Friday, January 11, 2008
A recent report by two research institutions, the Center for New York City Affairs at the New School and the Center for an Urban Future reports that the New York Family Court system has been “overwhelmed” by a flood of abuse and neglect cases in the last two years. The report “Against the Clock: The Struggle to Move Kids Into Permanent Homes,” notes that abuse and neglect allegation have increased by 150% in the past two years and that more children are spending longer periods in foster care. "Despite the Permanency Law of 2005 — which aimed to get children out of foster care faster — kids in New York City are staying in foster care longer. For children in foster care for the first time, the median length of stay before returning home rose from 8.2 months in fiscal year 2005 to 11.5 months in fiscal year 2007."
Saturday, August 18, 2007
The Minnesota Supreme Court has held that the state's Child Abuse Reporting Act does not create a private cause of action against mandatory reporters for failure to report suspected child abuse to authorities. The court thus affirmed the district court's dismissal of this count of the plaintiff's claim. However, the plaintiffs had also pled a common law negligence claim. While the district court did not strike that claim, it did exclude all evidence related to the hospital's responsibility to report suspected child abuse to outside authorities. The supreme court held that this was error because the plaintiffs presented a prima facie case that the ordinary skill and care expected in the medical profession required the hospital to report a child with suspicious injuries as a victim of suspected child abuse. Two dissenting judges would have affirmed the district court's exclusion of
evidence as well, reasoning that the plaintiffs had failed to make a sufficient offer of proof.
Becker v. Mayo Found., 2007 Minn. LEXIS 455 (Minnesota Supreme Court August 16, 2007)
Opinion online (last visited August 18, 2007 bgf)
Thursday, August 9, 2007
A controversial law effectively banning parents from smacking their children has been passed by New Zealand's parliament. The legislation closes a legal loophole that allowed parents to use "reasonable force" to discipline their child. However, the new bill allows the police to use discretion over whether a parent should be prosecuted or not.
Read the BBC article (last visited August 10, 2007 bgf)
Tuesday, July 31, 2007
The 18th Annual Kids Count Data Book is now available from the Annie E. Casey Foundation. The data book provides national and state-by-state information and statistical trends on the conditions of America’s children and families. Among the key indicators the data book tracks are infant, child and teen deaths; low-birthweight babies, teen births, high school dropout, teens not in school and not working, children living in families where no parent has full-time, year-round employment; children living in single-parent families, and percentage of children in poverty.
Tuesday, April 24, 2007
"Fifteen states get failing grades on a first-of-its-kind report card assessing the legal representation provided to abused and neglected children as courts make potentially fateful decisions about whether to separate them from their families.
The report, being released at a Capitol Hill briefing Tuesday by the Washington-based child advocacy group First Star, is sharply critical of states which do not require all children in these proceedings to be represented by their own attorneys.
It also says more states should join the 17 that require lawyers in these cases to represent the child's expressed wishes and ensure that those preferences are heard in court.
''In these proceedings the family of a child can be created and or destroyed based on the determination by the court,'' the report says. ''And too often, the child, although most impacted by the court, has the least amount of input.''
Since 1974, Congress has required states to appoint a representative -- often known as a guardian ad litem -- for any child involved in abuse and neglect proceedings. However, states have interpreted the federal law in varying ways; the First Star report said 16 do not have statutes requiring that these children be represented by their own attorneys in all child-protection proceedings." Associate Press, N.Y. Times Link to Article (last visited 4-24-97 NVS)
Sunday, April 1, 2007
To most Texans, the West Texas State School here is the troubled institution at the center of a sexual abuse scandal that has shaken the state’s juvenile detention system.
But to the residents of this town of 129 and the neighboring communities, it is a source of badly needed jobs.
That is why about 200 people gathered outside the county courthouse in Monahans on Tuesday to oppose a state auditor’s recommendation to close the school, and why nine residents made the 750-mile round trip drive to Austin this week to address legislators on the matter.
“This facility has been a part of the community since 1965,” said Donna Garcia, community relations coordinator at the school. “It feels like a personal vendetta against this community. We feel like the Legislature needs somebody to blame this on.”
In February, news accounts reported that from 2003 to 2005 two officials at West Texas State had had late-night sexual encounters with incarcerated boys and then were allowed to resign without facing criminal charges. Responding to the disclosure, and to pressure from the Legislature, Gov. Rick Perry forced the resignation of the Texas Youth Commission board and ordered a review of all of its facilities.
The agency is currently investigating 1,200 complaints against juvenile facilities around the state.
“Obviously, we’re outraged at the kind of things that are alleged,” Judge Greg Holly of the
By Barbara Novovitch, N.Y. Times Link to Article (Last visited 4-1-07 NVS)
Sunday, February 11, 2007
Case Law Development: Foster Parent's Privilege to Use Reasonable Physical Discipline Does Not Extend to Spanking that Leaves Extensive Bruising
The Arkansas Supreme Court finds that foster parents are “guardians” for purposes of the child abuse statute which permits “reasonable and moderate” physical punishment “for purposes of restraining or correcting the child.” The case involved a foster mother who had appealed the entry of her name on the state child-maltreatment registry, with the consequence that she would be thereafter ineligible to be a foster parent. While the court found that, despite the fact that foster parents are trained not to use physical discipline, the state statute’s exception for physical discipline extends to foster parents. However, in this case, the court agreed that the Department of Health and Human Services had not erred in refusing to remove the foster mother’s name from the registry since she had spanked a four-year-old child who suffered from cerebral palsy, used a walker for assistance, and was not potty-trained and left eight to ten straight-line bruises from the top of her knees, to the bottom of her buttocks, all of which were visible 27 hours later. The court concluded “we simply cannot say that such injuries constituted "minor temporary marks," nor were they the result of reasonable or moderate physical discipline.”
Dept. of Health and Human Services v. R.C., 2007 Ark. LEXIS 102 (February 8, 2007)
Opinion on the web (last visited February 11, 2007 bgf)
Thursday, February 1, 2007
Kelly Browe Olson, The Importance of Using Alternative Dispute Resolution Techniques and Processes in the Ethical and Informed Representation of Children, 6 NEV. L.J. 1333 (2006). This article analyzes and recommends the use of ADR processes in legal proceedings involving children. In contrast to the adversarial system, ADR incorporates confidentiality, listening, collaboration, problem-solving, information exchange, and future focus. The author explores the role of the attorney in child welfare, delinquency, and child custody proceedings. Link to Article (last visited 1-31-07 NVS)
Tuesday, January 30, 2007
"When current and former foster children formed a group to help youths who had turned 18 and were “aging out” of the system, one of the first things they did was hold a luggage drive.
“We saw that a lot of the kids were taking their clothes out in garbage bags,” said Chilton Brown, 23, a former foster child who spent ages 3 to 18 as a ward of the state, bouncing around 15 family homes or group residences.
A life contained in green plastic bags: it is the kind of humiliating detail that hits home hardest among foster youths themselves. It is also a telling sign of how unprepared many of these 18-year-olds are to live on their own, without families, jobs or school diplomas to shore them up."By Erik Eckholm, N.Y. Times Link to Article (last visited 1-29-07 NVS)
Tuesday, December 19, 2006
"In an effort to correct dysfunctional foster care systems, a growing number of child welfare agencies around the country are reaching outside their ranks to involve troubled families and the people in their lives in wrenching decisions about where endangered children should live. Some agencies find that by enlisting help from grandparents, church members, school counselors and sports coaches, they can reach faster, safer and more lasting decisions that result in fewer children languishing in foster care. Under the practice, known as team decision making, a group is assembled within 24 to 48 hours after a state agency is called into a crisis situation.
Programs exist in at least 21 states. Indiana, Michigan and Tennessee have adopted the team-approach statewide, while other programs are run at the county level. Officials in Denver County, Colo., credit the team approach for a 32 percent drop in out-of-home placements since 2002. In Cuyahoga County, Ohio, the program has reduced the number of children in foster care by more than half since 2001. Tennessee has reduced the number of children in state care by more than 1,000 since March 2004, when there were 10,600 in the system." By Lynette Clemetson, N.Y. Times Link to Article (last visited 12-18-06 NVS)
Wednesday, December 13, 2006
Case Law Development: Parent of Child Who Has Been Abused May Not be the Monitor for Child's Supervised Visitation with the Abusive Parent.
The trial court allowed a father, who sexually abused his adopted son, to return to the family home on weekends and designated the non-offending second parent as the monitor after finding that both parents had been participating in counseling and parenting classes. The non-offending parent was employed full time and the offending parent had been a stay-at-home parent.
The court of appeals reversed, because it found that the offending parent's return to the family home under these circumstances could not meet the needs of monitored visitation. It reasoned that even if the non-offending parent were able to arrange for another adult to monitor the visit while he was at work, "living together in the family residence will necessarily mean periods exist, even if somewhat brief (for example, when [non-offending parent] is asleep or showering), when the designated monitor will be unavailable. At least when the threat to the dependent child is the likely recurrence of sexual abuse, the concept of monitored visitation is fundamentally incompatible with around-the-clock in-home contact."
In re Ethan G., 2006 Cal. App. LEXIS 1922 (December 6, 2006)
Opinion on the web (last visited December 13, 2006 bgf)
Tuesday, December 12, 2006
"In the year since a 7-year-old was found beaten to death in a rodent-infested room in her family's apartment, the city's child welfare agency has improved staffing, case tracking and coordination with other city agencies. At the same time, however, it has seen an extraordinary increase in the number of child abuse and neglect reports, the agency says in a progress report due for release Monday. The Administration for Children's Services has received about 64,000 reports of abuse and neglect this year -- up about 33 percent from last year.
''We've dealt with a challenge that I have never seen the like of anywhere in the country -- a huge explosion in the number of reports,'' agency Commissioner John Mattingly said. ''We've had to investigate every one of them.''" Associate Press, N.Y. Times Link to Article (last visited 12-11-06 NVS)
Thursday, November 2, 2006
"A woman accused of duct-taping her two children together and leaving them home alone has been charged with child abuse, the sheriff's office said. Agla Nadia Vincent, 25, was arrested Monday following a seven-month investigation into whether she left her two boys, then aged 2 and 3, taped to each other while she went to work, said Lt. Annie Smith of the Jacksonville Sheriff's Office." AP, CNN.com Link to Article (last visited 11-1-06 NVS)
"An Ethiopian immigrant was convicted Wednesday of the genital mutilation of his 2-year-old daughter and was sentenced to 10 years in prison in what was believed to be the first such criminal case in the United States. Khalid Adem, 30, was found guilty of aggravated battery and cruelty to children. Prosecutors said he used scissors to remove his daughter's clitoris in his family's Atlanta-area apartment in 2001. The child's mother, Fortunate Adem, said she did not discover it until more than a year later." AP, CNN.com Link to Article (last visited 11-1-06 NVS)
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)