Wednesday, July 21, 2010

Details of Temporary Custody Hearing in Orlando paper or And Yet Something Else Not to Do to Your Child

The "Yet Something Else Not to Do to Your Child" in the article linked below is shoot him. Yes, you read that right, a father is alleged to have shot his own son.

Ocoee father shooting son: Judge says mother of teen shot can't protect her children - OrlandoSentinel.com

The horrendous circumstances depicted in the headline caught my attention. I think you knew already that parents should NOT shoot their children. That's not why I posted the article.

I have often thought that child protective services (CPS) agencies (the Department of Children and Families, DCF, formerly DSS, in Massachusetts) overreach in bringing "failure to protect" cases. I went to read the details in the article thinking I would find myself objecting with statements such as, "What more did they expect her to do? How could she have predicted that?" But the article convinced me, as the Florida DCF lawyer convinced the Orange County (FL) judge, that this was probably a reasonable failure to protect case.

That's not why I posted the article.

Two things really caught my attention:

1. The reporter seems to have been in the courtroom. She published details about the allegations and comments about what the attorneys said.

In Massachusetts, child protection cases are closed to the public. We might get a snippet in the news about the police bringing DCF into a case when they find children in a "house of horrors" or when parents are arrested. But we don't get to see inside the CPS system -- the public doesn't know how it is decided whether children are released to their parents or placed.

2. The article said that the children were upset when told they wouldn't be going home and it has comments about what the parents' attorneys said. Nothing was said though about what the children's attorney said.

In Mass children's counsel are supposed to follow their clients' expressed wishes or, if the child is too young or otherwise incompetent for reasons other than just minority, use substituted judgment to determine what the children would want if they were competent.

Hmm, on third thought, did the children need to be taken away from the mother?

Sunday, July 4, 2010

The Declaration of Independence

The Declaration of Independence

In Congress, July 4, 1776

The unanimous declaration of the thirteen United States of America

WHEN in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their Safety and Happiness.

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the People.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States, for that purpose obstructing the Laws for Naturalization of Foreigners, refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of officers to harass our People, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislature.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing taxes on us without our Consent:

For depriving us in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislature, and declaring themselves invested with Power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Friday, April 9, 2010

Something Else Schools Can't Do -- Teach

About sex that is.

According to a District Attorney in Juneau County, Wisconsin, if teachers follow their state's new sex education law they risk being prosecuted for "misdemeanor or felony delinquency of a minor, with maximum punishments ranging from nine months in jail to six years in prison."

He suggested in his letter to school districts that someone instructing students under 16 in the use of contraceptives is punishable because "the 'natural and probable consequences' of the teacher's instruction is to cause that child to engage in sexual intercourse with a child".

Read the rest of the article here.

So, apparently, this DA thinks it is a criminal act to even cause a kid to think about sex. And that is regardless of whether what is taught actually causes sex or is designed for the purpose of protecting students from some of the consequences of their youthful indiscretions.

Wednesday, March 24, 2010

Legal Consequences of Teen Sexuality

The following question was posted here:
http://www.avvo.com/legal-answers/can-a-16-year-old-consent-to-sex-in-ma-to-a-29-yea-233319.html

Paraphrasing the question:
I am 16 and see a personal counselor. I told her I am in a relationship with a 29 year old man. She checked with her advisers and DCF to see if it was legal or not and said yes it is legal -- there's nothing anyone can do about it. Then a couple of months after that my counselor brought my mom in with us during a session to work on my relationship with her. My mom brought up her concerns of me possibly being with this man. I have always said to her I wasn't with him and he has told her the same. The next day tells me that it's illegal and she needs to tell the authorities. So, is it legal or not?
My answers:
The age of consent for sexual relations in Massachusetts is 16. I'll post more in a few minutes after searching to give you some citations.

Call me at 781-641-3472 if you would like a free, brief initial consultation about your rights.
The Massachusetts Trial Court Law Libraries have put together a great set of links on a page called "Massachusetts Law About Sex."
I suppose it could be argued that it might be "abuse" under DCF (formerly DSS)'s definition if the counselor had "reasonable cause to believe" that your relationship with this man "causes, or creates a substantial risk of physical or emotional injury," or if the man can be defined as a "caretaker" in relationship to you because "any sexual contact between a caretaker and a child under the care of that individual" also constitutes "abuse." I'll link the definition page below as well as the statutory link about what a counselor is "mandated" to "report."
On the other hand, a child in DCF custody is allowed to consent to her own "family planning services" which can include contraception. See §11.05 of the Medical Authorizations regulation linked below.
If the counselor is required to report under §51A, linked below, your right to privacy of your conversations with her is essentially voided. If she is wrong about her insistence on reporting and ignores your reasonable requests that she keep your confidences, you may have a claim against her.
DCF's Glossary regulation
Mandated reporting Law
DCF's Medical authorizations regulation

Wednesday, February 24, 2010

And Now Something that Schools Cannot Do to Kids

And Now Something that Schools Cannot Do to Kids - ridicule a child and have the school police escort her out of the room for refusing to stand for the Pledge of Allegiance.

But that appears to be just what happened to a 13 year old at the Roberto Clemente Middle School in Montgomery County, Virginia, last month. It happened despite it being settled law since 1943 that one cannot be forced to say the Pledge or participate in other patriotic exercises and despite the fact that the school handbook even says that kids cannot be disciplined for refusal to participate.

See the full story here.

Post comments below to ask me about other things that you want to know whether schools can do to kids and I'll consider a Ten Things list.

Tuesday, February 16, 2010

Untold Number of Things You Can Be Restrained from Doing to Anyone

Massachusetts will soon have an Harassment Prevention Order statute.

Chapter 23 of the Acts of 2010: AN ACT RELATIVE TO HARASSMENT PREVENTION ORDERS was enacted on February 9, 2010. By my calculation it will go into effect on May 10th. The act adds a new chapter, 258E, to the Mass. General Laws. It is not yet up in the official, online version of the General Laws, so for now you'll have to use the St. 2010, c. 23 link or, to eventually find it in its codified form, go to M.G.L. c. 258D, § 9 and click the "Next Section" button.

The actions that are restrainable under the new law are defined as follows:
“Abuse”, attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm.

“Harassment”, (i) 3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272. (M.G.L. c. 258D, § 1.)
In contrast to Abuse Prevention Orders (Mass. Gen. Laws chapter 209A), the plaintiff and defendant in a complaint for protection from harassment do not need to have had any family, living or substantial dating relationship. (Cf. M.G.L. c. 209A, § 1.) But similarly to chapter 209A: Violations of chapter 258D orders are criminal offenses, there are no filing fees, the orders can be entered without advance notice, initial orders are valid for 10 court business days after which there is to be an extension hearing and there do not need to have been violations of the order for the order to be extended after its original expiration date.

The relief available to "A person suffering from harassment" is to "order that the defendant:"
(i) refrain from abusing or harassing the plaintiff, whether the defendant is an adult or minor;
(ii) refrain from contacting the plaintiff, unless authorized by the court, whether the defendant is an adult or minor;
(iii) remain away from the plaintiff’s household or workplace, whether the defendant is an adult or minor; and
(iv) pay the plaintiff monetary compensation for the losses suffered as a direct result of the harassment; provided, however, that compensatory damages shall include, but shall not be limited to, loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement of locks, medical expenses, cost for obtaining an unlisted phone number and reasonable attorney’s fees. (G.L. c. 258B, § 3(a).)
Violations of the orders are criminal offenses with potential penalties of:
[A] fine of not more than $5,000, or by imprisonment for not more than 2½ years in a house of correction, or both. In addition to, but not in lieu of, the foregoing penalties and any other sentence, fee or assessment, including the victim witness assessment in section 8 of chapter 258B, the court shall order persons convicted of a violation of such an order to pay a fine of $25 that shall be transmitted to the treasurer for deposit into the General Fund. For any violation of such order, the court may order the defendant to complete an appropriate treatment program based on the offense.

In each instance in which there is a violation of a harassment prevention order or a protection order issued by another jurisdiction, the court may order the defendant to pay the plaintiff for all damages including, but not limited to, loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement locks, medical expenses, cost for obtaining an unlisted telephone number and reasonable attorney’s fees. (M.G.L. c. 258D, § 9.)
The orders may be sought in the district, superior, Boston Municipal or, if both the plaintiff and defendant are below the age of 17, in the juvenile courts where the plaintiffs reside. (M.G.L. c. 258A, § 2.)

To discuss obtaining or defending against such an order, read my Initial Consultation Policies and contact The Law Office of Michael L. Rich.

Saturday, January 23, 2010

Yet Something Else Not To Do To Your Child

This article that I was alerted to via the Snopes.com "Daily Snopes" is perhaps this Georgia mother's reply to the following inquiry:

At a party several years ago, I was introduced to a lawyer who was here from China studying taxation law at Harvard Law School. He asked me what field of law I practiced. When I told him Children's Law he said, "I don't think we have that in China." After a brief discussion of what Children's Law was about, he said, "You can probably tell me then, is it true that you're not allowed to beat your children in America?" When I said yes, that was mostly true he asked, "So, what do you do when they don't study?"

And the answer is:

As punishment for bad grades, a Georgia mother forced her 12-year-old son to kill his pet hamster with a hammer, police said.

The day after he was forced to kill his pet, the child told his teacher [...].

The teacher reported the incident to DFCS authorities, who contacted police [who arrested Mom].

See the rest of the article here: Cops: Mom forces son to kill hamster for bad grade | ajc.com

So there's something else to add to my list of Top 10 Discipline Methods Not to Use on your Child.

Thursday, January 14, 2010

Another Thing Not to do to Your Child?

Don't let him wear long hair.

At least not if he goes to Floyd Elementary School in Mesquite, Texas.

Texas school board keeps ban on boy's long hair

and continues the in-school suspension for the pre-kindergartner. The article says:
The district is known for standing tough on its dress code. Last year, a seventh-grader was sent home for wearing black skinny pants.