Thursday, March 27, 2014

DCF Interviews at School

It is a pet peeve of mine that DCF investigators think they can talk to children at school and that schools let them.

It has been a major debate in several federal appeals courts, amongst attorney members of the National Association of Counsel for Children, on the American Bar Association Child / Parent Attorneys email discussion list, amongst members of the National Association of CPS Defenses Attorneys and even at the U.S. Supreme Court.

Unfortunately it remains an open question. But I lean toward the proposition that schools should not permit DCF personnel, police or other employees of outside agencies to interview children, who are not in the custody of the interviewing person, at school.

My answer to the question "is it legal?"on avvo.com, which lays out some of my reasoning, can be found here: http://www.avvo.com/legal-answers/my-child-is-being-questioned-at-school-by-dcf.

If your school committee has a policy about visitors or interviews and you know or suspect that your child might be a target for an interview, consider adapting the form letters in my previous post to your situation.

And consult with an attorney who is familiar with DCF policies and practices.

Saturday, August 31, 2013

Dear Principal: No DCF or law enforcement interviews


If you think your child may be about to be interviewed at school by DCF or law enforcement, you might want to consider having him/her carry a card similar to the one in my previous post and sending this letter to the Principal and school district administration:

Dear Principal ____________:

My/Our child, [Child's Name], has been instructed not to discuss any non-academic matters with school administrators and not to speak at all with personnel from any outside agencies until one or both parents or my/our attorney is/are present. The only exception would be an emergency that concerns the immediate safety of my/our child or other children. Under no circumstances is my/our child to sign any document or write out any statement unless I/we am/are present.

If any [Name of School] administrator desires to question my/our child regarding any incident, please inform me/us immediately and I/we will come to the school as soon as possible. If anyone from an outside agency desires to meet with or question my/our child, please inform them that you do not have parental permission for them to meet with my/our child at school and ask them to schedule an appointment with me/us. My/Our home number is [Home Phone]. My/Our work numbers, for school emergencies only, do NOT provide to outside agencies except in a medical emergency, are [Name, Work Phone, Name, Work Phone].

I/We intend to cooperate with school officials regarding appropriate matters and will require that my/our child also cooperate. We simply ask that you wait until I/we are present to undertake any questioning.

Respectfully,

[Parent's(s’) Name(s)] [Address(es)]
[
City(ies), State(s) Zip(s)]

The blog of Atty. Michael L. Rich*
Concentrating in Children’s and Family Law
37 Middlesex Circle – Unit 21
Waltham, MA 02452
781-373-1582, fax: 339-368-7662

Emergencies: 339-707-0050
mike@michaelrichlaw.com

www.MichaelRichLaw.com

*Atty. Rich does not represent this child or family unless his signature appears on the form.

Available to copy at www.michaelrichlaw.blogspot.com and for group members for download at www.groups.yahoo.com/group/kidlawrich.

It is strongly suggested that you have an attorney and consult with him/her before sending this form to your child's school.

When you think DCF is going to talk to your child at school

For students to carry with them:

My Right to Remain Silent

My parents agree that I have the following rights*:

1. To refuse to talk to any school official, police officer, counselor or social worker about anything that is not related to my school work.

2. To refuse to sign any forms or discuss anything related to my family.

3. To deny consent to any search of my person or articles in my possession.

4. To insist that the school call my parents and ask my parents to come to the school immediately if I am to be questioned.

In the exercise of these rights:

I will be respectful to all officials at all times.

I will not be threatening or aggressive in my resistance.

__________________        ___________________
Child’s signature             Parent(s)’ signature(s)

* Many of these "rights" have not been specifically recognized by the legal system. Some derive from case law, some from Massachusetts statutes and regulations, some from model school department policies and some are merely desired interpretations.

Form copied from:
A service of Atty. Michael L. Rich*
Concentrating in Children’s and Family Law
37 Middlesex Circle – Unit 21
Waltham, MA 02452
781-373-1582, Fax 339-368-7662
Emergencies 339-707-0050
                                   
Available as a post at www.michaelrichlaw.blogspot.com and to group members for download at www.groups.yahoo.com/group/kidlawrich

*Atty. Rich does not represent this child or family unless his signature appears on the form.

Go over this form and the situation with your child, preferably after retaining a DCF/CPS defense attorney in your area. If you are unable to connect with an attorney before the next school day, consider whether to send the form to school with your child.

Sunday, August 25, 2013

Arlington Mass. Gun Buyback Program

Several faith communities in Arlington have gotten together with the Arlington Police Department and sponsors from around Town to offer grocery gift cards in exchange for unwanted firearms.

The event will be held on Saturday, September 28, 2013, from 10:00 a.m. to 3:00 p.m., at the Arlington  DPW lot at 51 Grove Street.*

Here is a video clip from Arlington Community Media, Inc., in which I am being interviewed about the event --



* Rain date Saturday, October 5, 2014.

For more information go to www.arlingtongunbuyback.org.

Saturday, May 18, 2013

Arlington, MA, Police Arrest Innocent Man in New York

Not really.

But the reporting of the arrest here: http://www.yourarlington.com/archive/news-archive/374-police1/5895-abuse-51813 and here: http://arlington.patch.com/articles/arrest-made-in-arlington-boys-girls-club-sexual-abuse-investigation bumps up against one of my pet peeves.
Mr. ___ is innocent until proven guilty.
If he is "innocent", why did they arrest him? What they are talking about is the constitutional presumption of innocence. The presumption of innocence says that we must treat a criminal defendant AS IF he is innocent until he is proven guilty. Mr. ___ may actually be innocent. His arrest on a warrant just means that the police thought and convinced a judge or magistrate that they had probable cause to believe he had committed a crime. What the APD should have said in its press release, and what I will say here, is "The charges are only allegations at this point. Mr. ___ is presumed innocent until proven guilty."

In actuality, if someone IS actually innocent, he will remain that way EVEN IF he is convicted in court. Unfortunately, we have way too many incidents of innocent people being convicted or even pleading to crimes to ignore the irony of misrepresenting the constitutional provision.

Innocent people are convicted but they remain innocent nonetheless.

Thursday, May 16, 2013

Protected by confidentiality laws. Really?

What part of "This case and the details related to the newborn are protected by confidentiality laws."?

www.baynews9.com/content/news/baynews9/news/article.html/content/news/articles/bn9/2013/5/15/citrus_county_mother.html

They include a picture of the mother, her name, what she is in jail charged with and that her newborn was taken into protective custody by FL DCF. The only part of the case details they did not include was the name of the "family members" with whom the infant has been placed.

Are there confidentiality laws protecting anyone in the case or not?

WAIT - here's another one:

www.claytodayonline.com/ee/claytoday/en/component/fullstory/20130516_020_art_5/teen-held-on-sex-charge

Also Florida.  A local doctor made a report to DCF and the police. It was the doctor, "whose name was not released under Florida’s confidentiality laws"!

As to the teen who is the alleged perpetrator, his name, the town he lives in, his picture and the offense he is being charged with were all reported.

Why are reporters, especially mandated reporters, having their identities protected? Where is the protection for the accused? For the children involved in the cases?

Saturday, March 2, 2013

10 Things You Should Know About CHINS

1. There is no such animal anymore.

On November 5, 2012, a new law went into effect that revamped CHINS and did away with that term. The new law was supposed to be called FACES (Families and Children Engaging in Services) but is instead going to be known as CRA (Children Requiring Assistance). Read AN ACT REGARDING FAMILIES AND CHILDREN ENGAGED IN SERVICES hereSession Laws Acts 2012 Chapter240.

2. Definitions changed.

The new statute applies to children between the ages of 6 and 18. The old law only went up to 17. Since the mandatory school attendance law only requires school attendance until age 16, school-based applications must still be dismissed when the student reaches age 16.

A Runaway is a child between the ages of 6 and 18 who repeatedly runs away from the home of a parent, legal guardian or custodian.

The other home-based category makes clear that the rules violations to trigger an application must be important ones. An application may be filed for a child between the ages of 6 and 18 who repeatedly fails to obey the lawful and reasonable commands of a parent, legal guardian or custodian, thereby interfering with their ability to care for and protect the child.

A Truant is a child who when not otherwise excused from attendance in accordance with lawful and reasonable school regulations, willfully fails to attend school more that eight school days in a quarter.

The other school-based application is for a child who repeatedly fails to obey lawful and reasonable school regulations.

3. Police officers may no longer file applications.

Mass. General Laws chapter 119 § 39E (which will be here: www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXVII/Chapter119/Section39E but has not yet been updated with the new statute) lists those who may file an application for assistance as "A parent, legal guardian, or custodian of a child having custody of such child." Custodian and having custody are additions to the statute. Practitioners question if "having custody" applies to a parent. Some courts were not letting non-custodial parents file under the old CHINS law.

Police officers are no longer listed in those who may file. The new statute no longer requires a certified supervisor of attendance to file school-based applications. Applications may be filed by a school district. Practitioners question whether that means a school district employee or if a school district may only be represented by an attorney.

4. The bail provisions of the old CHINS law were eliminated.

There is no reference to bail in the new CRA law. The court may place the child in the temporary custody of DCF but the order is only good for 15 days at a time and may only be renewed twice for a total of 45 days.

5. Arrest is no longer allowed.

If a child fails to obey a CRA summons or the a police officer has probably cause to believe a child is a runaway AND will not respond to a summons, s/he may be taken into custodial protection.

BUT custodial protection does not allow police to bring child to the police station or a lockup (not even the juvenile court detention facility) and cannot be handcuffed or shackled.

Court orders for to bring a child to court for failure to obey a summons are not to be entered into the state's Warrant Management System (WMS).

6. CRA cases are not be placed on CORI, CARI, BOP or WMS.

The cases are not to be entered on the child's Criminal Offender Record Information, Court Appearance Record Information, Board of Probation record or Warrant Management System. If the application is dismissed before a fact-finding hearing it is supposed to be expunged. No record "shall be maintained or remain active" after the case is dismissed.

7. Parent applicants may now dismiss their petitions.

Overturning the In re Gail, 471 Mass. 321 (1994) case, which said that the petitioner-mother could not dismiss her CHINS petition, the new CRA law authorizes any party to file a motion to dismiss until the disposition hearing. The judge "may" order dismissal if it is in the best interests of the child or if all parties agree.

8. No more jury trials.

The new statute specifies that the fact-finding hearing is before a judge, not a jury. When the legislature did away with trial de novo in every other area of law, it left it in the old CHINS statute. The new CRA law does away with the child's ability to have a second trial in a jury session. Instead appeals are no longer whole new trials but will be decided on issues of law in the single justice session of the Mass. Appeals Court (under M.G.L. c. 231, § 118).

9. Disposition is a two-step process and is time-limited.

Under the new CRA law the court must convene and may participate in an on-the-record "conference" of the probation officer, petitioner, school, parent, child, child's attorney, DCF and "any other person who may be helpful in determining the most effective assistance available to be offered to the child and family." The probation officer must write recommendations and other persons may submit written recommendations to advise the court on appropriate treatment, services, placement, conditions and limitations.

The first disposition order may last for not more than 120 days. It may be extended after hearing for 90 days. A maximum of 3 extensions are allowed for a total of 390 days.

10. Links to resources.

The Massachusetts Juvenile Court Department issued a Handbook for Parents, Legal Guardians, and Custodians in Child Requiring Assistance Cases it is no longer available here, but can still be found by searching for it by title.

The Children and Family Law Program of the Committee for Public Counsel Services has compiled a set of links which includes the Juvenile Court Memorandum of October 25, 2012 and links that let you download "a detailed memorandum discussing the new law," "a short summary of the changes," and "the sections of Chapter 119 that pertain to status offenses, as it will read on November 5, 2012"; or go here to access the links from the CAFL News page.

Special thanks to Attorney Michael Kilkelly who prepared a lot of the CAFL materials and presented them in a series of workshops for interested attorneys.