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.