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The Importance of Family Defense
By Martin Guggenheim, ABA Family Law Quarterly Volume 48, No. 4 (Winter 2015) pp. 597-607
This article describes the growing field of “Family Defense,” which involves lawyers and other advocates working on behalf of parents or other family members whose children are at risk of being placed in court-ordered foster care. Although lawyers have been doing this work for several decades, a national movement to consolidate and enhance the field’s status in the legal profession is less than a decade old. Based in the American Bar Association’s Center on Children and the Law, this movement’s purpose is to achieve procedural and social justice for all families involved with child welfare systems, through legal, legislative, and policy advocacy. Above all else, it seeks to ensure that every parent who is in jeopardy of having a child removed from his or her care by a child welfare agency is able to secure excellent legal representation during the entire length of the court process. This article explains the importance of the field and how it differs from criminal defense. Finally, it offers some insight into why the field is relatively unknown in the legal profession despite the important work that it does.
You may have read about Christopher, a Dallas-area 8-year-old who has been, without exaggeration, sadistically tortured his whole life, completely robbed of a normal life, in an extreme case of "Munchausen Syndrome By Proxy." A dashing and lighthearted name for a horrible, sadistic form of lifelong child abuse; they really should give it a name as serious and awful as it is. It has many vague and forgettable official names, none of which are remotely as ghastly as they ought to be.
Christopher’s mother treated him as if he was deathly ill from his birth until she was arrested last week: feeding tubes, oxygen tubes, heart tubes, hospice, do-not-resuscitate orders, wheelchairs, 13 surgeries, hundreds of hospital visits. She tried to subject him to a lung transplant. But actually, he was always completely healthy, except for life-threatening blood infections from the tubes.
But what's really more shocking: that there are a few psychotic child-torturers out there, or that the family courts and the medical system protect and enable them, even when the children's fathers discover the truth and try to rescue them?
When Christoper was three, his father went to family court to make her stop, and instead, he lost all visitation. He says the judge refused to look at evidence and condemned him for his refusal to accept that Christopher was dying. Here's what the local paper says now about his court battles:
For years, Crawford said he tried to convince Dallas County family court judges that his son was not sick but they believed Bowen, who would eventually claim that their son was dying, initially from a rare genetic disorder and later from cancer.
Crawford said a Dallas County judge even blocked him in late 2012 from visiting his son, who was then 3.
“It was always the same story: Christopher is dying. The father doesn’t need to be around because he doesn’t know to take care of him,” a tearful Bowen would tell the judges, according to Crawford. “... Every time I went to court, they made me feel like I was the worst human ever.”
The 34-year-old woman is in Dallas County Jail in lieu of $150,000 bond. Her court-appointed attorney did not return a message seeking comment Friday but Bowen denied the allegations last month to CPS investigators.
Crawford said he is grateful that Bowen stands accused of wrongdoing, but remains frustrated that it took so long.
“It’s horrible for my son, or any kid because obviously my son is not the only one that has had to go through this type of torture,” Crawford said. “The system has to be exposed — all the weaknesses that are in the system — because the kids don’t deserve that.”
The allegations against Bowen fit the model for what is known as Munchausen syndrome by proxy, a disorder in which a person exaggerates or creates medical symptoms to gain attention.
Convincing family court judges that a mother may be medically abusing her child is often a challenge, experts say.
Even in 2017, such medical child abuse is still relatively unknown when compared to other types of maltreatment and “so many court judges are inexperienced in this realm,” said Dr. Marc Feldman, an Alabama psychiatrist who is a national expert and author on Munchausen syndrome by proxy.
“I encounter tone-deaf family court judges a lot,” Feldman said. “They, like most members of the public, can’t let themselves believe that an apparently-loving mother could engage in medical child abuse.
“They are used to seeing gross evidence of physical or sexual abuse — bleeding, bruising, broken bones — and don’t seem to respond to the more subtle indications of medical child abuse.”
Feldman said such judges also tend to treat doctors as “gods who are incapable of error, not realizing that these abusive mothers doctor-shop until they find someone who will acquiesce to their demands.”
Crawford said he recognizes he made mistakes during his fight in the family courts.
Several times, he represented himself — something he now regrets. He said while Bowen seemed to draw on the judge’s sympathy with her claims and tears, he only angered them with his insistence that Bowen was lying.
“I’m not a criminal. I’ve never been before a judge for anything. Of course, I’d seen “Judge Judy” but I thought Judge Judy was fake,” Crawford said. “To see real life Judge Judys, that was something new to me. I’m like, they’re allowed to talk to me like this?”
Though he had court-ordered visitation initially, Crawford said Bowen would frequently cancel at the last minute, claiming Christopher was too sick. She’d tell judges that Crawford didn’t know how to properly care for their seriously ill son, further delaying his visits until he could take court-ordered classes in things like CPR and G-tube care.
Until recently, Crawford’s last visit with his son had been Dec. 7, 2012, when he took the boy’s great-grandmother to Kaylene’s Dallas apartment to see Christopher.
“We went to court two weeks later and Kaylene told the judge that Christopher went into cardiac arrest due to my visit,” Crawford said.
He says at a subsequent hearing, [the judge] said she was taking away Crawford’s visitations with his son since he refused to believe the boy was dying.
“She asked Kaylene, ‘Would you mind if his father sees him one more time before he passes away?’ but Kaylene said no,” Crawford said. ...
In January 2014, he hired a new attorney and filed for custody of Christopher.
When they went before [the judge], Bowen cried and claimed Christopher, then 4, was in a coma.
“ [The judge] immediately stated she’d heard this case and she can’t believe we would drag Kaylene back to court when the child is dying,” Crawford recalled. “She wouldn’t hear the new evidence that included doctor reports that Christopher was not ill.”
... More than three years later and even after Bowen’s arrest, Crawford is still fighting — this time trying to get Christopher out of foster care and home with him.
He said CPS has expressed reservations about moving the boy out of foster care because Christopher doesn’t know his father very well. Never mind, Crawford points out, that Christopher doesn’t know his foster family well either.
“That’s taxpayer money. Why spend all that extra money when he has a father that has been there from day one, that’s been fighting for this?” Crawford said.
A bill now in Virginia's Senate and House of Delegates would let Virginia welfare agencies file court cases against parents without a lawyer signing off on the case -- fundamentally changing the traditional role of law practice as a regulated, accountable profession bound by ethics rules. These are very serious cases that can take apart families, destroy parents' finances and livelihoods, and lead to their being jailed for contempt.
Currently, legal ethics rules, court rules, and the Sanctions statute require all lawsuits to be signed by a lawyer (except for people who represent themselves), and require the lawyer to believe, after due investigation, that the suit is well-founded in the facts and the law and not filed simply to harass, impoverish or delay the other party. They also require lawyers to be truthful to courts, opponents and others involved. The bill, and the statutes it amends, do not do anything to make these new case-filers subject to those rules. And even if it did, that would not be the same as requiring a lawyer to put her credibility and hard-earned license on the line every time she signs a court filing.
Welfare agencies do great work but like anyone, they do get things wrong, out of negligence or simply normal human imperfection, not malevolence or corruption. Requiring a lawyer to sign off on these case filings is an important protection for the public, reducing the chances of a completely groundless prosecution, ensuring due process of law, and providing accountability when things go wrong. An example, where a judge felt strongly that sanctions and lawyers' fees should be awarded to the victim of a groundless civil child-abuse suit, is FAIRFAX COUNTY DEPT. OF HUMAN DEV. V. DONALD, 251 Va. 227 (Va. 1996).
The drafters seem to think that providing standard, foolproof check-box forms (which already exist) removes the need for lawyers. But having non-lawyers draft the forms is never a problem and is not the issue. The issue is protecting citizens and courts, by holding even the do-goodingest government agencies to the same basic rules that govern any other person, corporation or agency that takes someone else to court.
The bill adds to Code § 16.1-260 on Juvenile Court filings:
"designated nonattorney employees of a local department of social services may complete, sign, and file with the clerk, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, and motions for a rule to show cause;"
[Note: "Motions to amend or review" includes modification of any existing child custody, visitation or placement order. "Rule to show cause" means contempt of court, including up to a year in jail and setting amounts of support arrears to be paid in order to get out of jail.]
It adds to § 54.1-3900, on who can practice law:
Nothing herein shall prohibit designated nonattorney employees of a local department of social services from appearing before an intake officer to initiate a case in accordance with subsection A of § 16.1-260 on behalf of the local department of social services.
Nothing herein shall prohibit designated nonattorney employees of a local department of social services from completing, signing, and filing with the clerk of the juvenile and domestic relations district court, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, or motions for a rule to show cause.
And it adds to Code § 63.2-332, "The local director shall designate nonattorney employees who are authorized to (i) initiate a case on behalf of the local department by appearing before an intake officer or (ii) complete, sign, and file with the clerk of the juvenile and domestic relations district court, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, or motions for a rule to show cause."
The proposal is in two bills which appear identical: House Bill 589 and SB 417. SB 417 passed the State Senate 20 to 17, with three Senators not voting. I'm proud to say my William & Mary law classmates Jennifer Wexton and Ryan McDougle, Fairfax Senators Chap Petersen and Scott Surovell, my old Senator Tommy Norment, and Donald McEachin all voted Nay. It is now in the House Courts of Justice - Civil Law Subcommittee. It is on the Committee's agenda for this coming Monday, Feb. 22. The subcommittee's members are Delegates Habeeb (Chairman), Kilgore, Loupassi, Minchew, Leftwich, Campbell, Miyares, Toscano, McClellan, and Krizek. The full Courts committee's members are Delegates Albo (Chairman), Kilgore, Bell, Robert B., Cline, Gilbert, Miller, Loupassi, Habeeb, Minchew, Morris, Leftwich, Adams,Campbell, Collins, Miyares, Watts, Toscano, Herring, McClellan, Hope, Mason, and Krizek.
HBl 589 passed the House almost unanimously and is now in the Senate Courts of Justice Committee, which also meets this coming Monday.
Almost as bad, I see that Code § 54.1-3900 already has existing language allowing this practice for child-support filings. Even though Social Services already has its own internal administrative tribunals that can make and review child support orders without lawyers. It reads:
Nothing herein shall prohibit designated nonattorney employees of the Department of Social Services from completing, signing and filing petitions and motions relating to the establishment, modification, or enforcement of support on forms approved by the Supreme Court of Virginia in Department cases in the juvenile and domestic relations district courts.
If I understand correctly, this was added a few years ago to protect the validity of existing support orders after it was discovered that some non-lawyer social services employees were already doing this. But they could have done that without allowing the practice to continue and be authorized by the state. The existing language is bad enough but the new version would cover many more kinds of cases. Ideally, an amendment-as substitute should delete that existing language and drop all the new language currently in SB417.
If you want to see what protections this bill takes away from parents, Here is Code § 8.01-271.1:
§ 8.01-271.1. Signing of pleadings, motions, and other papers; oral motions; sanctions.
Except as otherwise provided in §§ 16.1-260 and 63.2-1901, every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, and the attorney's address shall be stated on the first pleading filed by that attorney in the action. A party who is not represented by an attorney, including a person confined in a state or local correctional facility proceeding pro se, shall sign his pleading, motion, or other paper and state his address.
The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, written motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.
An oral motion made by an attorney or party in any court of the Commonwealth constitutes a representation by him that (i) to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and (ii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
If a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including a reasonable attorney's fee.
In a case that has gone on for years now, a couple found a sperm donor on craigslist instead of going to a sperm bank or fertility clinic. States have laws that say sperm donors won't be considered fathers, but they require several procedures, standards and safeguards, and a licensed clinic must be responsible for the procedure.
Some media coverage has perpetuated the inhumane, patriarchal, but still widespread notions that children are property to be bought and sold by contract, and that child support is a trade-off for visitation. Fox's WHTI TV 10 in Terre Haute, Indiana says in today's story on the case, "Kansas sperm donor fights back after state forces him to pay child support":
"'Angie and Jennifer are the parents,' Marotta said. The state of Kansas won’t accept that. Despite the fact that the lesbian couple and Marotta signed a contract giving up all parental rights to the child."
"According to Marotta his lawyer has only found one other case in the United States where this has happened, but in that case the sperm donor had changed his mind and requested visitation with the child. Something Marotta’s never wanted, or asked for."
The social services spokesperson quoted in the article has it exactly right:
“If an individual wants to have the protections of a sperm donor, he needs to follow the law. ... Parental rights can not be signed away without following adoption laws.
And that's exactly what those involved should have done, at least after Kansas's Supreme Court upheld a trial court decision recognizing gay co-parenthood in February of 2013. The Court's opinion in that case shows how it differs from this one:
The coparenting agreement before us cannot be construed as a prohibited sale of the children because the biological mother retains her parental duties and responsibilities. The agreement is not injurious to the public because it provides the children with the resources of two persons, rather than leaving them as the fatherless children of an artificially inseminated mother.
I am for freedom of contract and against government interference, far more than almost anyone else I know. But your freedom of contract ends where your children's fundamental rights and interests begin. Including the child's right to parents, recognized in the UN Convention on the Rights of the Child.* Because of that, courts and other government agencies are in charge of investigating and approving adoptions. That authority is exercised pretty minimally in cases that are based on mutual consent, particularly where one biological parent remains a parent, but it is still crucial for the government to have a role in any change so fundamental as changing who a person's parents are. This gives the state and judges a chance to oversee the process, to verify the parents' informed consent, to step in when it looks like the adoption is not in the child's interests, and to have uniform official records confirming legal parent-child relationships.
*Relevant Parts of the United Nations Convention on the Rights of the Child:
The family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community." (CRC Preamble)
The child ... shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. (CRC Art. 7)
States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. (CRC Art. 8(1))
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. (CRC Art. 9(1))
States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. (CRC Art. 9(3))
States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. (CRC Art. 14(2))
A bipartisan coalition, including Virginia's Rep. Robert Scott and Senate Judiciary Committee Chairman Chuck Grassley of Iowa, is working with the American Bar Association to update the 1974 Juvenile Justice and Delinquency Act to incorporate the latest scientific findings on juvenile psychology and development, crime prevention and community safety. A key feature is the end of jailing youth for "status offenses" -- things that would not be crimes if committed by adults -- and jailing them even temporarily with adult criminals.
The development of holistic, therapeutic juvenile courts over the past 100 years has done much good, but has also given them great power and discretion and little accountability. Children who merely misbehave can be sucked into the system, bring their whole families with them, get permanently defined as troubled youth, and be supervised so constantly that they can never get out of the legal system until they age out, having missed the opportunity to grow up. My father and law partner Richard Edelin Crouch sounded the alarm about this in the William & Mary Law Review 50 years ago, inspired by the Juvenile Court saga of his younger brother, the late Howard R. Crouch, which started when he idly walked by a restaurant, stuck his head in the door and yelled, "This place stinks!". The police were called, the social workers who followed in their wake declared the Crouches a "broken family" because their father had died, and it all helped inspire Richard's lifelong work for civil liberties and the rights of children, parents and families.
BY RHONDA MCMILLION @ abajournal.com, SEP 1, 2015
>As more single-led households emerge, the issue of free-range parenting becomes more evident. Issues abound, such as how old should a child be to walk to school alone, for how many blocks, or what age can children be left alone by themselves and for how long? We’ve even seen cases where parents have been threatened with jail if their child was overweight. Where is the line drawn between free-range parenting and neglect? Hear from our esteemed panel and special guest Lenore Skenazy, Founder, Free-Range Kids movement, as they discuss:
• Handling media-distorted perceptions of risk
• Vagueness of child neglect statues
• Using expert testimony
• 14th Amendment Due Process
Tuesday, July 7, 1:00 PM - 2:30 PM Eastern Time.
1.5 CLE credit hours depending on state
"John kicked a bottle in the gutter!!" my kindergarten teacher exploded as soon as my mom picked up the phone. "And?" my mom asked. She realized right then that she needed to get me out of that school and away from people like that teacher.
I'm lucky I'm not a kid these days. Northern Virginia legislator and state senate candidate Scott A. Surovell (D-Mount Vernon), who occupies George Washington's old House seat, writes:
"Virginia is #1 in child referrals to law enforcement. Virginia's rate for African American students is 10x higher than Maryland, 16x higher than DC, 2x higher than NC. Why? 'In southeastern Virginia, for instance, a 12-year-old girl was charged earlier this year with four misdemeanors — including obstruction of justice for “clenching her fist” at a school cop who intervened in a school fight.' We need to fix this."
For statistics on this in Virginia and all other states; the story of an autistic 11-year-old convicted of disorderly conduct for kicking a trash can, and felony "assault on a police officer" for struggling when a school policeman grabbed him; and a Georgia judge who has worked to stop this trend in his state and testified to Congress about "the School-to-Prison Pipeline and the negative effects of zero tolerance policies", see:
Citing the study:
The best-written version of something many of us have known for years. More proof that “humorists” are the most serious, effective social critics and practical philosophers.
Looking back, I think my parents had more fun than I did. ... [Read More]
*Article originally appeared in Wall Street Journal, 2/26/15, adapted from Barry's new book,