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?

Families are too important to fail.

In an op/ed piece in today's Boston Globe, Vulnerable children are suffering twice, the chief of Ambulatory Pediatrics at Boston Medical Center and the executive director of The Children's League of Massachusetts tell the story of a mother helped by the Department of Children and Families despite budget cuts.

Despite their increasing caseloads, the late-night DCF worker and a supervisor came to assess the situation. They knew something we didn't - that this wasn't the first time this mother, a depressed refugee who had been through God knows what before arriving in the United States, had told a caregiver that she was in trouble. By the end of the evening, the mother was in the hospital being treated for her depression, and the children were safe in an emergency placement. The next day, with the mother's agreement, they were placed with a family friend. Now, the mother is out of the hospital with daily supports and the children are back home.

From my perspective as an attorney who has seen way too many cases in which the only help a troubled family received from DSS was to have their children placed in foster care and to face an unnecessarily long and arduous process of getting them back, this case may represent an unintended benefit of DCF's budget and caseload problems. All too often, in my and my colleagues' caseloads, a mother with a history with the Department mentions to a "caregiver" that she is feeling overwhelmed only to have had DSS place her kids in foster care and put them on an adoption track because the mother couldn't "correct" her condition quickly enough.

The "vulnerable children" piece starts by saying the mother brought her children into the clinic "recently." By a couple paragraphs later they are "back home". More often, in my experience, the other parent or a caring family member, let alone "a family friend" is denied the opportunity to help with their troubled relative's children when troubles are brought to the attention of DSS/DCF. It seems to me that not having this repeat customer's kids be subjected to a longer stay in foster care with strangers might be an unintended benefit of DCF's increasing caseload and decreasing budget. Maybe DCF's budget crisis helped these children get home more quickly.

If increasing caseloads and a tightening budget cause DCF workers and supervisors to give additional thought to whether children need to be in foster care and whether their families can be helped instead of being discarded while the children get a brand new "forever family," it might go a long way toward making DCF into a valuable safety net to which troubled parents feel safe turning for help instead of a feared monster set only on gobbling up their children and spitting out the parents who love them.

The authors end by saying:

Citibank, AIG, and the automakers have received unprecedented amounts of money from the federal government because they are deemed "too big to fail." We need to remember to look out for those who are "too little to fail."

To that I would add that families need to be thought of as "too important to fail" and that therefore more of them may need to be treated with the respect and true assistance that this refugee mother apparently received instead of keeping them from their families and rushing them to "permanency" in non-family placements.

Read the rest of the Globe op/ed here.

Whom is this law supposed to benefit?

The Associated Press reported on September 26, 2008, that on September 24th in Nebraska, 11 children (9 of them siblings) were abandoned at two different hospitals under the state's so-called "Safe Haven" law. (See the full Boston Globe story here.)

According to the article,

Todd Landry, director of Health and Human Services' division of Children and Family Services, said that in nearly every case, the parents who left their children felt overwhelmed and had decided they didn't want to be parents anymore.

In my opinion it is disastrous to let children be dumped like so much not-worthy-of-my-time-to-repair-but-too-good-for-the-trash "Free-cycle" material, especially when states can achieve the same goal by just making it clear that they do not intend to prosecute troubled parents who seek help when they are overwhelmed with child-rearing.

Massachusetts has a "Baby Safe Haven Law" but it only applies to babies 7 days old or less. It is still problematic, though, because it permits the voluntarily-abandoning-parent to do so without providing any information about him/herself or the child. There is then no ability to notify the other parent nor any other family member who might be interested. The babies so abandoned are turned into complete foundlings without any birth-family history, medical history or sense of place in the world that can be difficult to overcome even in the most caring of adoptive homes.

As a society we should be able to help struggling parents and their children without the need to say "Children Wanted - No Question Asked."

WHAT?@@!??

A young mother's apparently disturbed young friend steals her baby Thursday night so on Friday

the Department of Social Services took custody of the baby and his 16-month-old sister, and Sterrett's third child, a 2-year-old boy, was placed with relatives, according to a spokeswoman for the agency.

DSS previously investigated Sterrett for alleged neglect involving one of her other children. That case was closed last year, according to Alison Goodwin, a spokeswoman for DSS, who gave no details.

Does DSS not realize, like the Texas authorities in the FLDS case didn't realize, that they need specific, articulable "reasonable cause to believe that the removal of the child is necessary to protect him from further abuse or neglect"? See Mass. General Laws chapter 119, section 51B (emphasis added). Doesn't "further" imply that there had to have been some abuse or neglect in the first place?

Nothing in the Globe article about poor Ms. Sterrett's troubles indicates that there was any evidence of

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

which is the applicable statutory definition from the infamous section 51A.

It's hard to tell for sure from the Globe article, but it seems as if this is another case of DSS breaking up a family in the name of protecting children from a parent they don't need protection from. Will the Globe report on Tuesday, after Ms. Sterrett's 72-hour hearing , if she gets her children back from the juvenile court judge? Will DSS apologize or even have its spokesperson report that they were wrong if Ms. Sterrett does get her children back?

The Fourth Amendment to the U.S. Constitution gives even young mothers the right not to have their children seized by the state without probable cause.

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.

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.