Corporal punishment

Following a discussion on the Arlington email list about anti-corporal punishment legislation that Rep. Jay Kaufman filed on behalf of Arlington resident Kathleen Wolf, Rep. Kaufman posted his rationale for testifying in favor of the bill.

My reply to Rep. Kaufman's post and letter to the editor:

I believe that the Department of Social Services (DSS) provided misleading statistics to the Legislature that Rep. Kaufman cited in his testimony and Letter to the Editor concerning the corporal punishment bill (The Advocate, December 6, 2007) .

My experience as an attorney who has represented parents and children in abuse and neglect cases for almost 30 years tells me that the "19,000 cases of abuse reported to DSS in the 3rd Quarter" almost certainly included "incidental or minor physical contact" that the bill exempts and its proponents say they are not concerned about.

The mandated reporting statute (General Laws chapter 119, section 51A) is interpreted by DSS to require reporting whenever there is any suspicion of abuse or neglect.

I have had two cases already this quarter and several more in my career in which DSS decided to "support for abuse" in cases where there was merely a "spanking" or "a swat". Involvement of DSS in those families and its erroneous findings that there was abuse occurred even though "abuse" is defined in DSS's own regulations and the Supreme Judicial Court's 1999 *Cobble* case as requiring more than brief, minor pain and a rapidly fading red mark.

The referral of 1,200 cases to the District Attorney (DA) level is cited as meaning that "there was compelling evidence of abuse and prosecution was warranted." Not so. Under DSS regulations referral to the DA merely means that a DSS "investigator" has determined that there was "reasonable cause to believe" that certain serious kinds of abuse had occurred. "Reasonable cause" does not require physical evidence or even medical confirmation.

If the cited statistic was even the number of cases referred by DSS on which DAs filed criminal cases, maybe it would be an indication that someone had determined there was "probable cause" to believe a crime had been committed. That is not what a DSS referral to the DA means. "Reasonable cause" in DSS-speak does not equal "probable cause." Rarely are any of the 19,000 reported cases presented to a court or even to anyone outside of the intake unit for independent fact-finding determinations.

The constitutional burden of proof for criminal cases is "beyond a reasonable doubt." Courts have ruled that family relationships can be permanently severed upon "clear and convincing evidence." To temporarily remove a child from a family into foster care while the court determines if the child is at risk of harm requires only "a fair preponderance of the evidence." But DSS referring a case to the DA is an even lower standard -- "reasonable cause to believe" that abuse has occurred. The fact that only "1,200 of [the 19,000 reported cases] "advanced to the DA's level" means that 17,800 were either "unsupported" or were found not to have any evidence of serious abuse.

Yes, abuse is a serious problem and should be uncovered, prosecuted and prevented. Children should be protected from it. But, if this bill passes DSS, an agency that already involves itself with 80,000 cases per year (many of which are not significant enough to refer for law enforcement investigation), will have an excuse to continue its micromanagement of parents who do not conform to its belief that all physical contact in discipline is harmful and warrants intervention.

I am certainly in favor of the legislative deliberations that Rep. Kaufman's testimony suggests but I think focusing on corporal punishment and giving DSS additional incentive to investigate families that use it reasonably, runs the risk of driving parents underground with their questions about how best to raise their children. If medical and other childcare professionals must report a family to DSS every time there is a suspicion of the use of corporal punishment, insecure parents may refrain from asking for advice.

So, yes, have the debate; reforms are needed. The Legislature should consider requiring a judicial determination of probable cause or real, documentable exigent circumstances (as I believe to be required by the Fourth Amendment to the US Constitution and Article XII of the Massachusetts Declaration of Rights) before DSS is allowed to pierce a family's privacy or take their children involuntarily into foster care.

I respectfully urge the legislature not to pass this bill. Stop abuse, prevent abuse, prosecute abuse - but keep the government out of the private affairs of families.

was published in The Arlington Advocate as a Guest Column "More on corporal punishment" and was promoted by Atty. Deborah Sirotkin Butler on the Blue Mass Group blog "Legislation on corporal punishment - protection for children or invasion of privacy ?".

The issue seems to sharply divide people between those who believe that all corporal punishment constitutes abuse or battery and should be punished and those who think that corporal punishment is a personal choice and may not warrant state intervention in all cases.

Guardianship a "Risky Strategy"?

When I first started reading Justice Cowin's decision for the Massachusetts Appeals Court in Guardianship of Estelle, 70 Mass. App. Ct. 575 (2007), I was encouraged by the statement that the trial judge's decision "cannot stand as a matter of law because the father is correct that, absent a finding of unfitness on his part, the judge is without authority to require that he share parenting decisions with others".

I didn't stop to think that the "remand for further findings in accordance with the discussion below" would result in anything other than the Appeals Court sticking to that straight forward black letter law assertion.

Unfortunately, Justice Cowin goes on to encourage the trial judge to reconsider whether actions on the part of the father that the trial judge was not willing to call abuse, neglect or unfitness still might make the father unfit "to parent this child in these circumstances at this time." [Emphasis in original.]

The opinion goes on, "Though the importance and parameters of an attachment to a foster parent or guardian have varied, the validity of considering the effect of a transfer of custody on the child as an element of the fitness of the transferee has been upheld consistently." The decision thus allows the trial judge to rethink whether the father's seeking help from the aunt and uncle during his hard times and the resulting attachment the child has to the aunt and uncle might permit denying the father's request for return of the child; without even requiring expert testimony on the issue of whether a transfer might harm the child or how such harm might be mitigated after a transfer back to the father.

As Attorney Deborah Sirotkin Butler pointed out in an email to me and posts (as AmberPaw*) on several parent and child defense attorney email lists, what this decision should make "clear, is that agreeing to a guardianship is a risky strategy for an unwed parent, especially a father, as the case law seems to be moving in the direction of making it harder and harder to retrieve a child from a guardianship, and the mere length of time a guardianship endures and the 'bonds' that form, make it hard to extract a child". [Emphasis added; questionable use 'quotes' in original.]

* Speaking of AmberPaw, you should check out her posts about DSS reform on the BlueMassGroup blog.

DSS Reform Bill

Massachusetts House Bill 4191 An "Act Relative to Child Abuse and Neglect" is scheduled for public hearing tomorrow (9/26/07, 10:30 a.m. in room 222) by the Legislature's Joint Committee on Children, Families and Persons with Disabilities.

Though the bill fixes several of the issues of lack of real oversight highlighted by the Haleigh Poutre case, too much of the lack of oversight, dearth of definitions, confusing language and lack of due process for families in the current statute are left essentially untouched. What tries to look like major overhaul of the whole statutory scheme is really just a minor tune up of a small portion of what really affects families involved with the child protection system.

I am afraid that passage of the bill in its entirety will make it appear that thoughtful consideration was given by the legislature to the troubling issues that are really not addressed.

I call on Senator Spilka, Rep. Coakley-Rivera and the rest of their committee to recommend passage of the new oversight and second opinion provisions of H. 4191 but to remove the portions that merely restate the existing sections of chapter 18B and 119 until a comprehensive review and restructuring particularly recognizing parents' rights, due process, probable cause and true judicial oversight of DSS or the Department of Children and Families can be accomplished.

Special Education

Watch SpEd Watch founder Ellen Chambers and her daughter, Sarah, on Medford Cablevision's award winning "Ablevision" http://youtube.com/watch?v=CgdQHeZZV5w

They made a federal case out of it!

Remember that stuff they told you about the delinquency charge you (or your child) had? They said it was o.k. to admit to it even if you didn't agree 100% with the allegations because it would go away and wouldn't be a problem when you were an adult, right? They said that delinquency charges don't affect your record once you grow up, right?

Well, apparently, that is unless you get in trouble again.

What went on in juvenile court can be used against you as an adult in setting your bail and in determining your sentence for adult crimes.

Now, the First Circuit U.S. Court of Appeals has made a federal case out of it. In U.S. v. Matthews, (Nos. 05-1655, 05-1925, decided August 7, 2007) the court ruled that a Massachusetts delinquency finding could be used as a predicate violent felony to invoke the federal Armed Career Criminal Act ("ACCA") and impose a statutory minimum fifteen-year term of imprisonment. See 18 U.S.C. § 924(e)(1).

And they're not the only ones! The court cites to several other cases in which delinquency findings from various states have been held as valid bases for the imposition of those enhanced penalties.

The case isn't even about the numerous other types of collateral consequences of delinquency and other findings, including immigration, citizenship, driver's license, housing and financial aid issues. Make sure you talk about all of those with defense counsel when considering whether to take a plea deal or how vigorously to contest charges at trial.

"Unruly Schoolboys or Sex Offenders?"

This article shows that what kids may think of as mere "fun" can have serious consequences that could ruin their lives.

What do you think? Is this kind of mischief just fun or something more serious. How would you represent the boys? The girls? Did the school principle or police over-react? What consequences should be considered?

Allegations and investigations

Someone purporting to be a "victim advocate" for DSS wrote to the Arlington (MA) email list with the surname and street name of a "dad" allegedly being investigated for sexual abuse of his children. The writer asserted that s/he had sent the email "OFFLIST" to someone who had asked to be "updated".

The email prompted a flurry of queries and complaints including why the name wasn't on the sex offender notifications that the police department sends out, why the original poster would disclose the information and defending the privacy of the affected family.

Though I was trying to stay away from email other than actual work today, I couldn't resist commenting.

Here is essentially what I wrote to explain the differences between the sex offender info that police departments report to child-involved organizations and the allegations that the original writer said were being "investigated" by DSS:

What was reported on this list is not on the offenders list a daycare provider gets from the APD because the list is of registered sex offenders -- which occurs after conviction of certain "sex crimes" and the posts were about an accused dad, being investigated by the Department of Social Services (DSS).

It doesn't make me question the poster's motives but whether s/he understands the confidential nature of DSS's investigations (even IF s/he only intended to inform one "OFFLIST" correspondent who "asked to be updated").

An allegation that comes to DSS's attention is a VERY FAR cry from being about a "sex offender" who has to register and who would thus be on the list that day care providers and others who provide services to children get from the local police.

Certain professionals are required by law to report and DSS is required to "investigate" whenever there is "reasonable cause to believe that a child under the age of eighteen years is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the child's health or welfare including sexual abuse, or from neglect, including malnutrition, or who is determined to be physically dependent upon an addictive drug at birth". [Mass. Gen. Laws chapter 119, section 51A; see also the Web Resources page of my website.]

I could go on with 30 years worth of anecdotes, regulations and court cases that explain, limit or expand upon what that means and how different it may be from a general public understanding.

Instead, I'll just summarize by saying that "mandated reporters" are often told to err on the side of caution and report even the slightest suspicion; to let the investigation process sort it out. But then DSS is cut a whole lot of slack to not actually conduct any real investigation (and just conclude that if a "mandated reporter" decided to make a report, then it should be "supported") because the law requires them to complete their investigations in 10 days (24 hours if an emergency). (See also my Boston Globe LTE of June 1, 2007 or my blog post about it.)

A large part of my practice is devoted to representing families when DSS seeks to intervene. Feel free to post comments here about your experiences. If you are seeking legal advice, however, remember that this blog is not private and you should contact my office to discuss scheduling a consultation.

Legal Ramifications of Teen Sexuality

A man in Florida owes more than $10,000 in back child support payments in a paternity case involving a 15-year-old girl who he allegedly fathered when he was 16; but who, according to DNA results and the girl's mother, is not his daughter.

He still has to pay.

The state of Florida is continuing to push him to pay $305 a month to support the girl, as well as the more than $10,000 already owed. He spent a night in jail because of his delinquent payments. Why? Because he missed the deadline to legally contest paternity. The paperwork didn't reach him until after the deadline had passed.

To read the rest of the article, click here.

If you want to receive timely notice when someone files against you for support be sure to stay in touch with all your old girlfriends (unless of course doing so would violate a request or court order), submit change of address forms to the post office when you move and consider filing with the putative father registry whenever there is a chance that you may have conceived a child.

Also consider the case of Genarlow Wilson, a Georgia teen who has spent nearly 29 months in prison on a ten year sentence which a judge and numerous commentators have called unjust. Wilson had consensual oral sex with a 15 year old girl at a party when he was 17.

The Georgia statutory rape law was amended to exempt "Romeo and Juliette" cases but only for intercourse, leaving the prosecutor free to press the felony charge against Wilson. To follow his case, click here.

Massachusetts, however, has no such exemption. See Mass. General Laws chapter 265, section 23.

You can be prosecuted for consensual sex with your under-aged partner. You can be forced to pay support for children you did not consent to conceive and even children who are not yours.

Bottom line: Sexuality is complicated and has significant legal ramifications.

Time to declare our independence from the new King George?

The Declaration of Independence: A Transcription
(from http://www.archives.gov/national-archives-experience/charters/declaration_transcript.html)

[MR note: These are the original words. It's scary how much of it has current significance.]

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 migrations 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 harrass our people, and eat out their substance.

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

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 offencesFor 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 Legislatures, 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 Brittish 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.

Students' First Amendment rights take a hit at Supreme Court

While quoting past cases such as Tinker v. DesMoines Independent School District (school could not ban anti-war armbands) and Veronia School District v. Acton (a Fourth Amendment case that went against the student but contains the language that "children assuredly do not 'shed their constitutional rights ... at the schoolhouse gate,'") the U.S. Supreme Court ruled today that a Juneau, Alaska, high school could punish a student for unfurling and refusing to put away a banner that said, "BONG HITS 4 JESUS" at the Olympic torch parade on the public street outside the school.

In Morse v. Frederick Justice Roberts wrote the court's decision (5 1/2 to 3 1/2) noting that it was not unreasonable for the principal to conclude that "BONG HITS 4 JESUS" could "materially and substantially disrupt the work and discipline of the school" in the same way that sexual metaphors in a graduation speech did in Bethel School Dist. No. 403 v. Fraser.

Roberts wrote that Tinker allows for students' rights to not be absolute and this case is distinguishable because the Tinker court did not go through the "material and substantial disruption analysis" that was articulated in Bethel.

Presumably the answer to the question "Do high school students in public schools have the freedom under G. L. c. 71, § 82 to engage in non-school-sponsored expression that may reasonably be considered vulgar, but causes no disruption or disorder?" is still "affirmative" in Massachusetts and that a student in a similar situation would not be able to be punished without having caused an actual disruption in a Massachusetts high school. See the Massachusetts Supreme Judicial Court ruling in Jeffrey J. Pyle v. School Committee of South Hadley, 423 Mass. 283, 667 N.E.2d 869 (1996).

Non-parent visitation

Today's announcement of the Massachusetts Appeals Court's decision in Alice SMITH v. Beth JONES (pseudonyms) citing the SJC's A.H. v. M.P., 447 Mass. 828 (2006), and the U.S. Supreme Court's Troxel v. Granville, 530 U.S. 57 (2000) cases prompts my observations on the subject of visitation by non-parents and the de facto parent doctrine.

The Smith and A.H. cases were ones in which the courts denied de facto parent status to former female partners of the children's adoptive and birth mothers (respectively). The cases remind us that sometimes someone who is not the legal parent of a child may have a right to continued contact with the child over a "fit parent's" objections, when that person has a consensual, co-parenting relationship with the child.

Jones was found not to want a co-parent relationship with Smith even when they were together, so Smith could not enforce one once they broke up. Though M.P. wanted to share parenting with A.H., A.H. did not submit the co-parent adoption documents that A.H. urged her to and didn't really participate as much in parenting as their co-parenting plan had envisioned. When they broke up, the courts were not going to force the mothers with their children to let the non-parent partner maintain contact.

The doctrine has also arisen in a couple of my care and protection / termination of parental rights cases in which DSS wants to terminate custodial rights of the relatives from whom it has removed custody. I have argued that though the de facto parent doctrine does not apply between the state and a relative custodian, the custodian with a relationship with the child and from whom DSS took the child must be given the rights of a parent to reasonable efforts at reunification and full standing to contest DSS actions in court.

Troxel was a grandparent visitation case in which the Washington State statute giving grandparents rights to seek visitation at any time was found to be too broad an infringement on the rights of a "fit parent" to determine whom they had to let their kids visit with.

The Massachusetts SJC interpreted its grandparent visitation statutes as not violating parents rights in Blixt v. Blixt, 437 Mass. 649 (2002). I was successful in getting a grandmother visitation with her granddaughter who was in DSS custody through a CHINS case over the mother and step-father's objections citing Blixt and my client's long-term excellent relationship with the teenaged granddaughter.

It was ironic to me in that case that DSS would keep a child in custody over her mother's objection but required us to go to court several times to overrule the mother's unreasonable objections to her mother visiting with the teen.

Boston Herald posts State Employee Payroll

Under the title "Your tax dollars at work: 2007 State Employee Payroll" the online version of the Boston Herald has published a 5312 page (20 names per page) chart of "the state payroll as of April 2007".

It lists "projected salaries and earned income from last year" as "provided to the Herald by the state's Comptroller's Office." The heading says, "E-mail any inquiries to joed@bostonherald.com and check for updates in the City Desk Wired blog."

The listing provides very interesting information and comparisons. It can be searched by last name, and/ or department and can be sorted by: Last Name, First Name, Standard Hours, Annual Rate and 2006 Earnings. I noted that the 20 top paid employees in the State are all at UMass, including the head basketball coach (at number 3).

Amongst the department that can be viewed are the Department of Social Services, Department of Education, Department of Mental Health, Department of Retardation, Attorney General's Office, District Attorneys' offices, Department of Correction, specific courts and the Committee for Public Counsel Services.

There is one employee at DSS who makes more than the commissioner and there are social workers who nearly double their base pay (I guess) by working the hotline. The list of job titles within each department are also varied and interesting.

Here's the link for the top page of the list: http://news.bostonherald.com/localRegional/payroll

Praise for Attorney Rich's blog

Family Law Attorney Deborah Sirotkin Butler, of Arlington, and Charley Blandy one of the founders of the Blue Mass Group (site for "reality-based commentary on politics and policy in Massachusetts and around the nation") posted favorable notes about this blog at http://www.bluemassgroup.com/showDiary.do?diaryId=7545 on June 5th.

Guest Commentary - GLAD THERE IS A NEW COMMISSIONER AT DSS

Attorney Deborah Sirotkin Butler of Arlington writes:

While Bachrach [in the Boston Globe article that Atty. Rich wrote about in the previous post] laments the ouster of Harry Spence from DSS, and is so so full of praise that his column sounded like an obituary, I am glad to see change at the top of DSS.

Why?
Harry Spence for all his alleged "vision" had no training or experience in social work, child psychology or indeed any psychology, child development, or family dynamics. It showed.

Under Spence, in hundreds of cases I never saw any input from parents, therapists, or indeed, counsel into the so-called "Service Plans" that are supposedly there to assist families. What I did see is a commitment to speedy adoptions to such an extent that it looked like a deliberate desire to move children from economically struggling parents to the well-to-do.

Middle class families who already owned homes received $1400 per month or more for foster care while the homeless parent who lost their child due to homelessness received nothing.

I hope that in Angelo McClain, DSS will receive a Commissioner who understands good case work and supports that case work - rather than spending more on consultants than social workers as Commissioner Spence did.

According to testimony I heard at the House Committee on Child Abuse and Neglect, Spence allocated $16 million in 2006 to outside consultants- who were no more than extra bureaucracy - and only $11 million for case work by all DSS social workers.

Under Spence, it was harder each year to get the services the children and parents I represented needed, no matter how much more money DSS received.

On behalf of the children and parents of the Commonwealth, I hope that Commissioner McClain will follow our statutes and have TEAM meetings to design Service Plans that meet the needs of families - under Commissioner Spence that never happened in all my years doing child welfare cases. Not once.

"Assessing impact at the DSS"

On June 1, 2007, the Boston Globe published Atty. Rich's Letter to the Editor (with another) under the title above.

Here's the letter:

RE GEORGE Bachrach's May 25 op-ed, "Against odds, Spence transformed lives":

I take issue with Bachrach's implication that caseload problems at the Department of Social Services are entirely a function of underbudgeting.

In my 25 years as a lawyer representing children and parents involved with DSS, I have seen that a large part of the agency's caseload problem comes from ineffective triage, failure to use existing family and community supports, and creation of distrust in the families that come to its attention.

DSS tells parents, "We are here to help," but the only "help" it offers are multiple meetings with its workers, one-size-fits-all service plans that refer parents to therapy, and a threat of removing the children to foster care if there is insufficient cooperation or "progress."

DSS exacerbates the problem by insisting that outside professionals report the slightest suspicion of abuse or neglect.

If DSS wants to cut its caseload, it should screen these reports more effectively instead of pressuring professionals who may legitimately think that DSS involvement is the last thing that a slightly troubled family needs.

© Copyright 2007 Globe Newspaper Company.

It's in the Globe online at http://www.boston.com/news/globe/editorial_opinion/letters/articles/2007/06/01/assessing_impact_at_the_dss/

School does not have to be effective in stopping peer-on-peer sexual harrassment

Yesterday, in Porto v. Town of Tewksbury, __ F. 2d __ (CA1, Nos. 06-1994, 06-2139) the First Circuit, U.S. Court of Appeals, overturned a jury verdict from the U.S. District Court for Massachusetts that had awarded the plaintiffs $250,000 plus attorneys fees for not effectively stopping (special ed) peer-on-(special ed) peer sexual activity.

The First Circuit agreed with the Town that the plaintiffs had not proven that Tewksbury’s Wynn Middle School’s failure to predict continuing acts on the plaintiffs’ child by the peer constituted "deliberate indifference" to the "sexual harrassment".

The court ruled:

Under Title IX of the Education Amendments of 1972, a recipient of
funding from the United States Department of Education may be liable for damages
if "its deliberate indifference [to peer-on-peer sexual harassment] 'subjects'
its students to harassment." Davis v. Monroe County Bd. of Educ., 526 U.S. 629,
644 (1999). A funding recipient is deliberately indifferent to
student-on-student harassment when "the recipient's response to the harassment
or lack thereof is clearly unreasonable in light of the known circumstances."
Id. at 648. [T]he deliberate indifference must, at a minimum, 'cause [students]
to undergo' harassment or 'make them liable or vulnerable' to it." Id. at 645
(alteration in original) (quoting Random House Dictionary of the English
Language 1415 (1966)). In addition, the acts of sexual harassment must be
"known" to the funding recipient. Id. at 647. Finally, the harassment must be
"so severe, pervasive, and objectively offensive that it can be said to deprive
the victims of access to the educational opportunities or benefits provided by
the school." Id. at 650.

Further citing Davis, the decision went on to say that the legal standard "does not require funding recipients to remedy peer harassment. Davis disapproved of a standard that would force funding recipients to suspend or expel every student accused of misconduct. All that Davis requires is that the school not act clearly unreasonably in response to known instances of harassment."

The whole opinion is available on the First Circuit’s website: www.ca1.uscourts.gov

A "Lite Brite" moment

On March 31, 2007, the enhanced punishment provisions of "An Act Further Regulating Driver Education and Junior Operator’s Licenses" (signed January 3, 2007) went into effect. (See http://www.mass.gov/legis/laws/seslaw06/sl060428.htm)

"State officials" said, "The new law is meant to create a zero-tolerance environment for speeding or other unsafe driving by teenagers." ("Young drivers face stiffer penalties starting today," Boston Globe, 3/31/07; http://www.boston.com/news/local/articles/2007/03/31/young_drivers_face_stiffer_penalties_starting_today/)

On Saturday night, while discussing the absurdity of a law that sends a polite, teen who was only going 7 miles an hour over the limit to "Road Rage" classes; WTTK's Michael Graham referred to it as "a Lite Brite moment".

Meanwhile, last night, Peter "Zebbler" Berdovsky and Sean Stevens were on Fox News Channel's "Geraldo at Large;" still apologetic for the inconvenience the ATHF Mooninites caused in the Boston area. Zebbler urged us to have open discussions about the causes of the fear that led to an L.E.D. cartoon causing roads, waterways and public transportation to be closed. Stevens suggested that we need to consider whether we want more love or more fear.

I have found that often the administration of zero tolerance policies result in actions with zero intelligence. I hope we can add some intelligence to the Junior Operator’s Licence policy and the justice system overall by looking to Restorative Justice principles (as the AG mentioned in her nolle prosequi documents in the Charlestown District Court and at her May 11, 2007 press conference). Restorative Justice and other diversion programs examine the specific needs of offenders like the teen whom Graham was discussing.

It would serve our society better if we were to explore opportunities for expanding justice, tolerance and education. We need to shift the emphasis from fear and punishment toward "a better way" of dealing with danger and harm. (See "Your View: Another way to handle hazing," Robert E. Heskett, New Bedford Standard-Times, May 22, 2007, http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=2007705220314.)

It's not KidLaw but I couldn't resist

After seeing this post from my friend and colleague Atty. Marie Saccoccio on the MassPrivateCounsel yahoogroup (for criminal and other defenders), I couldn't resist posting it here. (Sorry I don't know Marie's original source, so I can't cite it right now.)

Los Angeles County, California v. Rettele, 550 U.S. ___ (#06-605 , decided May 21, 2007)

"When the Court gets jittery, it reaches for its equivalent of a nicotine patch to calm its nerves: a good old per curiam summary reversal of the Ninth Circuit. Everyone on First Street is a little calmer after Monday.

"The plaintiffs in this case, who are white, sued under § 1983 after officers mistakenly searched their home looking for 4 black suspects. Turns out the plaintiffs had bought the home from the suspects shortly before the police got their search warrant.

"Just as it only rains when you forget your umbrella, going to sleep naked more or less guarantees that the cops will arrive that night. And so it was here. The officers rousted the plaintiffs out of the bed and forced them to make like Greek statues for 3 minutes (but probably minus the placid expressions on their faces), while police searched the rest of the house.

"The CA9 found that this treatment unnecessarily denuded the plaintiffs of their dignity and therefore their Fourth Amendment rights. Proving that turnabout is fair play, the CA9 stripped the officers of their qualified immunity. The court of appeals reasoned that once the officers saw the white occupants of the house, they should have known they had the wrong house and stopped the search.

"It took the Court 7 pages to set the law aright. Police may reasonably detain a house’s occupants during a search, to protect officer safety and the integrity of the search. Here, they did not have to abandon their search simply because they encountered persons of a different race than the suspects—“the presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well.”

"This was the rare case in which the CA9 was not politically correct enough, for the Court had to instruct that “it is not uncommon in our society for people of different races to live and work together”, or for that matter, to commit crimes together.

"Finally, the plaintiffs’ brief au naturel detention was reasonable because the suspects were believed to be armed and could have been hiding a gun under the bed covers. There was no allegation that the police left plaintiffs unclothed any longer than necessary to secure the room.

"JPS (+RBG) penned a two-page concurrence in the judgment, blasting the CA9 for issuing a hotly contested 2-1 decision as an unpublished opinion (a well-known CA9 tactic for hiding summary reversal candidates). He also restated his long-held view that the Court should not decide the constitutional merits of a case when it can more easily be resolved on qualified immunity grounds, as this one could. "

What's in store for DSS?

Sean P. Murphy wrote in his article "New DSS chief emerged from his own troubled youth" in today's Boston Globe that Angelo McClain, the newly appointed Commissioner of the Massachusetts Department of Social Services, said in a telephone interview, "If we can build a system that allows the dedicated and talented people on the front lines to do their work, then children and families can reach their potential". (http://www.boston.com/news/local/massachusetts/articles/2007/05/24/new_dss_chief_emerged_from_his_own_troubled_youth/)

I agree that there are many "dedicated and talented people on the front lines," but; I wonder if "a system that allows [them] to do their work" implies further extensions of the laissez faire holdings of the 1995 Supreme Judicial Court cases of Care and Protection of Isaac and Care and Protection of Jeremy which essentially preclude judges from effective oversight of the care of children in the custody of DSS.

Shake up coming at DSS

According to today's Boston Globe, it is expected that Governor Patrick will replace Department of Social Services Commissioner Harry Spence. The article (linked below) says that Spence will be replaced by "Angelo McClain, executive director of Value Options New Jersey, the private entity that handles the state's behavioral health services for children.

"In the 1990s, McClain worked in Massachusetts as vice president of the Massachusetts Behavioral Health Partnership ... ."

Not to say that Spence has been good (or bad) for DSS, but my recollection is that it was in the 1990s, when the behavioral health partnership began, that services for children with behavioral health issues became harder to obtain and harder for advocates and juvenile court judges to effectively intervene to get effective treatment for them.

I don't remember McClain from when he was in Massachusetts before. We'll have to wait to see if the "shake up" is for the benefit of the children and families of the Commonwealth.

http://www.boston.com/news/local/articles/2007/05/23/patrick_is_poised_to_detail_shakeup/

Your opinions sought

Yesterday morning on Fox & Friends, Peter "Zebbler" Berdovsky and a legal analyst from NYC were asked if "the punishment fit the crime".

Since there was NO crime and NO punishment, I won't ask that question; but, rather whether, considering what happened (as summarized below), you think the resolution was fair:

- You remember the traffic delays and concern when the media called what was going on in and around Boston on January 31, 2007, a "bomb scare" or "terror alert".

- Berdovsky and Sean Stevens were arrested that night, charged with a felony and a misdemeanor, held overnight and released from Charlestown District Court on bail the following morning.

- Their families were required to tie up $5000 bail for 2 1/2 months while the defendants' charges were pending.

- The costs of the public safety operations were estimated at $1.2 million.

- Turner Broadcasting (parent company of the Cartoon Network, which hired Interference Inc., which in turn hired Berdovsky & Stevens) apologized and paid $2 million to the Cities of Boston, Cambridge, Somerville & Charlestown and to the MBTA Police.

- Since Berdovsky and Stevens did not have "intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons" (http://www.mass.gov/legis/laws/mgl/266-102a.5.htm) and since there was a recognized, legitimate purpose, protected by the First Amendment, in the actions they took, they should not have been able to be found guilty of the charges brought.

- Berdovsky performed 80 hours of community service and Stevens performed 60 hours at the Spaulding Rehabilitation Hospital (with excellent reports from SRH of their work and commitment there).

- They both apologized for the fear, confusion and inconvenience that the ad campaign caused here but that they did not foresee and could not have anticipated.

- On May 11, 2007, the Attorney General nolle prosequied the charges, ending the case.

- She asserted that the resolution was better for all involved than would have been the result if they had proceeded to trial rather than the "Restorative Justice" (see http://www.macucc.org/emj/restorative_justice.htm) disposition that was agreed upon.

So, was it a fair resolution?

Or, in Restorative Justice terms: Did it return the injured parties, the actors and the community to their positions before the harm and restore them to right relationship with each other?

[In future blog posts I will be relating the facts of children's and family law cases (mine and others) and seeking your opinions about the fairness of those resolutions.]

For Artists in Ad Scare, Life Goes On

Peter Berdovsky (left) and Sean Stevens, at the center of the Cartoon Network scare, told their side of the story yesterday. (PAT GREENHOUSE/GLOBE STAFF)

By Michael Levenson, Globe Staff, May 19, 2007

CAMBRIDGE -- Their star power, they realize, is fading. Rain-soaked and picking at a plate of french fries, they said they are broke. Thursday, they were already through security at Logan International Airport, on their way to Rockefeller Center in Manhattan, when they were dumped by the "Today Show."

Three-and-a-half months after they scared the city by installing electronic advertisements on highways and bridges, Sean Stevens and Peter Berdovsky are crash-landing back to reality, to their old lives as penniless artists and aspiring musicians, sharing an apartment and studio in Charlestown.

The adjustment has not been easy for the wise-cracking duo, who gained notoriety for holding a press conference after their arraignment in which they refused to talk about anything but hair. But now Attorney General Martha Coakley has dropped criminal charges, which could have put them behind bars for five years. Late-night comedians have abandoned riffs about terrorism and the Cartoon Network.

And Berdovsky and Stevens said yesterday they like it that way. Notoriety, they discovered, was a real bummer.

"It became this extreme stress, to a point where I think both of us had these months where we just didn't want to deal with anything, and we just wanted to curl up into a ball and sleep somewhere for days and days and days," said Berdovsky, sipping a Sam Adams at the Middle East Restaurant in Central Square.

In their first extended interview, Berdovsky, 27, and Stevens, 28, lashed out at the news media, railed against authorities, and expressed some remorse for their actions. "A lot of people were under the impression that we didn't care about the people of Boston, and that's furthest away from the truth," Berdovsky said.

"We are the people of Boston," said Stevens, chiming in. "I've lived here for my whole life. Peter's been here for 10 years."

Berdovsky, with his long dread locks, and Stevens, with his shaggy page-boy cut, have been friends for four years, since they were the last guests dancing at a party. They share a penchant for at-times rambling soliloquies.

"Everybody at some point dies, and we need to focus on making our lives as good as possible and maximizing the most art-joy-filled world that we possibly can, for the people who come after us," said Stevens, expounding on his world view, as Berdovsky listened intently. "That's what life is. And that's what we've pretty successfully done for the last several hundred thousand years."

In January, they put up the lighted electronic ads for a show called "Aqua Teen Hunger Force." They wanted to make $300 each and thought the ads would make people happy, they said.

But the ads were mistaken for possible bombs on Jan. 31, and police shut down roads and subway stations. At first, Berdovsky took his video camera and filmed the police in Charlestown. He said he did not know the signs were causing the scare. When he realized they were , he said, he called Interference. Inc, the marketing firm that hired him, and they told him to sit tight.

Within hours, he and Sevens were arrested. Coakley charged them with placing a hoax device in a way that causes panic, which carries a maximum sentence of five years in prison, and a misdemeanor count of disorderly conduct. She and other officials denounced them as irresponsible hoaxers who had terrified the city.

"It's depressing, because for me I know I'm all about peace and love, truly, and to have me be in jail for something that I would never, ever, ever do, is just painful," Berdovsky said.

"It felt like a slap in the face," Stevens added.

After their arraignment, they said they chose to talk about hair to thwart what they called a fear-mongering media. The stunt angered many who said Stevens and Berdovsky appeared callous. But it was broadcast nationwide and picked up by comedians. Stevens and Berdovsky said they were deluged by thousands of e-mails and well-wishers.

"Ninety percent of them said: 'You are my hero. I worship you,' " Berdovsky said. "I'm not kidding. That's what it was, and I didn't mean to put myself in this position, but in all honesty it was very refreshing after seeing myself portrayed as a villain on national TV."

Last week, Coakley dropped the charges after Berdovsky performed 80 hours and Stevens 60 hours of community service at Spaulding Rehabilitation Hospital. They designed a mural and helped maintain the hospital's docks on the Charles River. Now, Berdovsky and Stevens said they want to return to their old routines, making music and art.

"Our attitude toward everybody is just one of love," Berdovsky said. "We want to be loved, and we want to love other people."

Michael Levenson can be reached at mlevenson@globe.com.

© Copyright 2007 Globe Newspaper Company.

http://www.boston.com/news/local/articles/2007/05/19/for_artists_in_ad_scare_life_goes_on/

Boston Mooninite Charges Dropped

Berdovsky and Stevens (pictured at left) were arrested on the day of the incident (1/31/07) and charged with placing a hoax device to incite panic, a felony charge that carries a five-year maximum sentence, and one count of disorderly conduct, a misdemeanor.[17] At their arraignment on 2/1/07 Both pleaded not guilty to the two charges and were later released on a $2,500 cash bond.[2]

At the arraignment Assistant Attorney General John Grossman claimed that the two were trying to "get attention by causing fear and unrest that there was a bomb in that location."[20] Michael Rich, the lawyer representing both men at the time, disputed Grossman's claim, asserting that even a VCR could be found to fit the description of a bomb-like device.[20] Judge Leary said that it will be necessary for the prosecution to demonstrate an intent on the part of the suspects to cause a panic. The judge continued "It appears the suspects had no such intent, …but the question should be discussed in a later hearing." [20]

A small crowd of supporters gathered outside of the courthouse that day to protest the perceived overreaction by authorities. At a press conference held outside of the courthouse following their release on bail, Berdovsky, Rich and Stevens refused to comment on the case. Berdovsky and Stevens instead insisted on discussing only hairstyles of the 1970s, prompting annoyed comments and accusations of apathy from the press.[8]

Rich and Berdovsky had Attorney Walter Prince and his associate Attorney Jeffrey Pyle of Prince, Lobel, Glovsky & Tye join the defense team on behalf of Berdovsky and negotiations ensued with the Massachusetts Attorney General's office. Between subsequent court appearances on March 7 and 30, 2007, Rich introduced the concept of Restorative Justice (see http://www.macucc.org/emj/restorative_justice.htm) to the negotiations. Bersdovsky and Stevens voluntarily performed data entry, clean up, graphic design and video editing work for Spaulding Rehabilitation Hospital between March 30th and May 10th.

On May 11, 2007, the prosecutors dropped the charges after the men completed 60 and 80 hours of community service and read apologies in court. (See http://www.ago.state.ma.us/sp.cfm?pageid=986&id=1889 and http://www.ago.state.ma.us/filelibrary/Nolle%20Prosque.MP3) [22]

http://en.wikipedia.org/wiki/2007_Boston_Mooninite_Scare

The infamous "Hair Styles of the 70s" Press Conference

The two defendants, Sean Stevens and Peter Berdovsky, staged a "press conference" with the media after their plea of NOT GUILTY. Defending Attorney Michael Rich had advised his clients NOT to discuss the case with anyone until the case was resolved. Although the event was covered by all major media channels, by refusing to answer questions about anything other than hairstyles of the seventies the two defendents succeeded in keeping the details of their case confidential and emphasized the absurdity of the media response.

http://www.youtube.com/watch?v=wR_29Oz93mk

Rich Defends the Boston ATHF Team at Arraignment

See what CNN reported about the case of the Boston area "Aqua Teen Hunger Force Bomb Scare". The Cartoon Network's inventive marketing campaign was mistaken for a bomb scare that shut down the city of Boston for hours. Attorney Michael L. Rich was the defense attorney for the two men who were arrested for installing the graphic devices on location.
http://www.cnn.com/2007/US/02/01/boston.bombscare/

Welcome

Welcome to the interactive pages of the Law Office of Michael L. Rich.

Michael Rich is an experienced Massachusetts lawyer concentrating in Children's and Family Law; especially accusations of abuse or neglect of a child or children.

Visit the official Law Office website at www.michaelrichlaw.com