Arlington, MA, Police Arrest Innocent Man in New York

Not really.

But the reporting of the arrest here: http://www.yourarlington.com/archive/news-archive/374-police1/5895-abuse-51813 and here: http://arlington.patch.com/articles/arrest-made-in-arlington-boys-girls-club-sexual-abuse-investigation bumps up against one of my pet peeves.

Mr. ___ is innocent until proven guilty.

If he is "innocent", why did they arrest him? What they are talking about is the constitutional presumption of innocence. The presumption of innocence says that we must treat a criminal defendant AS IF he is innocent until he is proven guilty. Mr. ___ may actually be innocent. His arrest on a warrant just means that the police thought and convinced a judge or magistrate that they had probable cause to believe he had committed a crime. What the APD should have said in its press release, and what I will say here, is "The charges are only allegations at this point. Mr. ___ is presumed innocent until proven guilty."

In actuality, if someone IS actually innocent, he will remain that way EVEN IF he is convicted in court. Unfortunately, we have way too many incidents of innocent people being convicted or even pleading to crimes to ignore the irony of misrepresenting the constitutional provision.

Innocent people are convicted but they remain innocent nonetheless.

Protected by confidentiality laws. Really?

What part of "This case and the details related to the newborn are protected by confidentiality laws."?

www.baynews9.com/content/news/baynews9/news/article.html/content/news/articles/bn9/2013/5/15/citrus_county_mother.html

They include a picture of the mother, her name, what she is in jail charged with and that her newborn was taken into protective custody by FL DCF. The only part of the case details they did not include was the name of the "family members" with whom the infant has been placed.

Are there confidentiality laws protecting anyone in the case or not?

WAIT - here's another one:

www.claytodayonline.com/ee/claytoday/en/component/fullstory/20130516_020_art_5/teen-held-on-sex-charge

Also Florida.  A local doctor made a report to DCF and the police. It was the doctor, "whose name was not released under Florida’s confidentiality laws"!

As to the teen who is the alleged perpetrator, his name, the town he lives in, his picture and the offense he is being charged with were all reported.

Why are reporters, especially mandated reporters, having their identities protected? Where is the protection for the accused? For the children involved in the cases?

10 Things You Should Know About CHINS

1. There is no such animal anymore.

On November 5, 2012, a new law went into effect that revamped CHINS and did away with that term. The new law was supposed to be called FACES (Families and Children Engaging in Services) but is instead going to be known as CRA (Children Requiring Assistance). Read AN ACT REGARDING FAMILIES AND CHILDREN ENGAGED IN SERVICES here: Session Laws Acts 2012 Chapter240.

2. Definitions changed.

The new statute applies to children between the ages of 6 and 18. The old law only went up to 17. Since the mandatory school attendance law only requires school attendance until age 16, school-based applications must still be dismissed when the student reaches age 16.

A Runaway is a child between the ages of 6 and 18 who repeatedly runs away from the home of a parent, legal guardian or custodian.

The other home-based category makes clear that the rules violations to trigger an application must be important ones. An application may be filed for a child between the ages of 6 and 18 who repeatedly fails to obey the lawful and reasonable commands of a parent, legal guardian or custodian, thereby interfering with their ability to care for and protect the child.

A Truant is a child who when not otherwise excused from attendance in accordance with lawful and reasonable school regulations, willfully fails to attend school more that eight school days in a quarter.

The other school-based application is for a child who repeatedly fails to obey lawful and reasonable school regulations.

3. Police officers may no longer file applications.

Mass. General Laws chapter 119 § 39E (which will be here: www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXVII/Chapter119/Section39E but has not yet been updated with the new statute) lists those who may file an application for assistance as "A parent, legal guardian, or custodian of a child having custody of such child." Custodian and having custody are additions to the statute. Practitioners question if "having custody" applies to a parent. Some courts were not letting non-custodial parents file under the old CHINS law.

Police officers are no longer listed in those who may file. The new statute no longer requires a certified supervisor of attendance to file school-based applications. Applications may be filed by a school district. Practitioners question whether that means a school district employee or if a school district may only be represented by an attorney.

4. The bail provisions of the old CHINS law were eliminated.

There is no reference to bail in the new CRA law. The court may place the child in the temporary custody of DCF but the order is only good for 15 days at a time and may only be renewed twice for a total of 45 days.

5. Arrest is no longer allowed.

If a child fails to obey a CRA summons or the a police officer has probably cause to believe a child is a runaway AND will not respond to a summons, s/he may be taken into custodial protection.

BUT custodial protection does not allow police to bring child to the police station or a lockup (not even the juvenile court detention facility) and cannot be handcuffed or shackled.

Court orders for to bring a child to court for failure to obey a summons are not to be entered into the state's Warrant Management System (WMS).

6. CRA cases are not be placed on CORI, CARI, BOP or WMS.

The cases are not to be entered on the child's Criminal Offender Record Information, Court Appearance Record Information, Board of Probation record or Warrant Management System. If the application is dismissed before a fact-finding hearing it is supposed to be expunged. No record "shall be maintained or remain active" after the case is dismissed.

7. Parent applicants may now dismiss their petitions.

Overturning the In re Gail, 471 Mass. 321 (1994) case, which said that the petitioner-mother could not dismiss her CHINS petition, the new CRA law authorizes any party to file a motion to dismiss until the disposition hearing. The judge "may" order dismissal if it is in the best interests of the child or if all parties agree.

8. No more jury trials.

The new statute specifies that the fact-finding hearing is before a judge, not a jury. When the legislature did away with trial de novo in every other area of law, it left it in the old CHINS statute. The new CRA law does away with the child's ability to have a second trial in a jury session. Instead appeals are no longer whole new trials but will be decided on issues of law in the single justice session of the Mass. Appeals Court (under M.G.L. c. 231, § 118).

9. Disposition is a two-step process and is time-limited.

Under the new CRA law the court must convene and may participate in an on-the-record "conference" of the probation officer, petitioner, school, parent, child, child's attorney, DCF and "any other person who may be helpful in determining the most effective assistance available to be offered to the child and family." The probation officer must write recommendations and other persons may submit written recommendations to advise the court on appropriate treatment, services, placement, conditions and limitations.

The first disposition order may last for not more than 120 days. It may be extended after hearing for 90 days. A maximum of 3 extensions are allowed for a total of 390 days.

10. Links to resources.

The Massachusetts Juvenile Court Department issued a Handbook for Parents, Legal Guardians, and Custodians in Child Requiring Assistance Cases it is no longer available here, but can still be found by searching for it by title.

The Children and Family Law Program of the Committee for Public Counsel Services has compiled a set of links which includes the Juvenile Court Memorandum of October 25, 2012 and links that let you download "a detailed memorandum discussing the new law," "a short summary of the changes," and "the sections of Chapter 119 that pertain to status offenses, as it will read on November 5, 2012"; or go here to access the links from the CAFL News page.

Special thanks to Attorney Michael Kilkelly who prepared a lot of the CAFL materials and presented them in a series of workshops for interested attorneys.

When DCF Comes a-Calling: How to Try to Stay Out of the Fire When You're Already in the Frying Pan

In the article "Attorney Participation in Family Partnership Meetings," Sara R Brennan, NACC Legal Intern, wrote:

Without the assistance or guidance of an attorney, many parents volunteer information that can later be used against them, without a complete understanding of the consequences some of their statements can have. Parents may also agree to safety plans that can later be used against them in proceedings if they do not comply with every single provision of the plans. Furthermore, parents are sometimes forced to agree to out-of-home placements for their children, usually without a full understanding of their options.

e-Guardian v. 34, no. 7, National Association of Counsel for Children, August 2012, pp. 1-2.

The article proposes that state courts should exercise their discretion in favor of appointing attorneys to represent parents during the initial, pre-court stages of child protective services (CPS) investigations. It mentions two programs that provide pre-petition representation and suggests that NACC members disseminate information about solo practitioners who provide pre-petition representation.

I provide representation to parents in Massachusetts facing those frightening calls and letters from CPS that a worker "needs" to meet with the family to discuss an allegation that their child(ren) has(have) been abused or neglected. I work with families during Initial Assessments, Investigations and Assessments and represent parents at Fair Hearings, in court and at other aspects of the "variable response," Integrated Casework Practice Model.

A couple weeks ago, I fielded a call from a parent in just that position. S/he was being investigated by the Massachusetts Department of Children and Families [DCF, Massachusetts's CPS agency, formerly known as the Department of Social Services (DSS)] for the second time in as many months. S/he couldn't afford an attorney and so, as I had done for others, many times before, I gave the caller a free, (not so) brief, initial consultation. I say "(not so) brief" because, after our one and a half hour phone call, I spent another half hour writing an email to send links to the Mass. DCF regulations and other material I had summarized on the phone.

The parent who called from a remote part of the state, had, without representation, just gotten through an "Initial Assessment" for an allegation of neglect with a determination of "unsupported." S/he was now being subjected to an "Investigation" by the same intake worker (who was determined to vindicate him/herself by "supporting" this abuse / neglect report from a "mandated reporter," even if the children were no more at risk than they had been the previous month). The caller to my office was worried about what being investigated means that was different than the previous initial assessment and what the consequences of a determination that s/he had neglected his/her children would be.

Since it did not seem that s/he was at risk of having his/her children removed from his/her care even though the DCF worker said it was definitely "illegal" to leave children alone in a car under any circumstances, I started by telling him/her:

Stay calm about your DCF matter and don't let the investigator trick you into saying anything about being overwhelmed or stressed out by the process.

The "variable response" differentiation between an "Initial Assessment" and an "Investigation" are not yet in the official regulations of DCF in the Code of Massachusetts Regulations. For the purposes of this article, it should suffice to say that an Initial Assessment results in a finding of unsubstantiated, minimum risk or refer for assessment, and seems, at least partially to exclude less serious cases from being able to seek reversal of any findings through the Fair Hearing process, discussed later.

Under the statute, DCF must "investigate" whenever there is a report of suspected abuse or neglect of a child. The law setting out when a report becomes mandatory and authorizing any person who has reasonable cause to believe a child is being abused or neglected to report is in section 51A of the statute, so these are typically called "51A Reports." The resulting "evaluation" report is called a 51B because of where the requirements for the investigation are in the statute.

The current DCF "Intake" regulation that attempts to detail the statutory "investigation" scheme is here: http://www.lawlib.state.ma.us/source/mass/cmr/cmrtext/110CMR4.pdf. The "non-emergency" investigation that I was discussing with the caller is section 4.26.

Once DCF concludes, either through an Initial Assessment or an Investigation, that the family needs to engage in "services" to correct the problems that caused them to be reported to the Department, they enter into a stage called "Assessment." DCF's regulations about the 45 day Assessment are here: http://www.lawlib.state.ma.us/source/mass/cmr/cmrtext/110CMR5.pdf.

"Service Plans" are the "agreements" DCF workers try to get the parents to sign, either on an "emergency" basis, i.e., during the investigation, or for ongoing case work, i.e. for 6 month increments after Assessment. The regulation about service plans is here: http://www.lawlib.state.ma.us/source/mass/cmr/cmrtext/110CMR6.pdf.

The regulations about requesting copies of the reports that were filed (51As) and that the caseworker doing the initial assessment or investigation writes (51Bs) are in article 12.00, here: http://www.lawlib.state.ma.us/source/mass/cmr/cmrtext/110CMR12.pdf, particularly section 12.08.

How to request a Fair Hearing to appeal the finding that you did abuse or neglect your children is in article 10.00, here: http://www.lawlib.state.ma.us/source/mass/cmr/cmrtext/110CMR10.pdf.

Definitions of abuse and neglect (though not particularly good ones) are in the Glossary, article 2.00, here: http://www.lawlib.state.ma.us/source/mass/cmr/cmrtext/110CMR2.pdf.  Slightly more detailed descriptions of what they mean by "reasonable cause to believe," "supported" and "The List" (that the worker told this parent s/he would be on "forever") are in article 4 sections 4.32-4.38, linked above.

Most of what it all means is in court interpretations of things DCF did that parents appealed, which is covered in a 3 day course and 1200 page two-binder notebook for lawyers in this field and changes all the time, so you can see why I couldn't really teach you everything you need to know in one phone call or even a way-too-long blog post.

The Mass. Trial Court Law Libraries has a good set of resource pages, called "Mass. Law About ...". You might find the cases and additional links at the one about Child Abuse and Neglect to be informative. Here's a link: http://www.lawlib.state.ma.us/subject/about/childabuse.html. Note the subsection with its own link on that page called "Is it illegal in Massachusetts to leave a child alone in a car?" Here's a link to it: http://www.lawlib.state.ma.us/subject/about/childabusefaq.html#car. There's a similar subsection called "How young a child can be left home alone?" Here is it's link: http://www.lawlib.state.ma.us/subject/about/childabusefaq.html#home.

I have included them here because the handling of these subjects is typical of how mandated reporters and DCF workers in Massachusetts deal with issues. That is, they seem to believe that "there is a law" that makes certain actions "illegal" when, actually, the case law makes it a fact-specific determination and leaves a good deal to the discretion of the parent, as long as the parent is being reasonable.

Judges and children: When the twain should (must?) meet

I discovered this interesting blog article on the Family Law group at LinkedIn.com

Family Law Blog: Judges and children – AJ v. JJ and others [2011] E...: It sounds like a definition of people you should never work with. Animals are less of a problem! Actually, I raise this as a topic beca...

An English appellate court said that a family court judge should have met with the children to explain to them why he was sending them back to Poland to be with their father who had custody, over their reportedly vigorous objection.

The blog author seems to agree with the system there, similar to ours, that parents are discouraged from bringing their children to court and that children's voices are heard through a Guardian Ad Litem (GAL). The reported decision said it was the judge's responsibility to avoid the scenario of screaming, kicking children being dragged onto a plane by explaining the process to them.

Many parents and children believe that children's voices are not adequately heard or are inaccurately reported through the GAL system and argue that children should have the opportunity to directly communicate with the decision maker, either as witnesses or parties with standing to have their positions count. Is it for the best? Are there other options?

FDA Regulation and Parental Rights in Artificial Insemination

The Just Families blog of New York Law School's Diane Abbey Law Center for Children and Families posted the article at the link that follows about a trend of couples sidestepping fertility clinics to find sperm donors: Online Sperm Donation

I posted the following comment there based on the first few legal thoughts* I had reading the article:

Would the FDA still think it had a right to regulate the transaction if the donor made his donation directly without the intervention of the husband? What if it were a loveless marriage and the husband was the donor the only intention being to make the wife pregnant, does that still invoke the regulatory powers of the FDA?

Regarding the presumption of legitimacy - my research suggests that those laws have nothing to do with the use or not of a physician but predate artificial insemination and create a rebuttable presumption that the husband is the father of a child born during (or in the case of Massachusetts within a certain time frame before or after) a marriage. It is to protect the child from being fatherless or being declared not the child of the mother's husband unless there is evidence presented that bursts the presumption and it is in the child's best interests to declare the genetic father to also be the legal father.

I know some state laws and AID contracts limit the right of the sperm donor to assert his parentage, but for the best interests of the child, it would seem that limiting the presumption to physician-assisted sperm donation would be counter-productive.

More thoughts:

What about this kind of transaction takes it out of the Griswold v. Connecticut or Belotti v. Baird privacy realm that permits the FDA to be involved?

Forgetting about the FDA regulation issue, what are the pure Family Law / Parental Rights issues involved? Do state laws adequately deal with the issues involved in sperm donation? Can the parties to the transaction write an agreement that would be sufficient to foreclose the donor from having any rights or obligations regarding the child? Would it be legitimate for the parties to deal with each other anonymously with fictitious names and proxy email addresses?

Has the law of parenting fallen too far behind technology to adequately address these issues? Should the law ignore technological advances until it catches up? Are there issues of morality aside from the legal issues? (That is, is there something malum im se, wrong in itself, rather than malum prohibitum, wrong because it is illegal, that needs to be addressed here?)

* I had other initial thoughts based on the title of the article that were of a practical rather than legal nature that I didn't post on the Just Families blog mainly around the question, "How do you get the sperm into the Internet for online donation?" When I read the article, I understood that it was the offer of the donation service only that are made online and the couples travel to where the donor is to consummate the transactions.

Leaving 3 year old in car for 13 minutes is not neglect

This New Jersey court is as good at overturning their child protective services agency's findings of neglect as the Massachusetts courts are at upholding them:

Dept. of Children Youth & Families v. A.S., New Jersey Superior Court Appellate Division, decided 9/29/11

Three year old wanted to stay in car to continue watching DVD while mom did some last minute barbecue shopping at big box store. Mom left her strapped in her car seat, the doors locked, the car started with remote start and the air conditioner on for 13 minutes. Child was unfazed when police arrived, police could not get car doors opened. DCYFS found her neglectful. So did the administrative hearing.

But, citing the statute and a couple of other New Jersey cases that also reversed neglect findings, the court reversed and ruled in favor of mother.

Thanks to Leagle.com for posting this unpublished, per curiam decision.