Monday, June 25, 2007

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).

Friday, June 22, 2007

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.

Sunday, June 10, 2007

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 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:

Thursday, June 7, 2007

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 on June 5th.

Tuesday, June 5, 2007


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.

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.

Friday, June 1, 2007

"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