Review-presentation offered by Judicial Council of California

This is the first in a three part series reviewing Continuing Legal Education information provided to attorneys who represent children and parents in dependency cases in California. I requested and was graciously provided with a copy of the presentation for the purposes of this review. The DVD includes two discussions and a video game. Today's topic is a review of the first presentation, Substance Abuse: The Web of Addiction.

This presentation represents that addiction is a factor in majority of dependency cases. However, based on government statistics, neglect is the major factor. Anecdotal reports indicate that poverty is the root of most neglect cases. It seems to be lazy reasoning to conclude that because substance abuse is more prevalent in poorer areas, that substance abuse is directly responsible for child abuse. 

I do not dispute that substance abuse is a major factor in some child welfare cases, however, many jurisdictions have ruled that substance abuse is not in an of itself, a legitimate reason to remove children from the family home. If the use of substances affects the welfare of the children, i.e. the children's minimum basic needs are not being met by the caregiver, only then can the state justify intervention into the family unit. But even then, as the judge in this presentation noted, if the parent's or the child's attorney can demonstrate to the court that the child can be safely kept in the home, the state is not permitted to remove the children from the family home, or obstruct speedy reunification. Just how to accomplish that outcome was never discussed. 

During the presentation of the discussion on the biology of addiction, the spokesperson lawyer comments," We're talking about the abuse and neglect of little children, here." This is a graphic illustration of the effectiveness of the child saver's pervasive fear-mongering campaign which equates substance abuse with child abuse. 

An examination of the facts reveals that these are two distinct states which may have a cause and effect relationship, but which are equally likely not to have a cause and effect relationship. This video as much as admitted that there are functional addicts in every walk of life, including sitting on the benches of our courts. He asks where to draw the line between use of drugs and a presumed effect it is having on the children, ignoring the legal fact that the state bears the burden of proof that there is a legally sufficient reason to intervene into the family based solely on the parent's use of substances, including tobacco or alcohol. 

Attorneys on the panel recommend using the child as a way to leverage the parent's participation in agency recommended treatment as an effective tactic. The brutality of this practice, especially the effect of the prolonged removal and isolation from their parents upon the children, is a shocking illustration about how casually participants in these cases view the forced separation of children from their parents. They promote holding the children hostage  as part of the coercive methods employed in the imposition of inappropriate case plans which are in reality not designed to effect the purported rehabilitation of the parent. 

The presentations states that parents need support and services to overcome their addiction, But, the panel's suggestions for support do not include the services offered by trained and certified family advocates. This type of community based service has proven an effective model in other jurisdictions to insure parent's compliance with appropriate case plans, speeding up reunification, and providing non-abusive motivations for the parent's compliance coupled with forcing the agencies to fulfill their statutory mandates in child welfare cases. 

But while this presentation stresses the importance of parents seeking help with rehabilitation, we have received many report of parents seeking help in overcoming their addiction have had their children removed. This video seems to support the agency posture that any use of substances, even moderate use of legal substances, is grounds for state intervention and the removal of children. This obstacle to rehabilitation was never even addressed. 

This presentation is better directed toward addicts. It is an effective reinforcement for the child saver line that substance use is automatically a threat to the child, a premise that is unproven by the facts and unsupported by law. 

As a tool to train attorneys who represent parents and children in child welfare cases, it is a complete bust. It gives excuses for  the agency not to provide appropriate services to address alleged addiction, including lack of resources. 

The administrators and judges expect the parents to make change without requiring the agency to provide appropriate and effective services which will give the parent effective tools to overcome the substance abuse. It does not even enlighten attorneys as to what constitutes appropriate treatment plans and services in cases involving substance abuse, much less teach the attorneys how to vigorously represent the rights of the parents and the children during this kind of case. 

It was even advocated that the agencies heap extensive case plan requirements on the parents, totally oblivious to the fact that placing this kind of burden upon addicted parents who are already in a critically traumatic situations is a fail-safe recipe for failure.  All of this appears to forward the premise that parents must be nearly perfect as a condition of exercising the right to family association, rather than the legal reality that parents are only required under the law to provide the minimum of care, supervision, education, medical to maintain the integrity of the family unit. 

This presentation does have the redeeming feature of illustrating exactly what is wrong with the court-appointed representation that parents and children in child welfare cases must endure. They don't even properly present the applicable law with respect to representing parents and children in child welfare cases involving alleged substance abuse. 

This provides nothing substantive to attorneys who desire to vigorously represent parents and children in child welfare cases. 

Next: What Juvenile Dependency Attorneys Need to Know About Basic Child Development presentation.

Failure to File Paperwork Constitutes Child Endangerment

timesunion.com 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. 

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.

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. 

Parental Rights Amendment

Parentalrights.org is forwarding a parental rights amendment to the U.S. Constitution. 
This has been tried and failed before in various states. Repeatedly. Right concept, wrong way to do it. In 1996, Colorado lost this attempt, and I immediately saw why it failed. In response to this failure, I reframed the issue from children's rights vs. parents rights to family rights. That concept has caught on with grassroots activists, but evidently the merits of eliminating the competition between parents and children have escaped the monied activists. 


This should not be handled at a Federal level. The states pass the laws governing child welfare, the states administer the laws governing child welfare, the Feds maintain a "hands off" policy regarding child welfare to the point that they don't even exercise oversight over the federal funding they give the states to pass and administer their child welfare laws. A  family rights amendment  to the state constitutions is easier to pass and will be much more effective in reigning in child welfare abuses. Even better is an amendment which closes all the existing loopholes in the parental rights amendment. 

A Parental Rights Amendment is not going to work. In analyzing the tension of rights between parental rights and children's rights, the children's rights will win every time.  It is a waste of time and resources. Furthermore, it does not remedy the problems families face under our current scheme.


Notice the language "Neither shall the United States nor any state shall infringe upon this right without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served." Loophole. All the judge needs to do is recite the incantation, "The court finds the state's interest is of the highest order and not otherwise served," whether or not the evidence supports that finding. Just like they do with Reasonable Efforts now. It feels good but lacks substance. We must be smarter than this. . .duh.


more links on failed attempts:
http://www.pbs.org/newshour/bb/election/october96/parents_10-28.html
other states and analysis http://parentalrightslegislation.blogspot.com/2006/04/brief-history-of-parental-rights.html


Previous commentary

Controlling Adult Political Conduct by Holding Children Hostage

During the Civil Rights movement in our country, the state engaged in a hush-hush practice designed to quell any first amendment activities (petition the government for redress of grievances, freedom of press, freedom of assembly, freedom of speech, freedom of religion) of civil rights activists.

We all know about the well-publicized efforts of local, state and Federal government agencies to classify the legal conduct of civil rights activists as crimes in order to silence the more outspoken by arresting, prosecuting and imprisoning them. We also know that these attempts ultimately failed because the government's strategies violated the constitutional rights of the targeted activists, and were effectively challenged repeatedly.

But one practice was not challenged. The practice of removing children from their activist parents in an attempt to control their political conduct. We don't know about it because it worked.

And it works, today, as well.

In 1996, I began publishing my web site, which was one of the first web sites that addressed child welfare abuses. At that same time, I forwarded the argument that as long as activists seeking child welfare reform engaged the issue on the existing terms i.e. Parental Rights vs. Children's Rights, our reform effort would fail. In a contest of these competing interests, Children's Rights would always prevail. So, I redefined our side of the issue to Family Rights. Who could be against the family? This principle stuck, and it has grown to the Family Rights grassroots movement.

This is a chaotic movement, without effective leadership, populated by many damaged people who indiscriminately lash out against friend and foe alike for the smallest real or imagined slight. Whether those people were unstable before the state intervened, or whether the state intervention made them unstable is a question I and my colleagues have debated often, without arriving at a consensus. It is evident that this particular kind of state intervention, more so than any other alphabet state agency intrusion, is emotionally, financially and psychologically devastating to all persons whom the state agency is helping.

I see one of the biggest problems is that these injured souls want reform. They inherently know they and their children have been wronged, but they don't know how or why. They claim that the state's actions are illegal and don't understand when the court says they are legal. They rabidly scream corruption and insist the world believe them because of the horrors they and their children experienced. Their self-professed leaders are angry, and exhort their mob to fight, fight, fight with useless tactics that have the single virtue of making the person feel better, at the expense of alienating the public and incurring retaliation from the courts and agencies.

This retaliation is exhibited by the gag orders I discussed yesterday, and by issuing other illegal orders like ordering parents to take down their web sites which are critical of child welfare agencies and service providers, to stop associating with similarly-minded reform activists, to censor their speech which is critical of the courts or agencies. Case workers, CASAs, GALs, and hostile foster caregivers troll the internet and online groups to find parents and use their political free speech and publications against them in their court proceedings. If the parents attend a public rally or a legislative hearing, these same hostile actors take down license plates and names of attendees from sign-up sheets. The courts allow the parent's political conduct to be used as proof of parental unfitness and lack of compliance with treatment plans. Parents who attend the wrong church have their children seized in order to compel the parents to remove themselves from the membership of the unapproved church.

Retaliation against activists is inevitable in any social reform effort. The powers-that-be want to maintain the status quo, their power base. . .their jobs.  Since the retaliation is inevitable, it should anticipated and exploited to effect the desired reform. History has given us the models, we only need to know and understand them in order to exploit them.

Alas, the current family rights leadership is only able to bitch and piss and moan about the violations of rights. These self-professed gurus don't "get it" and can't see past their own pain and anger. They can't anticipate the retaliation, they can't exploit it, can't enforce their rights and in so doing, they surrender their rights, and their children, and the rights of other activists and their children to the alter of child protection. Not an effective strategy in my mind.

Child Welfare Cases and Gag Orders

There is a certain Florida judge, at least one that I have reliable information about, who issues gag orders restraining parents from talking about the specifics of their child welfare cases, prohibiting them from disparaging or denigrating anyone who has worked on their case as a condition of keeping custody of their children after they win a TPR (Termination of Parental Rights) hearing. In fact, the parents reportedly face threats of contempt and having the entire child welfare nightmare repeated if they dare speak out about their case. Holding children who have not been abused as hostage to protect the reputations of child welfare agency actors and the courts by having their official conduct publicly exposed is shocking. Shocking! 

By way of background, in Florida, it seems dependency hearings are open to the public, but TPR hearings are closed to the public. I've attended dependency hearings in Florida, and they are conducted pretty much the same as in other states. 

I will assume for purposes of this discussion that confidentiality of Florida's child welfare files and TPR proceedings serves legitimate state interests. That is not to say that I necessarily agree with this premise. I simply choose to argue that this confidentiality protection belongs to the parents and the children, not to the state. Consequently, the parent who wins at a termination of parental rights hearing and regains custody of their children possesses the sole right to enforce or waive that confidentiality on behalf of their children. 

However, the states routinely whip out the confidentiality argument to protect themselves from free speech of their victims that would expose their conduct during the administration and adjudication of a child welfare case to  public scrutiny. The parents' attorneys don't even challenge this practice, often advising their clients not to rock the boat, thereby contributing to the conspiracy of silence surrounding what really happens in a child welfare case.  Who could imagine that free speech could be so effectively destroyed on such a wholesale basis? What parent would risk speaking out if their children were subject to arbitrary state seizure, dangerous foster care and termination of parental rights? What a power trip!

Oddly, the law does not support this practice. 

Let's assume, arguendo, that confidentiality does apply to the state workers. The courts have held that "there is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs." Even confidential proceedings into judicial conduct are not protected from the disclosure and publication of truthful information about their proceedings which are protected by state confidentiality statutes, so how could child welfare workers' conduct be confidential?

But extending the family's confidentiality to the case worker is silly. A better argument would be to assert the privacy interests of the individuals administering the case. This doesn't fly, either. The courts have universally held that individuals acting in their official capacity have no expectation of privacy when they conduct the business of the state. They are conducting the business of the people, using taxpayer funds and the people have a right to know all. Yes, even child welfare workers are subject to public scrutiny, and who better to expose them than their clients?  

But what if we assume they do have a privacy right? Time after time, when the high court has been called upon to consider whether the free exercise of speech under the First Amendment may be curtailed to protect privacy rights, it has not been hesitant in resolving the ostensible conflict in favor of the exercise of free speech. Even when the free speech would harm the reputation of the individual or institution being discussed. The U.S. Supreme Court has firmly established that injury to one's official reputation is insufficient reason for repressing speech that would otherwise be free. So, if case workers get it wrong, we all have the right to know all about it. 

A Florida case actually addresses the validity of a permanent post-judgement gag order, stating Florida law precludes the judge from enforcing the gag order now that he has no jurisdiction over the parties. The appeal was denied because the issue of the gag order was moot. Bottom line, if the case is closed, the gag order is unenforceable. But even if the judge were to attempt to enforce it, he would have to overcome all the barriers to gagging free speech cited above, which would open him to disciplinary action and appeal. 

So, given these facts, I'd tell all. . .  after I got the kids out of the state. After all, it only takes one false allegation to terminate parental rights.