Thursday, October 12, 2006
"As the summit talks between the ruling seven party alliance and the Maoists concentrated mainly on political issues, child rights organizations have submitted a memorandum to the coordinator of the Peace Committee, Ram Chandra Paudel, urging him to consider the issue of child rights in the summit talks slated for Thursday. The memorandum has appealed to the government, political parties and the Maoists to include children's issues in the peace process to maintain social harmony, rehabilitate the children and reintegrate and reunite them with their families and communities. Representatives of the Institute of Human Rights Communication, Nepal, Save the Children Norway, National Coalition for Children as Zones of Peace, Women Security Pressure Group, INSEC, among other organizations submitted the memorandum demanding inclusion of children's issues in the peace talks. Keeping in mind the international recognition that children are zone of peace, both the government and the political parties should declare that children below the age of 18 years are banned in armed activities, the memorandum said." nepalnews.com Link to Article (last visited 10-12-06 NVS)
"The release, protection and re-integration of child soldiers into society should be the first priority of the Democratic Republic of Congo's new government, said Amnesty International on Wednesday. The London-based human rights group criticised the interim power-sharing administration and said its disarmament, demobilisation and reintegration (DDR) programme was failing to meet traumatised youngsters' needs. It estimated that at least 11 000 children were either still with armed groups or unaccounted for more than two years after the DDR programme was launched to release and re-integrate child soldiers back into civilian life." News24.com Link to Article (last visited 10-12-06 NVS)
"The recruitment of child soldiers is one of the most heinous war crimes, and among the most forgotten. Perhaps a quarter-million children - most in their teens but some as young as 7 - are forced to serve in government or insurgent armies in 20 countries around the world. Not only are they ordered to kill and torture, they often become victims of physical and sexual abuse. When they do return to civilian life, they are walking ghosts - damaged, uneducated pariahs.
But now something has happened that may force guerrilla leaders and government officials who recruit children to think again. The International Criminal Court, established to bring the most serious international criminals to justice, is beginning its first prosecution - of a defendant charged with the use of child soldiers. He is Thomas Lubanga Dyilo, leader of a Congolese militia responsible for ethnic massacres, torture and rapes in the east of the country." By New York Times, Herald Tribune, Link to Article (last visited 10-12-06 NVS)
Wednesday, October 11, 2006
Case Law Development: Father Trying to Make a Federal Case Out of His Child Support Orders Faces Immunities, and State Action Doctine Bars
Ordinarily when a federal court hears a case that constitutes, in essence, an attempt to collaterally attack a family law order, it invokes abstention doctrines. (See last year's Family Law Prof Blog post on the subject) In a recent case before the United States District Court for the District of Delaware, the court instead analyzed each of a father's numerous causes of action under federal statutes (civil rights, RICO, etc.) and pendent state-law claims (intentional infliction of emotional distress) brought against state judges, child support enforcement attorneys, court-appointed mediators, judicial administrators, the governor and his wife's attorney (I may have missed some there but you get the picture).
The opinion is a short course in immunities (with the court dismissing numerous defendants under doctrines of sovereign immunity and judicial and quasi-judicial, and prosecutorial immunity). The analysis of immunity of court-appointed mediators may be especially interesting to some readers. I found the opinion striking for its extraordinary degree of respectful consideration given to the pro se litigant, as the court carefully examined and then dismissed each of the plaintiff's claims, without any perjorative characterizations of his attempts to seek the court's intervention.
Joynes v. Meconi, 2006 US Dist LEXIS 71296 (September 30, 2006)
Opinion on web (last visited October 8, 2006 bgf)
The Supreme Court on Tuesday turned aside the case of Sandra Cano, one of the women behind the 1973 high court decision legalizing abortion, who had sought to reverse the ruling. Cano said she never wanted an abortion and that her difficult early life resulted in her becoming the anonymous plaintiff in Doe v. Bolton, the lesser-known case that the justices ruled on the same day as the landmark Roe v. Wade.
Read news reports on the court's decision from Fox News (last visited October 11, 2006 bgf)
Case Law Development: Judge Posner on Constituitonality of State Child Protection Agency Informal Resolutions
Judge Posner applies his usual direct and sometimes ascerbic pen to an opinion reluctantly affirming a preliminary injunction in a 10-year class action suit challenging practices of the Illinois child-welfare agency. The action alleged that the state agency's practice of offering "safety plans" to parents in lieu of more formal action of removing a child from the home or instituting other formal abuse or neglect proceedings violated parental rights protected by the Fourteenth Amendment. The trial court had ordered a limited preliminary injunction in the case, which the plaintiffs appealed on the basis that it did not go far enough. Affirming the injunction, Judge Posner thought it went too far, and would have reversed the order had there been a cross appeal filed by the state. The absence of a cross appeal did not prevent him from outlining the reasons why he found the plaintiff's arguments "silly." He analogized the relationship between the state child welfare agency and parents who are unders suspicion of child abuse or neglect to that of any other opposing litigants and saw the state's offer of safety plans in lieu of formal action as akin to negotiated settlements of a tort action. While I can't buy the analogy when the balance of power is so uneven and one's child, rather than money, stands in the balance, I can't resist but excerpt several paragraphs for your consideration...
Critically, however, the decision to agree to a safety plan is optional with the parents. If they think that if they turn down the plan the state will not try to remove the child from their custody, or that if it does they will prevail in the prompt judicial hearing to which they are entitled on the propriety of the removal, they will reject the plan. The plan is thus a form of interim settlement agreement pending the outcome of the investigation, as when a plaintiff in a suit for restitution agrees not to move for immediate seizure of assets held by the defendant if the latter agrees to place them in judicial custody. It is not surprising that the safety-plan program is not embodied in a statute or formal regulation, but merely in internal directives of the Department of Children and Family Services. It imposes no obligation on anybody.
Which answers the plaintiffs' argument that the Constitution entitles parents to a hearing before they are offered the option of agreeing to such a plan. There is no right to a hearing when no substantive right has been infringed or is threatened with being infringed. The state does not force a safety plan on the parents; it merely offers it. Parents are entitled to a hearing if their parental rights are impaired, and the offer of a settlement no more impairs those rights than a prosecutor's offer to accept a guilty plea impairs the defendant's right to trial by jury.
It is true that by refusing to agree to a safety plan, as by refusing to plead guilty, a person may find himself in a worse pickle than if he had accepted it. The plan might be for the child's father to move out of the house for a week. If he refused, the state might decide to place the child in foster care, and though if it did so he could demand a judicial hearing, the judge's ruling might go against him. That is a dilemma implicit in any settlement process. If there weren't a downside to refusing to settle, there would be no settlements.
The plaintiffs are very wroth because, they say, the state sometimes offers a safety plan on the basis of "mere suspicion" of child abuse or neglect, rather than probable cause or at least reasonable suspicion. But as mere suspicion--some inarticulable hunch--is not a statutory ground for actually removing a child from his parents' custody (Illinois law requires, as we know, that the state have reason to believe that the child is in imminent danger), the parents in such a case have only to thumb their nose at the offer and the agency can do nothing but continue its investigation, which it would do anyway. The plaintiffs complain that the prospect of a hearing if the state removes a child is not adequate because the hearing will not address the details of the safety plan; it will deal exclusively with the validity of the child's removal from the home and therefore, the plaintiffs insist, is inadequate. The argument is silly; a plaintiff might as well say that a tort suit can't be settled without a hearing on the validity of the settlement. Because the safety plan is voluntary, no hearing of any kind is necessary; hearings are required for deprivations taken over objection, not for steps authorized by consent.
It adds nothing to say as the plaintiffs do that they did not really consent--that the state "coerces" agreement to safety plans by threatening to remove the child from his parents' custody unless they agree to the plan. It is not a forbidden means of "coercing" a settlement to threaten merely to enforce one's legal rights. If you sue and before judgment settle because the defendant is willing to settle on more favorable terms than you expect to obtain from pressing the suit to judgment, you've obtained a favorable settlement on the basis of an implicit threat to litigate to an outcome that would make the defendant worse off than if he settled; but you have not infringed any right of his. Coercion is objectionable--and when objectionable is more aptly described as duress or extortion--when illegal means are used to obtain a benefit.
Dupuy v. Samuels, 2006 U.S. App. LEXIS 24655 (October 3, 2006)
Opinion on web (last visited October 9, 2006 bgf)
Tuesday, October 10, 2006
"A lesbian couple from Rhode Island who won the right to marry in Massachusetts held their ceremony Sunday. After being denied a marriage license in Massachusetts, Wendy Becker and Mary Norton challenged a 1913 state law that prohibits out-of-state residents from marrying if the union would not be permitted in their home state. They argued that same-sex marriage was not specifically banned in Rhode Island. Superior Court Judge Thomas Connolly agreed last month, saying he saw no evidence of a "constitutional amendment, statute, or controlling appellate decision" making same-sex marriage illegal in Rhode Island." AP, Findlaw.com Link to Article (last visited 10-9-06 NVS)
"Kim Basinger will go to trial after pleading not guilty Wednesday to disregarding court orders concerning ex-husband Alec Baldwin's visitation rights with their daughter, a court official ordered. Court papers filed by Baldwin allege that in 2005, the Academy Award-winning actress ignored court orders by not letting her ex-husband know she would be out of town working so that he could take care of their 10-year-old daughter until she returned. On one occasion, Basinger also did not tell Baldwin their daughter, Ireland, was injured and required medical help, according to the court papers. The girl's injuries were not specified. Basinger's attorney entered the pleas on her behalf to 12 misdemeanor counts of criminal contempt. The Academy Award-winning actress faces up to 60 days in jail and a $12,000 fine if convicted of all counts." AP, CNN.com. Link to Article (last visited 10-9-06 NVS)
"A woman is taking the unusual step of trying to unadopt her 15-year-old son, saying she learned of his troubled past only after he molested two younger children. "You don't want to throw somebody away," said Helen Briggs, a longtime foster mother. "But sometimes you have to."
Briggs, 57, said she did not know that the boy had lived in five foster homes since he was 16 months old, or that he had been physically abused by his alcohol- and drug-addicted biological parents and was possibly psychotically bipolar."I did not know any of that," Briggs said. "They just told me he was hyperactive."
Virginia policy mandates that caseworkers provide "full, factual information" about a child to adoptive parents. State child welfare advocates would not comment on the case because of confidentiality rules." AP CNN.com Link to Article (last visited 10-9-06 NVS)
"Two Texas women who killed their young children in cases that drew nationwide attention have formed a friendship at a state hospital, a newspaper reports. Andrea Yates, who drowned her five children in the bathtub, and Dena Schlosser, whose baby died after she severed the girl's arms with a kitchen knife, became roommates at the North Texas State Hospital after each was found not guilty by reason of insanity." AP, Startribune.com Link to Article (last visited 10-9-06 NVS)
"John Farra, a former Winter Olympian from Caribou who trained by running up a ski slope with 80 pounds of mortar mix, won the seventh annual North American Wife Carrying Championship on Saturday at Sunday River. Farra's first-place finish earned him and his 110-pound wife Tess her weight in beer and five times her weight in cash, or $550. They also are eligible for a $1,000 reimbursement toward a trip to the world championships in Finland next July." Yahoo News, Link to Article (last visited 10-9-06 NVS)