively had somatoform disorder rather than mitocondrial disease. The crucial point being that not only did the judge decide which medical testimony was more “credible” in terms of guilt or innocence in an alleged abuse case, but ipso facto decided which diagnosis a teen-aged girl actually has in the face of conflicting medical opinions. The questions begging to be asked at this juncture are: Should all differences of medical opinion be decided in this manner? When two doctors disagree, should a single judge decide who is right based on the “credibility” of their testimony? Would a tribunal of juvenile court judges be more appropriate? If so, would a simple minority opinion of two to one be sufficient to make the determination?
3. Sankaran, Vivek. “But I Didn’t Do Anything Wrong: Revisiting the Rights of Non-Offending Parents in Child Protection Proceedings.” Mich. B. J. 85, no. 3 (2006): 22-5 (“The practice of assuming jurisdiction over a child solely on the basis of the wrongdoing of one parent raises serious constitutional concerns”); Greene, Angela. “The Crab Fisherman and His Children: A Constitutional Compass for the Non-Offending Parent in Child Protection Cases” Alaska L. Rev. 24 (2007): 173. (“The legal question is whether a court can adjudicate these children as in need of aid when a fit, non-offending parent is willing and able to care for them, notwithstanding the acts of the offending parent”); Sankaran, Vivek S. “Parens Patriae Run Amuck: The Child Welfare System’s Disregard for the Constitutional Rights of Nonoffending Parents.” Temp. L. Rev. 82 (2009): 55 (“juvenile courts continue to disregard the constitutional rights of nonoffending parents, individuals against whom the state has made no allegations”); Grace, Elizabeth KP, and Susan M. Vella. “Vesting mothers with power they do not have: The non-offending parent in civil sexual assault cases: J.(LA) v. J.(H.) and J.(J.).” Can. J. Women & L. 7 (1994): 184 (Reflecting on first Canadian case in which a mother was found to have “failed to protect” her child against the abuser, advancing argument that this sets unrealistic standards for non-offending women perpetuating an ideology of mother-blaming); Dettlaff, Alan J., and Ilze Earner. “The intersection of migration and child welfare: Emerging issues and implications.” The Intersection of Migration and Child Welfare: Emerging Issues and Implications (2007) (describing ((p 16)) social intervention method that “allows the non-offending parent to achieve safety in a faster way because it helps her overcome obstacles making it difficult to leave”); Earner, Ilze. “Double risk: Immigrant mothers, domestic violence and public child welfare services in New York City.” Evaluation and program planning 33.3 (2010): 288-293 (“leaving an abusive relationship is complicated by special needs and challenges”); Breckenridge, Jan, and Eileen Baldry. “Workers dealing with mother blame in child sexual assault cases.” Journal of Child Sexual Abuse 6.1 (1997): 65-80 (“It was concluded that mother blame pervades much of the thinking and understanding of policy makers and workers and that therapeutic practice can be strongly biased by this belief to the detriment of both child and mother”); Jaffe, Peter G., and Claire V. Crooks. “Understanding women’s experiences parenting in the context of domestic violence.” Violence Against Women Dnline (2005) (“The identification of domestic violence and understanding the impact on a woman is difficult in and of itself. When her parenting role and the well-being of her children are being considered, these issues are even more complex”); Liebmann, Theo. “What’s Missing from Foster Care Reform-The Need for Comprehensive, Realistic, and Compassionate Removal Standards.” Hamline J. Pub. L. & Pol’y 28 (2006): 141. (“In order truly to protect children from the perils of the foster care system, we must examine the out-dated and short-sighted standards nearly every state currently uses to justify initially removing children from their parents and placing them in foster care in the first place”).
To be sure, men may also be victims of intimate partner violence by women. See e.g., Kimmel, Michael S. “‘Gender Symmetry’ in Domestic Violence A Substantive and Methodological Research Review.” Violence against women 8.11 (2002): 1332-1363 (noting “more than 100 empirical studies or reports that suggest that rates of domestic violence are equivalent”); Coker, Ann L., et al. “Physical and mental health effects of intimate partner violence for men and women.” American journal of preventive medicine 23.4 (2002): 260-268 (“Both physical and psychological [intimate partner violence] are associated with significant physical and mental health consequences for both male and female victims); Archer, John. “Sex differences in aggression between heterosexual partners: a meta-analytic review.” Psychological bulletin 126.5 (2000): 651 (Providing a comprehensive analysis, clarifying definitions, and attempting to establish a reliable framework for further analysis).
There was a time when unwarranted intervention into family life was truly a bipartisan issue.
I know that may be hard to believe, but it’s true.
In the January 27, 1996, edition of Boston Globe, staff writer Michael Grunwald explained that by the 1980s, “family preservation” had caught on as something of a movement, embraced by politicians of all stripes, as:
Religious conservatives were denouncing the breakup of families. Libertarians were attacking “child-snatching” agencies that invaded homes. Liberals were accusing agencies of taking away poor minority children instead of giving their families needed services.
During the 1970s, and throughout the early 1990s, many advocates charged during Congressional hearings that child protection had grown into an “industry.” It was no different in Massachusetts.
In the October 25, 1992, edition of the Boston Globe, staff reporter Victoria Benning wrote: “The state Department of Social Services, under fire for mishandling foster child cases, is an agency riddled with problems, from gross mismanagement and poor communication by managers to a lack of vision and little support from Gov. Weld, according to advocates and others in the child welfare system.”
Inquiries into the Massachusetts Department of Social Services had produced some strong critics of the agency, as Benning explained:
“They will tell you the issue is money. I don’t believe it,” said Stephen Bing, executive director of the Massachusetts Advocacy Center. “When DSS was created, it had a $90 million-plus budget; today it’s about $400 million. That’s a growth industry.”
“To be sure, every agency could use more resources, but that’s not the fundamental problem,” he said. “The fundamental problem is vision and leadership and translating that vision into the field.”
That view was bolstered last week by a new report by a private consulting company that found that DSS is suffering such a severe “organizational breakdown” that the number of children who are abused or who could die will increase unless drastic changes are made immediately.
The report said DSS has a lack of management direction and oversight, poorly thought-out initiatives, and no coordination with other state agencies.
Critics were to be found on both sides of the political aisle, at the time. Indeed, for many years, one of the agency’s most outspoken critics was former Rep. Marie Parente – herself a former foster child – who Benning described as “a champion of foster care issues during her seven terms in the Legislature.”1
Benning also put Parente on the record as saying that: “The major problem is the lack of due process and lack of accountability,” and of saying that DSS is “a very totalitarian kind of agency. We’ve given too much power to an agency that has run amok.”
By that time, not only had the Department of Social Services earned the reputation of running amok; it had also earned the reputation of being corrupt, as Benning explained: “the state comptroller temporarily placed the agency in fiscal receivership while he investigated allegations that agency budget officers illegally shifted expenses from one fiscal year to another to cover up deficits. The investigation found the agency illegally used $5.2 million in 1992 finances to pay 1991 bills.”
In August 2004, Boston Globe correspondent Jessica E. Vascellaro reported Parente as having suggested that the state may be motivated to label children as mentally ill because of the reimbursement checks they receive from the federal government, which compensates Massachusetts for about half of all Medicaid expenditures.
Vascellaro continued on to report that according to Parente, the state files a pre-expenditure report outlining expected costs and each patient’s eligibility for Medicaid and other federal aid. While the state is not reimbursed until it submits a report of services actually provided, Parente said there is a lot of room for the state to fudge numbers and list services that were never delivered.
“I am very concerned that they not label these children as having mental health problems in order to receive federal reimbursement,” Parente said.
More to the point, Vascellaro closed out her column by saying:
Loretta Kowal, a Massachusetts social worker on DSS’s professional advisory committee, said Massachusetts doctors strongly endorse the use of psychotropic medicines.
“We have seen them be successful over and over again,” she said. “There probably is a belief in the Massachusetts community that when all else fails, you try what’s in the cabinet.”
Marie Parente introduced legislation to curb the use of psychotropic medications on foster children.
During her tenure as a legislator, Parente sponsored legislative amendments that would have created a task force to study how many children in state care were being prescribed psychotropic medications. After her measure was finally approved by both the House and the Senate, then-Governor Mitt Romney vetoed the amendment during the early summer of 2004.
Carole Keeton Strayhorn released the landmark Forgotten Children report.
To apply the proper historical perspective, this came during the same year that former Texas Comptroller Carole Keeton Strayhorn released her groundbreaking report Forgotten Children – the report that opened the window on the widespread use of psychotropic medications on children in foster care.
That Parente is a Democrat, while Strayhorn is a Republican, doesn’t diminish either of their accomplishments. Nor should it.
Indeed, the US House Select Committee on Children, Youth, and Families – the very Committee responsible for having crafted the requirement that states make reasonable efforts to prevent the unnecessary removal of children from their homes – was itself truly a bipartisan body.
To develop a sense of the diversity found among the original Committee’s membership, consider that Democrat George Thomas Leland was an anti-poverty activist who went on to become a Congressman and Chair of the Congressional Black Caucus. Republican David Marriott served as a Mission President for The Church of Jesus Christ of Latter-day Saints in South Africa’s Cape Town Mission. And, as of 2011, former Committee member Dan Burton was a member of the Tea Party Caucus.2
To say that the House Select Committee on Children, Youth, and Families represented a “celebration of diversity,” to borrow a catch-phrase of our times, would be something of an understatement. But there was one point on which they all could agree. Children were being needlessly removed from their homes and being warehoused in foster care. The family was under attack, and the attacker was the state.
The bipartisan National Commission on Children issued a report that was highly critical of the “protective” services approach, urging the development of systems that were more responsive to – and more supportive of – the genuine needs of families. It is difficult to imagine such a bipartisan framework being hammered out today.
By the 1990s, any notion of valuing the family as a unit had fallen by the wayside, notwithstanding a great deal of rhetoric about “family values” at the time. The very notion of protecting and preserving the family had been recast as something of a fringe issue. It was with bipartisan approval that the Adoption and Safe Families Act was passed into law. The result – as many advocates had foreseen – was the creation of a new class of legal orphans with any hope of being reunited with their families dashed on the rocks.3
Meanwhile, child and family advocates had split along political and other more philosophical lines, seemingly oblivious to the damage being done. The Libertarian party seemed to offer a safe haven to some, while the Tea Party seemed to offer a safe haven for some others. Some parroted an ultra-conservative line that led them to believing that the United States would relinquish its very sovereignty if it were to endorse the United Nations Rights of the Child. That beleaguered parents in the United Kingdom were using the European Court of Human Rights to remedy wrongful separations of their families by the UK’s family court system seems to have escaped their notice entirely. Meanwhile, the child protection industry and their well-paid lobbyists and revenue maximization contractors have gone laughing all the way to the bank.4
To be sure, People for the American Way have done little to inspire the confidence of parents in the Democratic party. Their sophistic attacks against the Pelletier family by means of two recent articles entitled “Meet Justina Pelletier, The Religious Right’s Next Campaign,” and “Latest Judge’s Ruling In The Justina Pelletier Case Met With Outrage” are certain to alienate anyone who is even remotely familiar with the Pelletier’s case.
Nor has that bastion of liberty the Massachusetts Civil Liberties Union done much to inspire confidence. In February, the Globe reached out to them to see where they stand with things. After all, it had only been a year that Justina has been locked away in Boston Children’s Hospital, and clearly there must be some civil liberties issues involved. The Globe reported it thus:
Meanwhile Jessie Rossman, a staff attorney with the ACLU of Massachusetts, said Monday that it has been reviewing the First Amendment issues arising out of the gag order and that “we are deeply concerned about multiple aspects.”
She said no final decision has been made about whether to join the case, “but we are looking at ways that we can be helpful.”
I can’t say who it was, but I can say that it was neither the Massachusetts Civil Liberties Union nor anyone on Justina’s defense team that managed to have the gag order lifted. Rather it was a professional entirely outside of the legal profession who filed the motion to quash the order on First Amendment grounds. More specifically, the motion was submitted as: “A Plea for relief from the unpublished Prior Restraint imposed by judge Joseph Johnston.” (To be sure, that brave individual had the permission of Lou and Linda Pelletier to file the motion.) Once the judge saw the motion – poof! – the gag order disappeared. Imagine that.
It isn’t as if a gag order in a juvenile court case hasn’t been subject to legal challenges before. See for example FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834 (3d Cir. 1996). Do see also more generally Nebraska Press Assn. v. Stuart, 427 US 539 (1976) and New York Times Co. v. United States, 403 US 713 (1971).
People for the American Way do ask one question that begs for an answer: “Why, after months of total silence and literally no interest, did several Religious Right organizations suddenly and collectively begin to care about this case, all on the same day?”
I really don’t know why it took as long as it did. I’m only grateful that someone – regardless of whether they were on the left, the right, or midstream – took the legal ball and ran with it. When Liberty Counsel first appeared, they appealed to everyone saying that this ought be a truly bipartisan issue. Legislators in two states managed to unify in a bipartisan manner in support of the family even if the split wasn’t exactly equal between the two political parties.
Now, enter – stage left – prominent civil rights attorney Alan Dershowitz. And, just as with Liberty Counsel, better late than never. Thank you, sir, for helping to solidify this once and for all as a truly bipartisan issue.
During his Congressional testimony in 1995, Richard Wexler of the National Coalition for Child Protection Reform expressed the sentiment quite well:
I appeal to all of you not to allow this to become a partisan issue. The majority already has taken a step toward bipartisanship.
You invited a lifelong liberal Democrat to be your second witness. I am a card carrying member of the ACLU, and it was a former member of the ACLU National Board who founded the National Coalition for Child Protection Reform.
Child Saving combines the worst aspects of liberalism and conservatism. It will take the best of each philosophy to stop it, and provide real help and real hope to children in need.
There are some valuable lessons to be learned by those on both sides of the aisle when it comes to the issue of defending the sanctity of the family against the unwarranted intrusions of the state.
1. On September 18, 2006, state Representative Marie J. Parente lost her bid for re-election after serving in the House for 26 years.
2. In addition to Miller, members of the original Committee included William Lehman, Florida; Patricia Schroeder, Colorado; Lindy Boggs, Louisiana; Matthew F. McHugh, New York; Ted Weiss, New York; Jerry M. Patterson, California; Barbara Boxer, California; Barbara Mikulski, Maryland; Beryl Anthony, Jr., Arkansas; Mickey Leland, Texas; Sander Levin, Michigan; Bruce Morrison, Connecticut; J. Roy Rowland, Georgia; Gerry Sikorski, Minnesota; and Alan Wheat from Missouri – all of whom were Democrats. The Republican Representatives included Dan Marriott, Utah; Hamilton Fish, Jr., New York; Dan Coats, Indiana; Dan Burton, Indiana; Frank Wolf, Virginia; Nancy Johnson, Connecticut; John R. McKernan, Jr., Maine; and Barbara Vucanovich, Nevada. Also among the original memebers was Thomas J. Bliley, Jr., who was a Democrat prior to 1980, and a Republican post-1980. Curiously, while Hamilton Fish IV was a Republican, his son, Hamilton Fish V, ran for the Congress in 1988 and 1994 as a Democrat without success.
3. For more information regarding the negative impacts of the Adoption and Safe Families Act and the creation of “legal orphans” see generally Cynthia Godsoe, Parsing Parenthood, Brooklyn Law School, Legal Studies Paper No. 253 (August 2, 2012); Sheri L. Hazeltine, Speedy Termination of Alaska Native Parental Rights: The 1998 Changes to Alaska’s Child in Need of Aid Statutes and Their Inherent Conflict with the Mandates of the Federal Indian Child Welfare Act, 19 Alaska Law Review 57-84 (2002).
4. The Declaration of the Rights of the Child specifically provides that: “The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother.” Many parents have managed to overturn rulings of family courts in the UK by using the Declaration of the Rights of the Child as well as other European human rights mandates to their advantage. Nevertheless, it is hardly worth the time and effort to extend any debate toward this issue, as the likelihood of the United States signing the Declaration is not very likely. I mention this only to note how handily many people are divided by issues that are largely red herrings. The political posturing has grown to such proportions that an American family that had recently endured the wrongful removal of their children entered a family support conference asking whether parents who were Democrats were also vulnerable to the wrongful removal of their children.
As today’s Boston Globe article by Neil Swidey explains it:
Lawyers for the girl’s parents and for the Massachusetts Department of Children and Families, which has had legal custody of Pelletier for more than a year, said the judge informed them that he will instead notify them of his decision by the end of the day on Tuesday.
Judge Joseph Johnston had pledged during a hearing Monday to rule by the end of the week, and there was no immediate explanation for the delay. The motion, presented by the 15-year-old’s court-appointed lawyer and the lawyers for her parents, Linda and Lou Pelletier of West Hartford, Conn., calls for the parents to be awarded “conditional custody” of their 15-year-old daughter. Johnston would be able to revoke the parents’ custody if they violate the terms of the agreement, which includes ensuring that Justina receives proper medical care and schooling.
You read that right. The same judge that had promised last Monday that a decision would be made this afternoon has deferred his decision until next Tuesday.
Ominous parallels between this and other cases continue to emerge with each passing day.
The tragic story of young Chelsey Cruz was well detailed by the Hartford-Courant.
Her mother testified before a Connecticut committee investigating its own department of social services on December 18, 2008, detailing her experience with Boston Children’s Hospital, saying:
We sought help from the Boston Children’s Medical Center. And at first, they agreed and began to wean her off the medications. She began to look and feel better. However, one fatal visit occurred when a chief doctor came on the scene. He demanded that Chelsey be put back on the experimental medications and threatened to call DCF if I resisted. I asked to seek a second opinion and was immediately dismissed. My daughter was forcibly admitted and guards were placed outside her door, keeping me from my child.
Massachusetts Department of Social Services and the Department of Children and Families in Connecticut worked to entrap us, and an order of temporary custody was obtained in Boston. I was told by the Boston Department of Social Services that I was no longer able to make any medical decisions for Chelsey. I went to the local newspapers with my story, sharing my pain and my hope to gain justice.
Far less publicity has been provided to Elizabeth Wray, who was held in Boston Children’s Hospital’s Bader 5 unit under circumstances similar to Justina’s case.
According to a posting on the Free Elizabeth Wray Facebook page: “After 10 months as a ward of the State of Massachusetts, Elizabeth returned home in August 2013.” Her condition is reported as improving.
The Hilliard family’s nightmare began in 2006, when their daughter, Eithene, was born with multiple birth defects. By age 2 1/2 her condition worsened, and she suggested to doctors at Boston Children’s Hospital that her daughter should be tested for mitochondrial disease.
When she and her husband approached Children’s Hospital with the possibility that she had mitochondrial disease, they were immediatly met with resistance, particularly from the hospital’s genetics and metabolism departments. The child protection team thereafter became involved.
Bobby Schindler knows the situation well. As Bobby explains it: “It was nine years ago, March 18, 2005, that my sister, Terri Schiavo’s feeding tube was removed by order of Pinellas County Florida Court Judge, George W. Greer. It was by Greer’s order that Terri would slowly die by way of starvation and dehydration. It took almost two-weeks.”
Over time, he writes, a familiar pattern has emerged:
Indeed, we receive calls similar to what our family experienced – a domestic dispute over the care of a family member. However, more and more, we are getting calls from people who are fighting physicians, ethic committees, or the health care facilities where their loved ones are being treated.
It can even go as far as, if you can believe it, families having their loved ones stripped away from their care by the hospital, losing complete custody.
When this does happen, there appears to be a certain pattern that begins the process.
First, the hospital physicians, nurses or even the staff will create or exaggerate a situation involving the family, most times without any real evidence, or they will fault the parents or loved one who is the caregiver with some type of mishap with the patient.
Often times what follows is the family member(s) who were making medical treatment decisions are vilified, or accused of being the problem. This gives the hospital a reason to intervene and subsequently take action to deem the family incompetent as the caretaker.
The hospital can then go as far as restricting visitation rights, or completely stopping any family member from visiting their loved one, claiming that they are a “threat” to the care of the patient.
The hospital can then go to court in order to gain control of the patient by requesting that a guardian be appointed or even the hospital itself, in place of the family members who were caring for their loved one.
The family who was once in the position of taking care of their loved one is now on the outside looking in – having no legal rights or any ability to help or even visit them.
It can happen anywhere. Some time ago, the Seattle Post-Intelligencer reported on cases of parents being charged with medical abuse. A Seattle pediatrician named Kenneth Feldman figured prominently in many of these cases.
At that time, at least five families had claimed that they were victimized by a misdiagnosis that ripped apart their lives. As the paper explains it:
Feldman, one of Washington’s top child-abuse experts, considers himself an authority on Munchausen by proxy – a controversial mental illness that drives mothers to deliberately make their children sick, or falsify symptoms, in order to get attention for themselves. Fathers are almost never diagnosed with the disorder.
Many experts believe the syndrome to be rare, but Feldman is convinced otherwise. During the last 25 years, he’s been involved in more than 100 Munchausen cases – far more than any other doctor in the state.
Because Feldman works for Children’s Hospital and Medical Center in Seattle and consults for the state’s Child Protective Services agency, those allegations invariably trigger strong emergency responses, often resulting in the removal of young children, at least temporarily, from their homes.
The picture that emerges as people continue to connect the dots is rather amazing.
“Philip Patrick died a horrifying death as a ‘medical hostage’ at Vanderbilt Children’s Hospital in Nashville, TN,” explains the MAMA web site. Thus, Mother’s Against Munchausen’s syndrome by proxy Allegations was born.
The site remains on line after many years. Mito-moms and other advocates ought take heed: There is a significantly bigger picture here waiting to be revealed.
“In Georgia, aggressive efforts to incarcerate parents for child support debt are often focused on the poor, rather than on wealthier parents who willfully dodge their child support obligations. Georgia is also one of the few states that forces indigent parents who owe child support debt to plead for their liberty, without counsel, against an experienced, state-funded lawyer who is trying to send them to jail,” the Southern Center for Human Rights explains.
“Each year, Georgia jails thousands of unrepresented parents for child support debt in proceedings initiated by the State. Many of these parents are held for months – some for over a year – even though they have no money to pay and no way to earn money while in jail.”
In March 2011, the Southern Center for Human Rights filed Miller, et al. v. Deal, et al., in the Fulton County Superior Court, “on behalf of indigent parents jailed for child support debt in proceedings in which the State was represented by counsel, but the parent did not have counsel.”
According to the civil complaint, filed March 22, 2011, the case seeks “to remedy the State of Georgia’s persistent failure to guarantee legal representation to indigent parents who face incarceration in child support contempt proceedings, as required by the Georgia Constitution and the United States Constitution.”
The complaint continues on to say that:
Plaintiffs are indigent parents who have been jailed without counsel for being too poor to fulfill their court-ordered child support obligations. Some of the Plaintiffs have serious physical disabilities. Others have spent months looking for work, only to find none. All are destitute, but all have been or will likely he incarcerated pursuant to civil contempt orders that condition their release on payment of enormous “purge fees.” Languishing in jail for weeks, months, and sometimes over a year, these parents share one trait in common besides their poverty: they went to jail without ever talking to an attorney. Not one Plaintiff had an appointed attorney to explain to a court that, through no fault of his own, he had no ability to pay. Not one had an appointed attorney to bring to a court’s attention that he had been sitting in a jail for weeks or months without the means to pay his purge fee. And every Plaintiff who sought the assistance of appointed counsel has been met with no reply. The families of the Plaintiffs have been left with gaping holes – jailed parents and a source of financial support rendered unable to provide a helping hand.
There is one crucial aspect of the case that is being directly challenged. That is the rather subtle difference between a criminal contempt charge and a civil contempt charge.
As the United States Supreme Court has made clear: “The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U. S. 358, 364 (1970). In so holding, the Supreme Court “emphasized that proof beyond a reasonable doubt has traditionally been regarded as the decisive difference between criminal culpability and civil liability.” Jackson v. Virginia, 443 US 307, 315 (1979). Hence, “it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself.” Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911).
The Supreme Court’s guidance notwithstanding, courts in various jurisdictions have struggled to clarify the differences between the offences of criminal and civil contempt.1
We are concerned here with a civil contempt charge, which offers a defendant lesser protections than does its criminal counterpart. As the state of Georgia resides within the purview of the 11th Circuit, it is thus bound by that Court’s rulings.
“Every civil contempt proceeding is brought to enforce a court order that requires the defendant to act in some defined manner.” Mercer v. Mitchell, 908 F.2d 763 (11th Cir. 1990). Due process requires adequate notice and a fair opportunity to be heard before a civil contempt citation issues. Riccard v. Prudential Ins. Co., 307 F.3d 1277 (11th Cir. 2002). “Civil contempt is only appropriate where the proof of noncompliance with a court order is clear and convincing.” United States v. Hayes, 722 F.2d 723 (11th Cir.1984).
“In determining whether a party is in contempt of a court order, the order is subject to reasonable interpretation, though it may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.” Id; Georgia Power Co. v. NLRB, 484 F. 3d 1288 (2007)(citing with approval Riccard v. Prudential).
In FTC v. Leshin, 618 F.3d 1221 (11th Cir. 2010) the Court held that a civil contempt finding must be supported by clear and convincing evidence that the allegedly violated order was valid and lawful, the order was clear and unambiguous, and the alleged violator had the ability to comply with the order. Only after these showings are made may a contemptor be called forth to “show cause” why he should not be held in contempt.
The civil contempt package was well-summarized by the 11th Circuit Court of Appeals in United States v. Hayes, supra:
A party petitioning for a civil contempt finding must prove by clear and convincing evidence that the respondent violated a court order. Once a prima facie showing of violation has been made, the respondent can defend his failure on the grounds that he was unable to comply. To succeed on this defense, however, the respondent must go beyond a mere assertion of inability and satisfy his burden of production on the point by introducing evidence in support of his claim. In this circuit, a party under court order to produce documents has a duty to make in good faith all reasonable efforts to comply.2
Somewhat more specifically, under Georgia law, a court may jail a parent only if it finds that the parent wilfully failed to comply with a child support order. Dep’t of Human Res. v. Tabb, 472 S.E.2d 540 (1996) (“A finding of willfulness is necessary to hold a parent in contempt of a support order”).
Under Georgia law, a Court must release a person held in contempt for failure to pay child support when it is clear that the person does not have the money to pay the purge fee. Hughes v. Dep’t of Human Res., 502 S.E.2d 233 (1998) (“A trial court, however, may not continue incarceration for civil contempt when the respondent lacks the ability to purge himself. Imprisonment under civil sanctions is always conditional and a party found in contempt may apply for release at any time upon a showing of inability to pay”).
HEART OF THE MATTER
The heart of the matter is that as states redoubled their efforts to reimburse themselves for TANF, juvenile justice, and foster care costs, they waged aggressive campaigns against non-custodial parents for the lion’s share of the reimbursements. By cloaking debts to the state as “child support,” a veritable Pandora’s Box is opened allowing the state to use means that may not otherwise be available to it if the debt were treated as a conventional debt owed to the state. Precious little of the money collected directly benefits children.3
Many courts are either unaware of – or choose to flagrantly disregard – the applicable caselaw. Moreover, many courts have themselves become part and parcel of the revenue maximization apparatus.4
The Southern Center for Human Rights addressed many of these particular issues in their civil complaint:
Because child support contempt proceedings are labeled civil, Plaintiffs and other similarly situated parents are denied legal assistance. Whereas persons charged with criminal contempt are afforded the right to counsel and may be incarcerated for no more than twenty days, see O.C.G.A. § 15-6-8, parents charged with civil contempt for falling behind in their child support obligations are routinely jailed indefinitely – for months, a year, or longer – without any help or guidance from an attorney. People facing criminal charges are accorded process: they appear in front of judges; their hearings are recorded; they have the right to a jury trial. By contrast, indigent parents such as Plaintiffs go to jail after civil contempt proceedings that are often perfunctory, un-recorded proceedings, lasting just minutes, at which there is no significant inquiry into their ability to pay. In some instances, Plaintiffs have been jailed for months without a hearing and without any judicial review of their incarceration.
On Cotober 28, 2011, the Center filed a legal brief with the Fulton County Court, explaining in detail why the case should proceed as a class action suit. Fulton County Superior Court Judge Jerry Baxter granted the motion to certify the case as a class action in December of 2011. The class consisted of all indigent parents who, without appointed counsel, face incarceration for nonpayment or underpayment of child support in contempt proceedings at which the state Department of Human Services is represented by state-funded counsel.
The state appealed, and the Georgia Court of Appeals reversed the case in Deal v. Miller, 739 SE 2d 487 (March 20, 2013). The court held that the case failed to satisfy the requirement that there be questions of fact or law common to all class members, and that the claims of the named plaintiffs be typical of those of the class. As none of the named plaintiffs had requested counsel at or prior to the contempt proceedings leading to their incarceration, the Court held that they were not denied due process. The purported class members had provided no proof that were either qualified for – or were denied access to appointed counsel.
Southern Center for Human Rights attorney Sarah Geraghty making her case in the Georgia Supreme Court.
The Center thereafter appealed the ruling to the Georgia Supreme Court. On April 24, 2013, a Petition for Writ of Certiorari was filed in the Georgia Supreme Court, and the Georgia Supreme Court accepted the case for its review on September 23, 2013.
On Tuesday, January 21, 2014, oral arguments were made before the Court.
According to the case docket record in the Georgia Supreme Court Computerized Docketing System, Miller et al. v. Deal et al is currently in the stage of the parties to the action filing legal briefs. As of the March 19 docket, the last action in the case was on February 21, 2014, with the Appellant having filed a Supplemental Brief.
1. For example, in the Fourth Circuit, “The element of criminal intent is necessary to a contempt conviction” United States v. Warlick, 742 F.2d 113, 117 (4th Cir.1984); U.S. v. Marx, 553 F.2d 874, 876 (4th Cir. 1977). Thus, the Fourth Circuit adopted the language of U.S. v. Seale, 461 F.2d 345, 368-69 (7th Cir. 1972) which defined criminal intent as “a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful.” The Fourth Circuit explaines in Richmond Black Police Officers Ass’n v. City of Richmond, 548 F.2d 123, 129 (4th Cir.1977): “To support a conviction of criminal contempt for violation of a court order, it must be proved beyond a reasonable doubt that a person willfully, contumaciously, intentionally, with a wrongful state of mind, violated a decree which was definite, clear, specific, and left no doubt or uncertainty in the minds of those to whom it was addressed.”
In expressing its disdain for the distinction between the civil and criminal variety of contempt, the Virginia Court of Appeals explained: “The jail doors clang with the same finality behind an indigent who is held in contempt and incarcerated as they do behind an indigent who is incarcerated for a violation of a criminal statute. We eschew the rubric of ‘criminal’ versus ‘civil’ in determining what process is fair.” Krieger v. Commonwealth, 38 Va. App. 569, 566 (2002) (en banc). In seeking further to claify the subtle distinction, the same Court explained some two years later that: “Proceedings for contempt of court are of two classes — those prosecuted to preserve the power and to vindicate the dignity of the court, and those instituted to preserve and enforce the rights of private parties. The former are criminal and punitive in their nature; the latter are civil and remedial.” Estate of Hackler v. Hackler, 602 S.E.2d 426, 435 (Va. Ct. App. 2004).
2. United States v. Hayes, 722 F.2d 723, 725 (11th Cir.1984). Internal citations and quotation marks have been removed for sake of clarity.
3. See for example Department of Health and Human Services, Office of Inspector General, Review of Rising Costs in the Emergency Assistance Program, (A-01-95-02503) October 6, 1995 (discussing how states shifted child welfare, foster care and juvenile justice costs to the EA program); Department of Health and Human Services, Office of Inspector General, Reconciliation of Expenditures, Title IV-A Emergency Assistance Program, Nebraska Health and Human Services System, (A-07-98-01035) April 13, 1999 (states use of funds in calculating TANF awards); U.S. General Accounting Office, Medicaid: States Use Illusory Approaches to Shift Program Costs to Federal Government, Pub. no. GAO/HEHS-94-133, 1994 (noting some states employ a variety of methods to transfer Medicaid funds to the state treasury or for purposes other than for which they are intended); Department of Health and Human Services, Office of Inspector General, Review of Medicaid Enhanced Payments to Local Public Providers and the Use of Intergovernmental Transfers, (A-03-00-00216) September 11, 2001 (“many of the enhanced payments were not retained by the facilities to provide services to Medicaid beneficiaries. Instead, some or most of the funds were transferred back to the States for other uses”); Department of Health and Human Services, Office of Inspector General, Connecticut Title IV-E Training Costs Did Not Always Comply With Federal Requirements (A-01-12-02500) December 17, 2012 (state agency should refund the Federal share of $1.3 million); Department of Health and Human Services, Office of Inspector General, Nebraska Improperly Claimed Some Child Care and Development Targeted Funds (A-07-12-03175) April 30, 2013 (State agency improperly obligated $2 million of targeted funds after the obligation period had ended; improperly claimed $974,000 of expenditures that were not for targeted funds activities; did not refund to the Federal Government $37,000 of targeted funds); see also Daniel L. Hatcher, Foster Children Paying for Foster Care, 27 Cardozo L. Rev. 1797 (2006); Child Support Harming Children: Subordinating the Best Interests of Children to the Fiscal Interests of the State, 42 Wake Forest L. Rev. 1029 (2007); Collateral Children: Consequence and Illegality at the Intersection of Foster Care and Child Support, 74 Brooklyn L. Rev. 1333 (2009).
4. That the maximization of revenue has become the raison d’être of many a court system is beyond reasonable doubt. Georgia’s 2007 Program Improvement Plan for Title IV-E Eligibility Review – a corrective plan submitted to the federal Department of Health and Human Services – clearly spells out that the state’s Revenue Maximization unit will provide a critical oversight function over the juvenile and dependency courts. (“RevMax will be the gatekeeper for court orders. Social Services staff will be required to forward a copy of all court orders and referenced attachments on active children in foster care as of June 30, 2007, to RevMax”).
See also Carl Reynolds and Jeff Hall, Conference of State Court Administrators, Courts Are Not Revenue Centers, Policy Paper, 2011 (“For revenue sources attached to civil cases, court leaders must advocate for the principles of access to justice, the balance of public good and private benefit in establishing court fees, and restricting revenue generation to court purposes only”); Alicia Bannon, Mitali Nagrecha and Rebekah Diller, Criminal Justice Debt: A Barrier to Reentry, Brennan Center for Justice, (October 2010) (“Overdependence on fee revenue compromises the traditional functions of courts and correctional agencies”); Alabama Judicial Inquiry Commission, Advisory Opinion 14-926, (March 4, 2014) (“orders of the court [must be] duly signed by the judge in a timely manner; that blank orders are never signed by the judge to be filled in by staff; that execution of orders not be delegated to staff by use of signature stamps; that all plea agreements, waivers of counsel, and other forms be properly executed and maintained; that counsel be appointed for indigent defendants where appropriate; that all orders and records of the court be retained by the court clerk as required by law; that the amount of fines imposed and court costs and fees assessed be limited to those allowed by law; that proper corrective action be taken upon discovery that the amount of such fines, costs, or fees was excessive and that traffic tickets be timely forwarded to the Department of Public Safety as required by law”); Human Rights Watch, Profiting from Probation, February 5, 2014; Hills McGee v. Sentinel Offender Services, LLC, No. 11-14077, D.C. Docket No. 1:10-cv-00054-JRH-WLB, (11th Cir. June 6, 2013) (“Sentinel has collected $5,675,639.20 in supervision fees from individuals who have been convicted of misdemeanor or ordinance violations in the State of Georgia and are presently under probation supervised by Sentinel, as well as $2,086,811.08 in electronic-monitoring fees and $183,049.00 in drug-screening fees from the same population, for a total of $7,945,499.28″); McGee v. Sentinel Offender Services, LLC, No. CV 110-054, 2010 WL 4929951 (S.D. Ga. Nov. 30, 2010) (noting that “35,753 individuals who have been convicted of misdemeanor or ordinance violations in the State of Georgia are under probation supervised by Sentinel”); Southern Center for Human Rights, Roadblocks to Reform: Privatization Perils for Georgia’s Criminal Justice System, (November 2012); American Civil Liberties Union, In For a Penny: The Rise of America’s New Debtors’ Prisons, (October 4, 2010) (“indigent defendants are imprisoned for failing to pay legal debts they can never hope to manage. In many cases, poor men and women end up jailed or threatened with jail though they have no lawyer representing them”); Timothy B. Lee, “Private Probation as a Monstrous Hybrid,” Forbes, (July 3, 2012) (“the judicial system isn’t, and shouldn’t be, a for-profit system”); Lauren Gambino, The Guardian, “
Thrown in jail for being poor: the booming for-profit probation industry“, as reported in Delaware County Daily Times (March 3, 2014); John Schwartz, “As State Courts Face Cuts, a New Push to Squeeze Defendants,” New York Times, (April 6, 2009).
SCHR’s Work to End Debtors’ Prisons in Georgia
Southern Center for Human Rights
This afternoon, with the airing of the popular Dr. Phil show, Justina Pelletier’s case gained national attention.
That comes as a small consolation for the anguish endured by the Pelletier family at the hands of Boston Children’s Hospital, the Massachusetts Department of Children and Families, and judge Joseph Johnston.
Rev. Patrick Mahoney – who heads the Christian Defense Coalition – accompanied the Pelletier family to Los Angeles for the taping of the Dr. Phil show last week. Rev. Mahoney said on his Facebook page that the message was “clear and simple. Parents know what is best for their children better than government agencies or courts!” He had hoped that the show being aired on the day of the latest hearing on the case would have had maximum impact.
By now, the case has been covered by a wide variety of sources, including National Public Radio, Boston Globe, FOX News, People Magazine. The Blaze, as well as the United Kingdom’s The Mail, which carried an extensive interview with Justina’s parents.
In a posting on the Liberty Voice web site, Penny Swift reported on recent efforts at obtaining relief from the legislature:
Jim Lyons and Marc Lombardo both Republican state representatives headed a campaign to persuade the Massachusetts House of Representatives to force the DCF to release Justina from state custody. They had 16 Republican and seven Democrat signatures but reportedly lost the battle on Wednesday when Democrat David Linsky sent the matter to a Rules Committee. He said this was standard procedure and argued that there was, in any case, a court case pending.
“I think my record shows that I am no fan of the current DCF but we all have to respect a pending court case,” Linsky said. “The Legislature can’t step in because that would be a violation of the separation of powers.”
Meanwhile Lombardo said it was time Justina was released from DCF custody “where she is dying.” Instead she should be allowed to “go home to her family in Connecticut.”
The Blaze was among the first to report on the results of today’s court hearing. “A juvenile court judge on Monday afternoon made no ruling in the case of the Connecticut teen at the center of a high-profile custody and medical diagnosis battle. The judge instead said that he would make a ruling by Friday, Mat Staver with Liberty Counsel announced outside of the Boston courthouse Monday afternoon, calling it ‘another kicking of the can.’” wrote Liz Klimas.
“After the latest hearing at the Edward W. Brooke Courthouse, Staver said that Judge Joseph Johnson would be ruling on Justina’s custody by Friday. All options are on the table, including custody going back to her parents as part of a conditional plan, custody being transferred to Connecticut’s Department of Children and Families or custody remaining with Massachusetts DCF.”
The Courant reported that: “The Pelletiers’ attorneys and the Justina’s court-appointed attorney, Nancy Hathaway, agree that she should go home to the Pelletiers, Staver said, but that Massachusetts Department of Children and Families is opposed.”
Staver also said the judge would rule on the family’s request to have him as an official lawyer on the case, which is something that DCF opposes.
As I pen these words, the news is just now trickling out from multiple other media sources. I’ll borrow more from Liz Klimas, who has so far done a wonderful job of covering these events.
“Neither Lou nor Linda Pelletier spoke with the press after the hearing, but their eldest daughter Jessica said ‘we just want our sister home’ and noted that they are still hopeful,” Klimas explained.
I, too, am still hopeful that justice will ultimately prevail for the family. Unfortunately, we’ll all have to wait until Friday to find out.
There were have been some dramatic developments in the case of West Hartford teenager Justina Pelletier.
“Justina Pelletier’s next hearing is slated for March 17, but a group of Massachusetts lawmakers is pushing for an immediate release,” explained FOX News journalist Beau Berman.
“According to Mass. State Representative Marc Lombardo, as of 5pm Wednesday, he and Rep. Jim Lyons had 12 representatives backing a resolution that would start the process of releasing Justina Pelletier to her parents right away.” Rep. Lombardo was to raise the resolution at the next House of Representatives session, set for March 5.
According to an article in the Lowell Sun, “The self-stated goal of the Department of Children and Families is to strengthen the link between families,” Lombardo said in a statement. “Removing a child from her family is reserved for only the most egregious circumstances where evidence of malicious intent, negligence or the blatant inability to care for the child is present. No such findings are present in this case.”
According to an article on MyFoxBoston.com, Lyons added: “The Pelletier case is a dispute between conflicting medical opinions, In my opinion, the decision on which medical treatment to adopt should rest with the parents, not with DCF. The Department’s heavy-handed, unjustified interference with the rights of these parents is an example of what is wrong with this agency.”
On Twitter, Lombardo thanked other State representatives that he said had signed onto the resolution, including Rep. Colleen Garry and Rep. Jim Miceli, both of whom are Democrats, making the Pelletier case a truly a bi-partisan issue.
Meanwhile, Connecticut legislators were busy organizing a bi-partisan effort of their own in anticipation of the return of Justina Pelletier to her home in New Hartford, Connecticut.
In just one day of time, Connecticut Senator Joe Markley managed to enlist the aid and support of twelve of his legislative colleagues in arranging a press conference that was held yesterday.
Senator Markley shared his concerns over the case at the conference that held at the Connecticut State Capitol.
The Pelletier family’s spokesperson, Reverend Patrick Mahoney, was also in attendance, as was Lou Pelletier, Justina’s father. Up until recently, Pelletier was bound by a gag order imposed on him by the Massachusetts judge presiding over family’s case – one that effectively prevented him from speaking publicly about the case.
On February 21, FOX News CT reporter Beau Berman reported that sources inside the Massachusetts Department of Children and Families, which has custody of Justina, “filed a motion to hold Lou Pelletier in contempt of court, accusing him of breaking the gag order.” That gag order was lifting the judge, and the contempt motion against him was dismissed.
During the press conference, Senator Markley shared a letter that he’d circulated to his colleagues that he would be delivering Connecticut Department of Children and Families Commissioner Joette Katz. In his letter, Markley urged the Department not to intervene in Justina’s cases, writing:
In the face of legal opposition and media scrutiny, it now appears that Massachusetts DCF wants to back away from this case and restore Justina to the custody of her parents. We see no reason for the Connecticut Department of Children and Families to involve itself in a case which has been so thoroughly examined to so little effect. This distressing story should end with Justina at home in the care of her parents, and we hope you will not delay that resolution.
Under questioning by the press, Senator Markley said that Massachusetts’ DCF had 13 months of time to construct a convincing case against the Pelltier family, and that during that time the agency had failed to provide any evidence of wrongdoing by the Pelltier family – nothing that would amount to something as damaging as an unpaid parking ticket.
“The assumption has to be that parents know best; and the grounds for government to step in have to be very clear and decisive. To say that one doctor disagrees with another doesn’t even begin to rise to that level,” Senator Markley explained.
Reverend Mahoney referenced the Pelltier case as “the canary in a coal mine” with respect to the unwarranted encroachment of parental rights by state authorities.
Mahoney explained that: “Thirteen months ago, she was ice skating. Justina was being educated, living a productive, wonderful life. Under the state of Massachusetts, she’s now in a wheelchair, her health is deteriorating, and she’s dropped to a second grade educational level.
“So I would just simply say ‘Who is the abusive party here?’ – and I would just leave that question open to the people.”
Lou Pelletier appeared reserved as he summarized his daughter’s case to the members of the news media in attendance. He also expressed his gratitude to FOX News CT reporter Beau Berman for having broken the story wide open.
Berman said on his February 21 broadcast that: “The medical mystery and custody nightmare for these parents is blowing up nationally and going viral online.
“At one point Wednesday, it was the number one most talked about topic on social media site Twitter, according to www.theblaze.com.”
By that time, the case had already been covered by sources as diverse as National Public Radio, Boston Globe, FOX News, People Magazine. as well as the United Kingdom’s The Mail, which carried an extensive interview with Justina’s parents, as well as photographs clearly depicting what the paper described as the “shocking decline” of a girl who was at one time a figure skater, and who had since so declined in Boston Children’s Hospital without proper medical care that she’ become “a shadow of her former self.”
After the press conference, Connecticut’s DCF sent Fox News CT a statement, saying, in part:
The Department of Children and Families understands the great pain and anguish that the Pelletier family has gone through over the course of their long ordeal. Our hearts go out to Justina, her parents, and the entire family. We too believe that children belong with their families whenever it is in the child’s best interest. Connecticut DCF has had communication with the Pelletier family and will continue to make efforts to be of assistance as Massachusetts authorities go through their process of deciding if Justina can return home. We also are assisting the Massachusetts authorities in gathering information in support of that decision making process.
WHERE FROM HERE?
“I’m going to be meeting with members of Congress to consider oversight hearings because clearly federal laws have been broken in the treatment and care of Justina,” said Rev. Mahoney during the conference.
Lou Pelletier will himself be speaking before the Massachusetts House of Representatives today, March 6, at 3:30pm. So far, 23 Massachusetts legislators are supporting a resolution to release Justina Pelletier to her family.
The next courtroom custody hearing is slated for March 17th, in Boston.
State Senator Joe Markley, Custodial Rights of Parents, Press Conference, VIDEO, March 5, 2014.
Parents Hail Small Victory for Sick Justina Pelletier, ABC News, March 5, 2014.
Senator Discourages State From Taking Custody Of Justina Pelletier, Hartford Courant, March 5, 2014.
Conn Legislators Sign Letter Asking State Agency ‘Not to Assume Custody and Care’ of Justina Pelletier, The Blaze, March 5, 2014.
‘Good News’ in the Justina Pelletier Case, The Blaze, March 3, 2014.
Judge approves shifting of Justina Pelletier’s care to Tufts Medical, Boston Globe, March 4, 2014.
First, Do No Harm: How We Failed Justina Pelletier and Her Family, Cristy Balcells, Executive Director MitoAction, Huffington Post, Feb 23, 2014.
An influential health-advocate is urging judges tp revoke child custody of smokers, even if they don’t smoke in the presence of their children.
According to a press release issued on February 12 by Professor John Banzhaf of the George Washington University Law School: “Smokers who have been awarded full or partial custody of their children, or even simple visitation privileges, in a divorce proceeding could lose custody or have their rights curtailed as the result of a new report showing that tobacco smoke residue on furniture, rugs, draperies, etc.”
The smoke residue, often called third-hand tobacco smoke, “can be as hazardous to a child’s health as secondhand tobacco smoke, says public interest law professor John Banzhaf, who has helped obtain court orders prohibiting smoking in private homes in dozens of states,” his release explains.
There is more. Banzhaf’s release continues on to say:
Increasingly, judges are considering the very harmful effects of secondhand tobacco smoke on children involved in divorce and custody disputes, and taking appropriate action to protect them. In some cases, parents have actually been denied custody because they smoke.
More commonly, however, says Banzhaf, who developed the legal theories under which nonsmokers are challenging their former smoking spouses, a judge will permit the child to visit the smoker, but only if there is no smoking in the home – sometimes 24 or even 48 hours prior to the visit.
Such judicial orders, banning smoking in homes while the child is present and for a reasonable period before visitation, are designed to protect the child from the well known hazards of secondhand tobacco smoke, and have been issued in about three fourths of all the states over a period of some 20 years.
But these judicial protective orders, in many states now being issued routinely, may no longer be sufficient to adequately protect a child, according to a new study at the University of California, Riverside, which found that third-hand smoke can be just as deadly as secondhand smoke.
Third-hand smoke, previously known as tobacco smoke residue, is the “tobacco smoke contamination that remains after the cigarette has been extinguished,” according to Scientific American. It has been labeled “toxic” by the medical journal Pediatrics, and a cancer risk to nonsmokers of all ages.
There is more still. Banzhaf explains that the new study “would provide a legal basis for a nonsmoking parent to reopen and modify a custody proceeding by arguing that a temporary ban on tobacco use by the smoking parent, or other smoking resident of the home, provides insufficient protection for the child’s health.”
The implications are clear. Because of the lingering third hand smoke in the home, even a smoker who quits would need to potentially replace carpets, furniture, drapery, and clothing. Walls would need to be repainted, and appliances would need to be scrubbed. This is so even in the event that a non-smoker moves into a home formerly occupied by a smoker, he asserts.
Beyond that, Banzhaf says that “he would be willing to work with and assist attorneys seeking to reopen custody determinations on that legal basis.”
The upshot of all this would be that once accepted by the courts, “this new argument, and the scientific research supporting it, could result in parents who continue to smoke losing custody or visitation rights they may have previously enjoyed.”
Don’t think for a moment that it can’t happen. A User Manual for CPS caseworkers printed by the U.S. Department of Health and Human Services in 2006 specifically ranks “second-hand smoke, especially for children with asthma or other lung problems” as among potential “hazards” in the home, listing second hand smoke as among environmental hazards such as loaded guns in the home within the reach of children.
“The physical problems associated with neglect may start even before an infant is born, such as when the mother has had little or no prenatal care or smoked during pregnancy,” the Manual continues on to say. In the same paragraph, the Manual explains: “exposure to indoor and outdoor air pollutants, such as ozone, particulate matter, and sulphur dioxide, can cause the development of asthma or increase the frequency or severity of asthma attacks,” suggesting that parents may be held as culpable for failure to protect their children against pollutants that fall within the purview of the Environmental Protection Agency.
BANZHAF AND THE CPS OBESITY CRUSADE
Returning to Banzhaf, he is every bit as influential as he is controversial. An editorial in the September 20, 2004, edition of Washington Times explains how lawsuits against tobacco companies eventually led to calls against the parents of obese children, considering them as “fair game” in custody decisions:
“Movements start with legal action,” Mr. Banzhaf said, noting that the obesity lawsuit drive had achieved more in the last few years than the first tobacco lawsuits. The tobacco suits eventually resulted in four major tobacco companies reaching a historic $246 billion legal settlement in 1998, three decades after the first suits were filed.
“We must remember that the anti-tobacco movement did not just sue the tobacco companies. We sued lots of people,” Mr. Banzhaf said. He advised his colleagues to consider suits against doctors who do not warn obese patients about their health risks.
Even parents of morbidly obese children, where it could be shown the parents did not try to protect their children from related health risks, could be fair game in custody disputes, he said. Those suits would follow the lead of ones where parents who smoked around their children lost partial or full custody.
To be sure, Banzhaf’s broad-sweeping efforts to rightsize the American waistline were met with some measure of thoughtful resistance. Enter the Center for Consumer Freedom, which described the second annual Public Health Advocacy Institute conference, during which a handout entitled Obesity Policy Report was passed around:
It wouldn’t have been a conference on obesity lawsuits without John “Sue the Bastards” Banzhaf. At last weekend’s gathering, he claimed credit for starting the movement while talking to a reporter in 2002. “We’re doing well and we’re ahead of schedule,” he said. “When lawyers see how lucrative these are they will all join on.”
In addition to the usual old-hat defendants – restaurants and large food companies – Banzhaf offered suggestions for several other targets. In true ambulance-chasing fashion, he insisted: “Let’s sue some doctors.” He also urged lawsuits against parents of obese children, saying “go after parents with TVs in their [kids'] rooms.”
This much is certain, if you give Child Protective Services a reason – any reason – to intervene in a family’s life, it will find that reason and use it to its time-moment accounting and revenue-maximizing advantage.
A source no more radical than TIME Magazine printed an article entitled “An Obese Boy Is Placed in Foster Care. Can It Help?” in its Health and Family section in November of 2011.
“An 8-year-old boy in Cleveland Heights, Ohio, was taken from his family and placed in foster care last month because his mother failed to control the third-grader’s ballooning weight. The county’s family services department considered it a form of medical neglect,” the magazine reported.
Lest you think that may be an unusual case of Child Protective Services overstepping its mandate, in a related article in TIME entitled “Should Parents Lose Custody of Their Extremely Obese Kids?” Bonnie Rochman cites Harvard pediatrics professor and “obesity expert” David Ludwig in what she describes as a “controversial commentary” published in none other than the Journal of the American Medical Association.
“One way to manage the nation’s childhood obesity crisis might be to take the most severely overweight kids away from their parents, argues Harvard pediatrics professor and obesity expert David Ludwig,” Rochman writes.
“The recommendation in the Journal of the American Medical Association to consign extremely obese kids facing life-threatening complications to foster care is eye-popping, but it’s already transpired in a handful of U.S. cases,” she explains.
The JAMA article – co-authored by Lindsey Murtagh, JD, MPH – explains that, “Even relatively mild parenting deficiencies, such as having excess junk food in the house or failing to model a physically active lifestyle, may contribute to a child’s weight problem.”
The commentary, boldly entitled “State Intervention in Life-Threatening Childhood Obesity” specifically suggests that state intervention is warranted for obese children just as it is considered appropriate for the state to intervene is so-called “failure to thrive” cases.
“In severe instances of childhood obesity, removal from the home may be justifiable, from a legal standpoint, because of imminent health risks and the parents’ chronic failure to address medical problems,” wrote Ludwig and Murtagh.
By July 2011, ABC News writers Dan Harris and Mikaela Conley reported that the topic “has quickly generated controversy, and the majority of experts contacted by ABC News disagreed with Ludwig and Murtagh’s ideas.”
They explain that “Dr. David Katz, founder of the Yale Prevention Center, said that there was no evidence that the state would do a better job of feeding children than their parents.”
They explained also that “Dr. David Orentlicher, co-director of Hall Center for Law and Health at Indiana University of School Law, also disagreed, saying that based on past instances, child protective service agencies might be far too quick to place overweight children in foster care.”
Harris and Conley continue on to illustrate just how the idea the overweight children needed coercive intervention caught on among child welfare agencies with a case drawn from real life, rather than the halls of academia:
A family in Albuquerque, N.M., disagreed with the idea, based not on any medical expertise but on a painful personal experience that they say tore the family apart more than a decade ago.
In a case that shocked many people across the country, 3-year-old Anamarie Regino, weighing 90 pounds, was taken from her outraged parents by government officials and placed in foster care.
“Literally, it was two months of hell. It seemed like the longest two months of my life,” mother Adela Martinez said.
As it turned out, it was two unnecessary months of hell. Anamarie didn’t improve at all in foster care, and she was returned to her parents. The young girl was later diagnosed with a genetic predisposition.
“They say it’s for the well-being of the child, but it did more damage that any money or therapy could ever to do to fix it,” Martinez said.
When told of the Regino case, Ludwig reportedly said, “Well, state intervention is no guarantee of a good outcome, but to do nothing is also not an answer.”
That was not the only case, as Marilisa Kinney Sachteleben explained in an article on Yahoo! News published in November 2011, and entitled “Obese Ohio Child Taken from Parents, Placed in Foster Care.” As Sachteleben explains it:
An obese 8-year-old boy from Cleveland Heights, Ohio, has been removed from his parents’ home for medical neglect, according to The Cleveland Plain Dealer. The child weighs more than 200 pounds; his mother has been charged with endangering her son’s health. This is Ohio’s first case of child protective services removing a child for being overweight.
“The practice of removing obese children from their homes and placing them in foster came to the forefront in July when a Harvard University doctor recommended it,” the article explains citing Dr. Ludwig. The article also encapsulates the Regina case:
A decade ago, Anamarie Regino was a 90-pound 3-year-old. She was taken from her family. Now 14, Regino told The Cleveland Plain Dealer it did no good and caused her and her parents severe emotional problems. She was found to have a genetic predisposition to weight problem. The foster parents of the Cleveland Heights boy are having trouble getting his weight down, too.
Given the difficulties the foster parents had in both of these casers, it would appear that child protective services took the wrong children.
In commenting on the case of the 8-year-old boy from Cleveland Heights, nationally syndicated columnist Ruben Navarrette Jr. asked rhetorically on CNN: “Is child obesity a form of child neglect?” In answering his own question,
Of course not. That’s ridiculous. But, it seems, the ridiculous is now standard operating procedure in the upside down world of the Department of Children and Family Services of Cuyahoga County in Ohio. In a case making headlines around the country, the agency recently decided that a Cleveland third grader should be taken from his mother and placed in foster care.
Navarrette continued on to note: “The people who run these social service agencies always claim that they’re acting in the best interests of the child. Yet, in this case, that could be a tough sell. In the absence of actual abuse, taking a child away from his mother and placing him in foster care is not in anyone’s best interests – not the child, not the mother and not the rest of society which will have to deal with the emotional fallout for years to come.”
By the time ABC News, TIME Magazine, Yahoo! News, and CNN reported on such cases, it was already an old story. Armed with its mandate – to protect overweight children from the evils of their junk food infested homes – CPS had wasted no time in “rescuing” many overweight children into state care. Ron Bamett reported in the July 23, 2009, edition of USA Today that: “State courts in Texas, Pennsylvania, New York, New Mexico, Indiana and California have grappled with the question in recent years.”
That publicity wasn’t quite enough to derail the expansion of childhood obesity as a child protective matter. Shauneen M. Garrahan and Andrew W. Eichner produced an article by the name of “Tipping the Scale: A Place for Childhood Obesity in the Evolving Legal Framework of Child Abuse and Neglect” that was actually published by the Yale Journal of Health Policy, Law, and Ethics, in which they assert:
Because parents directly influence their children’s eating habits and weight in a variety of ways, the legal system must recognize parental accountability for childhood obesity. One such influence involves the type of food that parents choose to have in the house. Not surprisingly, children are more likely to be obese if they live in a household where prepared food items high in fat and sodium are frequently served.29 One study also showed that between 1977 and 1998, parents substantially increased the size of portions they served to their children. 30 Generally speaking, today’s children consume approximately 350 more calories per day than children did in the 1970s.3 1 This problematic trend increases the risk of childhood obesity.
They continue on to explain that: “The inactivity of parents may also negatively inspire children to behave in unproductive and unhealthy ways by influencing children to choose a sedentary lifestyle early on. Because these parental factors are controllable, the courts should carefully consider these influences when allocating responsibility in cases of morbid childhood obesity.”
In fairness to the authors, Garrahan and Eichner encourage child protection agencies to only intervene in cases of morbid obesity, and they seek to explain the differences between childhood obesity that is attributable to metabolism or other factors outside of parental control, as distinguished against those that are within the realm of parental control.
But isn’t making that distinction asking too much of caseworkers who have historically taken far-too-many children out of safe and loving homes while leaving children like Elisa Izquierdo, Phoenix Sinclair, and Peter Connelly behind?
In the November 2013 edition of Trauma, Violence, & Abuse, Deborah J. Jones and colleagues present a thought-provoking article entitled Should Child Obesity be an Issue for Child Protective Services? A Call for More Research on this Critical Public Health Issue, in which they raise the issue of whther child protective services provides an appropriate model for the delivery of services concerning childhood obesity.
“The relatively slow progress toward the prevention and treatment of childhood obesity,” they explain, “has prompted leaders in both academic and practice sectors to advocate for what may be considered a radical intervention approach, to conceptualize extreme child obesity as an issue of child maltreatment.”
They note also that while the policy of having child protective services intervene in such cases is already being implemented in some states, “surprisingly little research has been conducted to inform policies or practices consistent with this recommendation,” concluding therefrom that more research in the area is needed. Relatively little data are currently available to support or refute the merits of CPS involvement, recommendations for future research that would better inform public policy and decision making regarding this and other intervention strategies, they explain.
In the final analysis, relatively little data serves to support the safety, effectiveness, or efficiency of any CPS interventions; yet the evidence continues to mount daily regarding just how deadly they often turn out to be.1
It was, after all, child protective services that rescued Alexandria Hill from her home on grounds no more substatial but that her parents smoked pot to unwind as she slept. Young Alexandria died in foster care, and her foster mother was eventually charged with capital murder. The caseworkers that rescued her, however, were not charged as accesories.
1. For a discussion of this phenomenon, see my article New Study: Child Protective Services as Ineffective as it is Deadly, October 7, 2010 (examining two studies that showed no improvements in family functioning or child safety following CPS interventions in the context of several recent child deaths in foster care).
PRLog Press Release, “Smokers Could Lose Child Custody Following New Report: Third-Hand Tobacco Smoke Deadly,” John Banzhaf, (February 12, 2014).
Jennifer Jordan, “Protective Supervision Lifted for Obese Child,” FOX 8 News, Cleveland, (May 10, 2012).
Lindsey Murtagh, JD, MPH; David S. Ludwig, MD, PhD, “State Intervention in Life-Threatening Childhood Obesity,” (2011) Journal of the American Medical Association, Vol 306, No. 2. pp 206-207.
Editorial, “Anti-obesity group mulls swell in suits,” Washington Times, (September 19, 2004).
Editorial, “Lawyers see obese U.S. ripe for fat lawsuits,” (September 20, 2004).
Ron Bamett, “S.C. Case Looks on Child Obesity as Child Abuse. But Is It?” USA Today, (July 23, 2009).
Rachel Dissell, “County places obese Cleveland Heights child in foster care,” The Plain Dealer, (November 26, 2011).
Kim Carollo, Is Childhood Obesity a Sign of Child Abuse? ABC News, (August 23, 2010).
Marilisa Kinney Sachteleben, “Obese Ohio Child Taken from Parents, Placed in Foster Care,” Yahoo! News, (November 28, 2011).
Ruben Navarrette Jr., “Taking obese child from mom is wrong,” CNN.com, (December 2, 2011).
Shauneen M.Garrahan and Andrew W. Eichner (2012) “Tipping the Scale: A Place for Childhood Obesity in the Evolving Legal Framework of Child Abuse and Neglect,” Yale Journal of Health Policy, Law, and Ethics: Vol. 12: Iss. 2, Article 3.
Martin Binks, PhD, “The Debate Surrounding Removal of Severely Obese Children from the Home: An Editorial Commentary,” The Obesity Society, (August 2011).
Kris Betts, “Father of foster child who died speaks to KVUE,” KVUE ABC News, (August 1, 2013).
I find it somewhat reassuring to see a Court of Appeal get it right when it comes to the issue of coercive intervention into family life. Such was the case in a ruling issued by the Indiana Supreme Court in In the Matter of S.D., Alleged to be a Child in Need of Services; J.B. v. Indiana Department of Child Services. The court issued its ruling on February 12 of this year.
The case pitted a mother who was determined to rely on her own efforts to provide for her children with the aid of her family against a department of social services that was determined to foist its services on her through the coercive intervention of the court by means of a CHINS adjudication.
For those unfamiliar with CHINS cases, the Indian Court of Appeals provides this description, drawn verbatim from the ruling with emphasis as provided in the original:
Child in need of services (CHINS) cases aim to help families in crisis – to protect children, not punish parents. Our focus, then, is on the best interests of the child and whether the child needs help that the parent will not be willing or able to provide – not whether the parent is somehow “guilty” or “deserves” a CHINS adjudication. But that help comes not by invitation, but compulsion – imposing the court’s “coercive intervention” into family life. And a CHINS adjudication may have long-lasting collateral consequences for the family. The intrusion of a CHINS judgment, then, must be reserved for families who cannot meet those needs without coercion – not those who merely have difficulty doing so.
Here, the evidence reflects that Mother had difficulty meeting the demands of a situation that would test the mettle of any parent – but not that she would be unable to correct her one lingering issue without the “coercive intervention of the court.” DCS’s desire to help this struggling family was understandable, but the facts simply do not justify subjecting this family to State compulsion. We therefore reverse the trial court.
“This CHINS case stems from Mother’s struggles in abruptly relocating to a new city to meet the challenges of a toddler’s serious medical crisis, while still providing for four other children,” the Court explained.
On March 26, 2012, the Mother took her then two-year-old child, S.D., to an emergency room in Gary because of rapid respiration. A series of hospital transfers and operations ensued.
S.D.’s four siblings remained with relatives in Gary while the Mother remained at the hospital with S.D. During the siblings’ spring break, the Mother “abandoned the family’s rental home and belongings in Gary – leaving everything behind and moving the whole family to Indianapolis to be near S.D.”
For several weeks, the family’s housing was transient, and the Mother struggled to meet the whole family’s needs. At one point – perhaps believing that departments of social services are helping institutions – she consented to the temporary placement of the four siblings into DCS’ care so that she could focus on S.D.’s treatment. What happened next would come as no surprise to family advocates.1
Accordingly, DCS took custody of the children in early May and initiated CHINS proceedings over all five of them, based on S.D.’s special medical needs and Mother’s lack of steady housing and other needs for the children.
The Mother managed to have the four siblings returned to her, and a CHINS finding regarding them reversed, however judge Marilyn Moores of the Marion Superior Court, Juvenile Division, found S.D. to be “in need of services” by virtue of the medical condition.
THE HELPING HAND
As the Court explains it, the Mother was somewhat uncooperative. “She refused to apply for a Postal Service job DCS identified, choosing instead to pursue a hospitality and catering position (yet failing to obtain the ID she needed for her application). Moreover, she rejected DCS’s urging to apply for rent assistance from the township trustee – and even cancelled an appointment DCS had made on her behalf for that purpose – because she had instead paid her bills with support from friends and family,” the Court explained.2
Significantly, the Court saw through the ruse of the helping hand offered by the department – perhaps recognizing just how wide that safety net of unwanted aid may have grown over time. As the Court explained it:
we believe that any reasonable view of those facts must also account for Mother’s larger situation – an impoverished single mother of five, who was forced to abruptly uproot and relocate to a new city to tend to her toddler’s life-threatening illness, while continuing to provide for her other children. Either the relocation or the medical crisis, standing alone, would seriously strain any parent. Yet even though some of Mother’s decisions were questionable, we cannot say that she was less effective under duress than any other similarly situated parent of a special-needs child—and we are unwilling to say that every special – needs child of a low-income parent is necessarily “in need of services.”
HELPING OR HINDERING?
Most significant is that the Court of Appeal was able to recognize that the department of social services may have hindered as much as it had claimed to have helped the Mother, in this particular instance. As the Court explained, “Mother’s most significant failure – to complete the home-care simulation – appears as much a product of DCS’s intervention as it is a sign of her need for that intervention. Mother’s initial plan had been for Grandmother to serve as the secondary caregiver, and it was only because of DCS’s disapproval that Mother had to go “back to the drawing board” to recruit someone else to fill that role. She did not do so until a few days before the fact-finding hearing, but did so nevertheless. In sum, she was still one step away from S.D. returning home – but only one step, and one in which the delay was at least partly a matter of DCS’s own doing.”
The Court continued on to say: “And though the State’s intervention enabled some of her progress, such as the ability to renovate the house while the children were out of her care, none of the State’s actions compelled her accomplishments. Though the evidence shows she had difficulty completing the last step of medical training, we cannot say she was unwilling or unable to do so without the court’s compulsion, and so the State’s coercive intervention into the family cannot stand.”
After the Court of Appeal granted transfer of this case, DCS moved to dismiss the appeal, alleging it was moot because S.D. has been returned to Mother’s care, the CHINS case has been closed, and no effective relief could be granted. The Court notes that “Mother disagrees, emphasizing that a CHINS finding can have harmful collateral consequences for the parent, and that reversal would grant Mother real relief from those consequences. We agree with Mother.”
The Court noted that “the State may terminate parental rights if a child has been adjudicated CHINS on two prior occasions, without proving either that the conditions resulting in a child’s removal will not be remedied or that continuing the parent-child relationship threatens the child’s well-being. And a prior CHINS finding may have adverse job consequences as well, such as precluding Mother from employment with any DCS contractor.”
The court also noted that a CHINS finding may preclude the Mother from become a licensed foster parent. As the finding may have held long-lasting consequences, the Court took the case on, ultimately concluding:
Reversal cannot change the efforts Mother expended in complying with the CHINS case, but it still affords her meaningful relief by lifting those collateral burdens. We therefore decline to find the case moot.
By the time of the disposition, the Mother was no longer in need of the department’s help, according to the lower court’s ruling, thus: “In view of that judgment, the remaining evidence fails to show that Mother was likely to need the court’s coercive intervention to complete that final item – and when that coercion is not necessary, the State may not intrude into a family’s life.”
Kenneth Wooden. Executive Director of the National Coalition for Children’s Justice, testified before a congressional committee during the mid-1970s saying that he had traveled the country for some three years, taking an inventory of juvenile detention facilities, investigating conditions in residential child care institutions, including county jails and lock-ups, juvenile correctional facilities and institutions for the emotionally disturbed. Wooden explained his findings to the committee in great detail:
One of the surprises which I encountered in my investigation was the large number of youngsters locked up and being denied their basic rights even though they had committed no crime. It has been my experience that there is little difference in the background and characteristics of these children regardless of whether they have been labelled “dependent,” “neglected,” “status offender,” “CHINS” (Children in Need of Supervision), or “emotionally disturbed.” There is some evidence that the number of youngsters labeled “neglected and dependent” warehoused in large institutions is declining but the numbers can be misleading. It is my impression that a shell game is being played with the labeling process, and that dependent children, relabeled “disturbed” or “hard to place,” are being shuttled off to private, often profit-making institutions in ever greater numbers. Instead of orphanages, we now have so-called “treatment centers”–a “growth industry” which feeds on unwanted children just as the nursing home business depends for its existence on large numbers of the unwanted elderly. And, as is the case with the elderly, the systematic neglect and maltreatment of children in these facilities is being subsidized by the federal government.
The Indiana case presents a welcome one among a sea of adverse legal determinations by courts against families for little more than the expression of the desire to face challenging circumstances free of the imposition of social programs in which the parents do not wish to participate.
That the CHINS disposition is little more than a back door for departments to gain entry into the lives of families in cases in which they are unable to produce “abuse” or “neglect” disposition – even under the broad definitions that they are given – is beyond serious debate. Indeed, Indiana’s Courts have themselves issued a number of adverse ruling based, at least in part, on the parents lack of willingness to “cooperate” with forced offers of “help” and “assistance” from the department of social services.3
1. There has historically been a tension between “family advocates” and departments of social services. A comprehensive study conducted by the Children’s Defense Fund identified “a pervasive, implicit anti-family bias” shaping decisions at all decision points in the child welfare system. For a discussion of the Children’s Defense Fund report see the dissent of Judge Spaeth in In Re Kunkle, 265 Pa.Super. 605 , 402 A.2d 1037 (1979). See also the testimony of Jane Knitzer, Children’s Defense Fund, Amendments to Social Services, Foster Care, and Child Welfare Programs, Subcommittee on Public Assistance and Unemployment Compensation, Committee on Ways and Means, U.S. House of Representatives, March 22 and 27, 1979 (describing “an antifamily bias that pervades the policies and practices of the child welfare system”). The CDF study devoted considerable attention to courses of action that “advocates” should take in order to reform the child welfare system, however a meaningful, effective and organized coalition of such family advocates has yet to materialize.
2. It is well beyond dispute that child welfare agencies loathe “uncooperative” parents. See for example Georgia’s Social Services Manual, Child Protective Services, Chapter 2100, Section III, 2104.20, under the heading “Family Refuses to Cooperate” (describing actions to take including obtaining a court order to gain access to a home for purposes of conducting an investigation); Katherine C. Pearson, Cooperate or We’ll Take Your Child: The Parents’ Fictional Voluntary Separation Decision and a Proposal for Change, 65 Tennessee Law Review (1998); Amy Sinden, Why Won’t Mom Cooperate: A Critique of Informality in Child Welfare Proceedings, 11 Yale J.L. & Feminism 339 (1999) (emphasizing the key role that “cooperation” plays in child welfare decision making). See also Nicholson v. Williams, 203 F. Supp. 2d 153, 215 (E.D.N.Y. 2002) (Defendants admitted that some child removals “are never brought before a court because mothers will usually agree to attend whatever services ACS demands once their children have been in foster care for a few days”).
3. Indiana Courts have frequently upheld terminations of parental rights with parental lack of cooperation as among the considerations. See Jackson v. Madison Cnty. Dep’t of Family & Children, 690 N.E.2d 792, 793 (Ind. Ct. App. 1998) (mother “was uncooperative during her psychological examination and unrealistically portrayed her herself as extremely virtuous”); Carrera v. Allen County Office of Family and Children, 758 N.E.2d 592 (Ind.Ct.App. 2001) (upholding termination where mother “was uncooperative in accepting assistance in obtaining employment”); Prince v. Dep’t of Child Servs., 861 N.E.2d 1223, 1230 (Ind. Ct. App. 2007) (“Failure to cooperate with those providing services coupled with failure to improve the unacceptable home conditions has been held to support a finding that there is a reasonable probability that the conditions that led to the children’s removal will not be remedied”).
It took some doing to find a copy of the report by the United Nations Committee on the Rights of the Child that the media has been reporting on over the last several hours. I have obtained the advance unedited version of Concluding observations on the second periodic report of the Holy See, and it does make for an interesting read.
Regarding the Magdalene Laundries in Ireland, drawn directly from the report:
Torture and other cruel or degrading treatment or punishment
37. The Committee is concerned that the Holy See has not taken the necessary measures to protect and ensure justice for girls arbitrarily placed by their families, State institutions and churches in the Magdalene laundries of Ireland run by four congregations of Catholic Sisters until 1996. The Committee is particularly concerned that:
(a) Girls placed in these institutions were forced to work in slavery like conditions and were often subject to inhuman, cruel and degrading treatment as well as to physical and sexual abuse;
(b) Girls were deprived of their identity, of education and often of food and essential medicines and were imposed with an obligation of silence and prohibited from having any contact with the outside world;
(c) Unmarried girls who gave birth before entering or while incarcerated in the laundries had their babies forcibly removed from them; and
(d) Although the four Catholic congregations concerned function under the authority of the Holy See, no action has been taken to investigate the conduct of the sisters who ran the laundries and to cooperate with law enforcement authorities in holding accountable those who were responsible for the abuse as well as all those who organised and knowingly profited from the girls’ unpaid work.
The report encourages the Holy See to: “Conduct an internal investigation into the conduct of religious personnel working in the Magdalene laundries in Ireland as well as in all countries where this system was in place, and ensure that all those responsible for the offences be sanctioned and reported to national judicial authorities for prosecution purposes.”
Regarding the sexual abuse of children, the report notes: “Well-known child sexual abusers have been transferred from parish to parish or to other countries in an attempt to cover-up such crimes, a practice documented by numerous national commissions of inquiry. The practice of offenders’ mobility, which has allowed many priests to remain in contact with children and to continue to abuse them, still places children in many countries at high risk of sexual abuse, as dozens of child sexual offenders are reported to be still in contact with children.”
Regarding children deprived of a family environment:
The Committee urges the Holy See to properly investigate all allegations of children and adolescents being separated from their families by means of psychological manipulation and ensure that those responsible for manipulating adolescents be held accountable and cease their activities.
Regarding the institutionalisation of children: “The Committee is concerned that institutionalisation of children is still widespread in Catholic church run organisations and that family type alternatives are still not given priority as shown by the opening of new institutions in many countries. The Committee is also concerned that the Holy See has not adopted guidelines on the placement of children in Catholic alternative care institutions and for monitoring their situation and still has no policy for the de-institutionalisation of children placed in Catholic Church run organisations.”
With multiple Inquiries running, including the Special Commission of Inquiry: Child abuse allegations in Catholic Diocese of Maitland-Newcastle, the Inquiry into the Handling of Child Abuse by Religious and Other Organisations, the Royal Commission into Institutional Responses to Child Sexual Abuse, and The Historical Institutional Abuse Inquiry, it is sure to be an interesting year.
At the risk of being charged with Catholic-bashing, I hasten to add that while it may appear that Catholic-run facilities are more prone to the sexual abuse of children, this is not necessarily true. It is that there are so very many such facilities operated by the Catholic church that makes it seems so. (For example, for many years, the Catholic church had a near-complete monopoly on foster care services in New York City.) Who would know? Insurance companies that insure churches do not charge Catholic churches more for liability insurance than they do any other denominations.
The Salvation Army has been taking a fair beating in one of these inquiries. They actually issued yet another apology for abusing children in care. To be sure, there are many secular agencies that have poor track records when it comes to the caretaking of foster children out there as well.