Thursday, January 7, 2010

Failure to File Paperwork Constitutes Child Endangerment reports "Richard Cressy, 47, and Margie Cressy, 41, were charged with four misdemeanor counts of endangering the welfare of a child. . ."

And what was their alleged crime? How did they endanger their children? " The couple is accused of violating a state law that requires parents who are home schooling their children to register their curriculum with the local school district." Endanger in the welfare of a child is described in section 260.10 as

1. He knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health. 

So, now we want to take kiddies and jail parents who don't file paperwork with the bureaucracy? How does that help protect kids? New York ACS or the local sheriff don't have jurisdiction over homeshool issues. The board of education does. This is ACS's way of assuming jurisdiction where none legally exists.

It is quite a reach to allege that not filing paperwork constitutes endangering the welfare of a child. Can you spell R-E-T-A-L-I-A-T-I-O-N? This is the exact kind of reach child savers like to make in their efforts to control parental prerogatives when it comes to making child-rearing decisions, especially if mommy and daddy don't dot every i and cross every t. After all, parents are expected to be perfect as a condition of keeping their kiddies. 

Home School Legal Defense Association has agreed to take this case. 

Wednesday, January 6, 2010

Improper Child Interviews Exposed in Greene v. Camreta

Last time I discussed the ruling in Greene v. Camreta. This time I want to point out another typical tactic practiced during child abuse investigations. Improper interviews of children.

Camreta and Alford seek to justify the length of the seizure by pointing out that as the interview progressed, S.G. began disclosing sexual abuse by her father. S.G. maintains that for "over an hour" she repeatedly told Camreta that her father had never touched her in a bad way until she finally "just started saying yes to whatever he said." It is far from clear that it was reasonable for Camreta and Alford to continue to detain S.G. for an entire hour during which she continually denied such abuse even if it was reasonable to continue the interview once she started to say otherwise. Still, there is some case law applying the T.L.O. standard sanctioning a detention longer than an hour, and none refuting the justification Camreta and Alford offer for prolonging the detention beyond that - namely, that S.G. was just becoming - in their view - responsive.

Children are highly suggestible, and take their cues from the authority figure questioning them. In the case above, the caseworker, Camreta, broke the rules by asking the same questions over and over until the child wearily acquiesced and gave the response Camreta was seeking. Children will say whatever they think the authority figure wants to hear. We have conditioned them to "give the right answers." Their cue that they have given a wrong answer is when the question is repeated over and over. Even if Camreta stressed the importance that S.G. tell the truth, his refusal to accept that truth cued the child that she was giving a "wrong" answer.

A child cannot take much pressure before relenting and giving the "right" answer, which then become the facts of the case. The record on this case indicates Camreta was conducting a validation of his pre-concieved notions, not investigating to determine the truth. Can't blame Camreta, this is how it is done all the time.

I have a library of video-taped child interviews by "experts"  which parents have sent me over the years. Having been trained in the proper interviewing of children, I am asked to conduct an analysis of the interviews for attorneys. I also interview children about their interviews with child welfare agencies to uncover what motivated the child's responses.

I have advocated that all interviews with children should be video taped with all participants visible and face front to the camera, with a working clock in view. Proper practice dictates that the child should never be questioned prior to the taped interview. They should not be repeatedly interviewed, because repeated interviews taints the truth. And there is a right way and wrong way to question a child.

I had one case where the interviewer's back was to the camera. An examination of the video showed minimal improper questions, yet the girl changed her denials into accusations. When I interviewed her, she disclosed that she had changed her "story" because the authority figure's facial expressions indicated she was giving the "wrong" answer to his questions.

In another, a highly contested child sex abuse criminal case, a Denver, Colorado Children's Advocacy Center  interviewer blatantly violated every prohibition during their interview with the alleged child victim. She gave the child the answers she was seeking within the questions she asked. She asked leading questions. She repeatedly asked the same questions over and over until she got the answer she was seeking. She did not allow the child to tell the story in the narrative. She tainted that interview horribly, and an innocent man has had to stand trial three times on the same charges and still faces a fourth trial.

Camreta was just conducting over-zealous caseworker business as usual. This happens all the time, all over the country. It's no big deal. Children are removed, parental rights terminated, innocent people convicted and imprisoned, based solely on these tainted interviews. Just thought you should know.

Tuesday, January 5, 2010

Panic in the Child Welfare Agencies

Business as usual by Oregon child welfare has been nipped by the 9th Circuit Court of Appeals in a case  where a family sued a child welfare agency for unconstitutional search and seizure arising out of their interview with a child at school and subsequent removal from home.

Exhibiting their typical knee-jerk overreaction to anything that appears to protect anyone accused of child abuse or neglect, the child protection industry is burning with child-saver horror speculation and doomsday scenarios that more children will be abused because the constitution shockingly protects a child's right to family association. Child abusers win one. . . I have always maintained that the child savers gave too little consideration to the negative effects of their  assistance to families they, in their infinite wisdom, determine need their help. 

The mother, Sarah Greene, and her children sued the state agency for various constitutional claims associated with the agencies handling of a child welfare investigation and case. The U.S. District court dismissed the case. Mother and children appealed. The appeals court overturned the District Court. The findings were as follows:

1) "In short, applying the traditional Fourth Amendment requirements, the decision to seize and interrogate S.G. in the absence of a warrant, a court order, exigent circumstances, or parental consent was unconstitutional."  In this case, the court distinguished searches and seizures of students by school officials from situations where a police officer or social worker, not connected with the school, conducts an interview. School officials who acquiesce to an interview demand by child welfare agencies may now be open to liability. Especially if there is a 4th amendment letter  (on my web site, the password to open the letter is "I agree") in the child's school file as I have recommended for years. The court ruled that, because this precedent was not established prior, the defendants had immunity. However, if anyone does it again, they will not be immune from civil liability as this case clearly establishes the law in that regard.

2)"Because Camreta's alleged misrepresentation in support of his request for a protective custody order . . . violated the Greenes' clearly established rights, he is not entitled to qualified immunity." Exaggerating, misrepresenting, outright lying on affidavits and requests for court orders has been a long-standing tradition in child welfare cases. The problem has been in proving the lies, which is why I recommended as early as 1996 that parents record all interactions with state agencies and their providers. Deceitful case workers have responded by refusing to be recorded and retaliating when parents insist. I am on the record stating they, as public servants, cannot refuse to be recorded. It just keeps things honest. . .and provides evidence for future lawsuits like this. 

3) "Camreta's decision to exclude Sarah not just from the examination but from the entire facility where her daughter was being examined violated the Greenes' clearly established rights." The practice of preventing the parents from attending the child during medical examinations has already been condemned in another 9th Circuit case so the caseworker has no immunity for violating the child's constitutional rights.  Caseworkers routinely isolate the child from the parents, limit contact to infrequent supervised situations and refuse access to the child's medical, school and other records. It's long past time these capricious, heavy-handed control-reak practices by case workers bite the dust.

These are among the issues I have included in my accredited Continuing Legal Education training designed for attorneys representing parents and children in child welfare cases, and I am gratified to see that I, a mere mortal, have been vindicated by being right in my analysis and education of these particular issues. Too bad not enough lawyers "get it."

The court actually discussed family association and family rights in this case. 

  • [P]arents have a right arising from the liberty interest in family association to be with their children while they are receiving medical attention 
  • Finally, we hold that Camreta's decision to exclude Sarah from her daughters' medical examinations at the KIDS Center violated the Greenes' clearly established familial rights under the Fourteenth Amendment.
  • The interest in family association is particularly compelling at such times, in part because of the possibility that a need to make medical decisions will arise, and in part because of the family's right to be together during such difficult and often traumatic events.
  • . . .Wallis establishes two points central here: first, parents and children maintain clearly established familial rights to be with each other during potentially traumatic medical examinations. . .

If the U.S. Constitution can prove to be so powerful to protect the fundamental human right to family association, think of the double whammy a family rights amendment to the state constitution could provide in your state.