Wednesday, October 11, 2006
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
"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)
Friday, September 22, 2006
A Maine couple accused of tying up their 19-year-old daughter, throwing her in their car and driving her out of state to try to force her to get an abortion were doing so because the baby's father is black. The daughter escaped and called police, who arrested her parents. The parents were apparently taking their daughter to New York to try to force her to get an abortion there, police said. The parents were arraigned Monday on kidnapping charges. The judge set bail at $100,000 each and ordered the Kampfs to have no contact with their daughter. They posted bail Tuesday afternoon.
Read the whole story in the New York Times (last visited Sept. 22, 2006 bgf)
Thursday, September 7, 2006
"PREMIER Alan Carpenter has promised more money and more staff in a new attempt to defuse the crisis surrounding child protection in Western Australia. The pledge comes on top of the $140 million funding boost already set aside for the embattled Department for Community Development. The move follows yesterday's revelation in The Australian that up to 900 suspected child abuse, neglect and family crisis cases were in a queue because of a lack of caseworkers. "We need to put more money in for more caseworkers. That's the first thing. I'm not waiting for the next budget," Mr Carpenter said yesterday in an exclusive interview with The Australian." The Australian - News, Link to Article (last visited 9-6-06 NVS)
"The foster parents of a 3-year-old disabled boy who died after being wrapped in packing tape for two days were indicted Wednesday on murder and kidnapping charges. Prosecutors have accused Liz and David Carroll Jr. of wrapping Marcus Fiesel in the blanket and tape and leaving him in a closet while they went to a family reunion in Kentucky in August. The boy was dead when the Carrolls returned two days later, authorities said." AP, CNN.com. Link to Article (last visited 9-6-06 NVS)
"The mother of a 3-year-old developmentally disabled child who died in foster care filed a $5 million lawsuit Tuesday against county officials, the foster parents and the agency that placed the boy. The foster parents, Liz and David Carroll Jr., are jailed on charges that include involuntary manslaughter. Prosecutors say the couple wrapped the boy in a blanket and packing tape, and left him in a closet while they went to a family reunion in August. AP, CNN.com Link to Article (last visited 9-6-06 NVS)
"Women who drink during pregnancy may be setting up their offspring for later problems, it seems. Young adults who were exposed to alcohol before they were born are at increased risk for developing an alcohol disorder, according to a report in the Archives of General Psychiatry." Reuters Health, Yahoo News Link to Article (last visited 9-6-06 NVS)
"An Austrian girl held in captivity for eight years told on Wednesday how all she could think of was how to escape but she feared that fleeing might provoke her abductor into killing her in a murder spree. For the first time since her dash to freedom two weeks ago, 18-year-old Natascha Kampusch spoke about the years of loneliness, hunger and agony that she spent in a cell beneath the garage of Wolfgang Priklopil's house near Vienna.
"I promised myself I would grow older, stronger and sturdier to be able to break free one day," Kampusch said in her first television interview, looking fragile but composed and confident despite her ordeal and the subsequent media frenzy. By Karin Strohecker, Reuters, Link to Article (last visited 9-6-06 NVS)
Wednesday, September 6, 2006
The Tennessee Court of Appeals reversed a decision transferring custody of a 4 1/2 year old child from Mother to Father. Mother had restricted Father's visitation with child after she received opinions from two professionals that the child had likely been sexually abused by father. The trial court, however, interviewed the four year old, who maintained that she had lied about the abuse, and based his decision "almost entirely" on that interview. Despite two different experts who testified that the child had likely been abused, the trial court stated, "There's nothing that has been said by anybody that is going to overcome what that child said to me." Thus, finding that no abuse had occurred, the court transferred custody to Father based on Mother's interference with visitation.
The court of appeals reversed, finding that "the evidence simply does not support the findings by the trial court that are pivotal to the issues of custody, visitation, contempt and attorney fees."
In re C.A.R., 2006 Tenn. App. LEXIS 583 (August 30, 2006)
Opinion on web (last visited Sept. 5, 2006 bgf)
Tuesday, August 29, 2006
"The Connecticut Supreme Court on Monday overturned a mother's conviction on charges that she contributed to her 12-year-old son's suicide by creating an unsafe and unhealthy home. Judith Scruggs of Meriden was convicted of risk of injury to a minor in 2003, a year and a half after her son, J. Daniel, hanged himself with a necktie in his closet. Legal experts said it was thought to be the first time a parent had been convicted over a child's suicide.
Scruggs said her son killed himself because he was bullied at school, and she filed a federal lawsuit against Meriden school officials contending they should have stopped it. The case inspired a new state law requiring schools to report bullies to authorities, and many school districts revamped bullying policies.
In court three years ago, authorities testified that the Scruggs home was so dirty that the medical examiner had to climb over heaps of debris to get to the boy's body. Scruggs' trial defense attorney countered that no psychologist or counselor ever testified that her home was a factor in the boy's death, but Scruggs was convicted and sentenced to probation.
In Monday's ruling, Justice William Sullivan wrote that the law used to convict Scruggs was unconstitutionally vague and ordered the trial court to acquit her." AP, CNN.com Link to Article (last visited 8-28-06 NVS)
Thursday, August 17, 2006
Experts believe that frequent visits from caseworkers are key to keeping children safe in foster care. As a result of lawsuits, consent decrees, and collaborations with child advocacy groups, forty-three states have adopted standards calling for monthly caseworker visits to children in foster care. However, twenty-seven states have been cited as needing imporvement in this area. Information from Department of Health and Human Services, Office of Inspector General, State Standards and Capacity to Track Frequency of Caseworker Visits with Children in Foster Care, (2005) Link to Report (last visited 8-16-06 NVS)
"Matthew Radke tried to get someone to pay attention to the bruises on his 18-month-old son, Makaio, for three months. First police, then a doctor, then a court-appointed advocate saw bruises on the toddler. Three times, Freeborn County child-protection workers visited the Albert Lea home where Makaio lived with his mother and two friends of hers. Three times, Peggy Radke's explanations satisfied the caseworkers. On April 21, 2001, less than 24 hours after the last visit, Makaio was found dead — his ribs broken, his lungs punctured and his body nearly covered with bruises. He had been left alone for 12 hours with 27-year-old Paul Gutierrez, who is now serving life in prison without parole for the boy's death.
But Matthew Radke also blames the county. In what could turn out to be a landmark case, Radke is suing Freeborn County, claiming it failed to stop the abuse. Last year, the suit was given a green light by the Minnesota Supreme Court — the first time a citizen has been allowed to sue a county under the state's child-protection statute." By Rick Links, Pioneer Press Link to Article (last visited 8-16-06 NVS)
Read Radke v. County of Freeborn, 694 N.W.2d 788 (Minn. 2005) Link to Westlaw (last visited 8-16-06 NVS)
"When the boyfriend moved in, the bruises began. Kailyn Montgomery's mother was alarmed. Every few days, new bruises appeared on Lindsey Ostler's 2-year-old. Ostler took her daughter to a clinic and then a hospital, triggering an investigation. Ramsey County authorities put the Maplewood girl in protective foster care until her injuries healed, then sent her home. Two months later, 18-year-old Kyle Kelbel beat Kailyn to death.
That was December 2000. The murder made Kailyn one of at least 13 children since 1999 killed by their parents' companions, according to the Minnesota Department of Human Services. Her case illustrates what some say is a growing problem — desperate young women entrusting their children to men in situations that make them more likely to be abused." By Rick Links, Pioneer Press Link to Article (last visited 8-16-06 NVS)
Tuesday, August 15, 2006
"A task force looking at ways to more effectively curb child abuse and neglect in Arkansas heard Friday that more and better educated case workers are needed in the field. Victor Vieth, director of the American Prosecutors Research Institute's National Center for Prosecution of Child Abuse, said young social workers are too often thrown into investigating difficult, often horrific child abuse cases with little or no real-life training. One goal, Vieth said, should be to expand college and university programs to include courses on abuse and neglect, which he said would give students important information before they hit the streets." By Rob Moritz, Arkansas News Bureau Link to Article (last visited 8-14-06 NVS)
Friday, August 11, 2006
A father and four guards at a juvenile detention center were acquitted Thursday of breaking the law by taking the man's teenage son on a frightening visit to the lockup in hopes of scaring him straight.''I don't think what you did rises to criminal conduct,'' Judge David Cashman said in acquitting the five men on charges that included conspiracy, child endangerment and unlawful restraint. ''Stupid, maybe. Immature. But not criminal.'' Anthony Donald, 39, of Penn Hills, was charged for taking his son Anthony Jr., then 13, to Shuman Juvenile Detention Center in 2005 after the boy got in trouble at school. The father knew several guards at the Pittsburgh center. In a one-hour visit, the boy was beaten and yelled at, then forced to partially strip and clean a sink with a toothbrush, authorities said.
Read the New York Times story (last visited August 10, 2006 bgf)
Tuesday, August 8, 2006
"Taking a page out of the US military's handbook, parents in China have printed up playing cards with photos of their missing children in an effort to find them, state press reported.
The first batch of 10,000 playing cards with photos of 27 missing children were printed this month in the eastern province of Jiangsu, according to Xinhua news agency. Families of the missing children each paid 600 yuan (75 dollars) to have their child's photo placed on the cards, Shen Hao, the organizer of the project, told Xinhua. Telephone numbers of people who can be contacted if someone recognizes the child are placed under each photo." AFP, Yahoo News Link to Article (last visited 8-7-06 NVS)
Monday, August 7, 2006
Case Law Development: Father's Attempted Murder of Mother in Presence of Children Sufficient Basis for Dependency Action Against Father
The Florida Court of Appeals has reversed a trial court's dismissal of a dependency petition in an action based on Father's attempted murder of Mother, which the children witnessed. The case presents yet another context for asking what degree of decision-making should be allocated to victims of domestic violence in protecting themselves and their children?
Mother had obtained an ex parte protection order against Father, after which he attacked her in the home with a hammer. Mother was hospitalized and the children were taken into custody of the Department of Children and Families. Mother thereafter obtained a permanent injunction against Father's contact with either her or the children and custody was returned to her. DCF filed a dependency petition against Father. Mother had requested that the action be dismissed. The trial court dismissed the petition on the basis that there had been no expert testimony regarding the emotional harm to the children from witnessing the attack and no expert testimony regarding a cycle of violence to support a threat of future harm. The trial court reasoned that a dependency action would provide no greater protectionf or the children than was already provided by the permanent injunction in place.
The Court of Appeals reversed, holding that "It is unnecessary to present evidence of a "cycle" of domestic violence committed in front of the children in every case to sustain a finding of dependency.... a single act of domestic violence in front of the children, if it is sufficiently horrific, as here, is adequate." Further the court found that the permanent injunction did not provide as much protection as would a dependency action:
Ample grounds exist to base a finding of dependency regarding the father as to these children based on both abuse and prospective abuse. A dependency adjudication against the father would presumably bar him from contact with the children, as does the permanent injunction, but it could also require him to attend domestic violence and anger management programs and address the basic causes of the problems which have brought him to this point in his life and that of his children.
One judge dissented, stating:
I do not see that oversight by the Department can afford the mother any realistic protection from her homicidal husband beyond that which she has already procured from the court, i.e., a permanent injunction. The prospect of additional protection via "anger management" counseling strikes me as naive. There is no reason to impose the intrusions of the Department upon the mother's life against her wishes. Based upon the record before us, she is blameless, and the lower court has so determined.
Morcroft v. J.H., 2006 Fla. App. LEXIS 13040 (August 4, 2006)
Opinion on the web (last visited August 6, 2006 bgf)
Friday, August 4, 2006
"A man accused of sexually assaulting nine boys with physical or mental disabilities told a judge that having sex with children is a sacred ritual protected by civil rights laws. Phillip Distasio, who said he is the leader of a church called Arcadian Fields Ministries, represented himself at his pretrial hearing Wednesday. He is charged with 74 counts including rape, pandering obscenity to minors and corrupting another with drugs."I'm a pedophile. I've been a pedophile for 20 years," he said in Cuyahoga County Common Pleas Court Wednesday. "The only reason I'm charged with rape is that no one believes a child can consent to sex. The role of my ministry is to get these cases out of the courtrooms."" AP, FindLaw Link to Article (last visited 7-3-06 NVS)
Sunday, July 30, 2006
The Georgia Court of Appeals reversed a trial court's denial of summary judgment to a psychologist, in a claim based on the psychologist's failure to report suspected child abuse. Mother and Father, following their divorce, sought postdivorce parent coordinating and, after Mother made allegations that Father had sexually abused their daughter, the coordinator referred the daughter to the defendant in this case for evaluation and therapy. The child's therapist did not report any suspected sexual abuse and, later, when the child's pediatrician made such a report, the Mother sued the therapist for medical malpractice on the basis of the therapist's failure to comply with Georgia's mandatory reporting statute.
The court held that summary judgment should have been granted to the therapist. Rejecting the cases from other jurisdictions suggesting that a private cause of action based on reporting statutes should be available, the concluded that "there may well be a moral duty to report child abuse, if it is reasonably suspected. The legal duty to report, however, is imposed in Georgia by statute, and ... this statute does not give rise to a private cause of action for damages."
McGarrah v. Posig, 2006 Ga. App. LEXIS 954 (July 28, 2006) bgf
Wednesday, July 26, 2006
"In a dramatic turnaround from her first murder trial, Andrea Yates was found not guilty by reason of insanity Wednesday in the drowning of her children in the bathtub. The 42-year-old woman will be committed to a state mental hospital and held until she is no longer deemed a threat. If she had been convicted of murder, she would have been sentenced to life in prison. Yates stared wide-eyed as the verdict was read, then bowed her head and wept quietly. Her relatives also shed tears, and the children's father, Rusty Yates, muttered, "Wow!" as he, too, cried." By Angela K. Brown, AP, Yahoo News Link to Article (last visited 6-26-06 NVS)
Some jurors in Andrea Yates' capital murder retrial struggled with the wording of the verdict during deliberations, wanting to find her both guilty of drowning her children and insane, the panel foreman said. The jury found her innocent by reason of insanity Wednesday, after nearly 13 hours spent deliberating over three days.
"There were certain of us that would rather it have said 'guilty, but insane,'" jury foreman Todd Frank said after the verdict was announced. "We had discussed that at length as being an affirmative defense, but it still didn't sit well with everyone." By Paul J. Weber, AP, Star-Telegram.com Link to Article (last visited 7-26-06 NVS)