TWELVE WAYS TO DO CHILD WELFARE RIGHT NCCPR
Successful Alternatives to
Taking Children from their Parents
At the National Coalition for Child Protection Reform, we often are asked what can be done to prevent the trauma of foster care by safely keeping children with their own families. There are many options, and we’ve listed some below. None of the alternatives described below will work in every case or should be tried in every case. Contrary to the way advocates of placement prevention often are stereotyped, we do not believe in “family preservation at all costs” or that “every family can be saved.” But these alternatives can keep many children now needlessly taken from their parents safely in their own homes. Similarly, even communities that have turned their child welfare systems into national models still have serious problems, and often much progress still needs to be made. All of the things that go wrong in the worst child welfare systems also go wrong in the best – but they go wrong less often. These recommendations deal primarily with curbing wrongful removal by improving services. But at least as important is bolstering due process for families. For those recommendations, see NCCPR’s Due Process Agenda.
1. Doing nothing. There are, in fact, cases in which the investigated family is entirely innocent and perfectly capable of taking good care of their children without any “help” from a child welfare agency. In such cases, the best thing the child protective services worker can do is apologize, shut the door, and go away.
2. Basic, concrete help. Sometimes it may take something as simple as emergency cash for a security deposit, a rent subsidy, or a place in a day care center (to avoid a “lack of supervision” charge) to keep a family together. Indeed, the federal Department of Housing and Urban Development has a special program, called the Family Unification Program, in which Section 8 vouchers are reserved for families where housing is the issue keeping a family apart or threatening its breakup. Localities must apply for these subsidies. By doing so, they effectively acknowledge what they typically deny: that they do, in fact, tear apart families due to lack of housing. CONTACT: Ruth White, Executive Director National Center for Housing and Child Welfare (866) 790-6766, info@nchcw.org, www.nchcw.org. Ms. White also is a member of the NCCPR Board of Directors.
3. Intensive Family Preservation Services programs. The first such program, Homebuilders, in Washington State, was established in the mid-1970s. The largest replication is in Michigan, where the program is called Families First. The very term “family preservation” was invented specifically to apply to this type of program, which has a better track record for safety than foster care. The basics concerning how these programs work – and what must be included for a program to be a real “family preservation” program — are in NCCPR Issue Papers 10 and 11. Issue Paper 11 lists studies proving the programs’ effectiveness. CONTACTS: Charlotte Booth, executive director, Homebuilders (253) 874-3630, info@institutefamily.org, Susan Kelly, former director, Families First (734) 547-9164, skelly@casey.org
4. The Alabama “System of Care.” This is one of the most successful child welfare reforms in the country. The reforms are the result of a consent decree growing out of a lawsuit brought by the Bazelon Center for Mental Health Law. The consent decree requires the state to rebuild its entire system from the bottom up, with an emphasis on keeping families together. The rate at which children are taken from their homes is among the lowest in the country, and re-abuse of children left in their own homes has been cut sharply. An independent monitor appointed by the court has found that children are safer now than before the changes. CONTACTS: Ira Burnim, Legal Director, Bazelon Center for Mental Health Law (202) 467-5730, ext. 129. Mr. Burnim also is a member of the NCCPR Board of Directors. The Bazelon Center also has published a book about the Alabama reforms. Paul Vincent, Child Welfare Policy and Practice Group, Montgomery, Ala. (334) 264-8300. Mr. Vincent ran the child protection system in Alabama when the lawsuit was filed. He worked closely with the plaintiffs to develop and implement the reform plan. Ivor Groves, independent, court-appointed monitor, (850) 422-8900.
5. Family to Family. This is a multi-faceted program developed by the Annie E. Casey Foundation (which also helps to fund NCCPR). One element of the program, Team Decisionmaking often is confused with the entire program, which has many more elements. The program is described at the Casey website A comprehensive outside evaluation of the program, found that it led to fewer placements, shorter placements, and less bouncing of children from foster home to foster home – with no compromise of safety. CONTACT: Gretchen Test, Annie E. Casey Foundation (410) 547-6600.
6. Community/Neighborhood Partnerships for Child Protection. These partnerships, overseen by the Center for the Study of Social Policy in Washington, are similar to the Family to Family projects. They mobilize formal and informal networks of helpers to prevent maltreatment and avoid needless foster care placement. Partnerships in Florida’s Duval County, St. Louis, Mo. and Georgia have reduced placements and improved safety. CONTACT: Marno Batterson, Center for the Study of Social Policy, (641) 792-5918, marno.batterson@cssp.org.
7. The turnaround in Pittsburgh. In the mid-1990s, the child welfare system in Pittsburgh and surrounding Allegheny County, Pa. was typically mediocre, or worse. Foster care placements were soaring and those in charge insisted every one of those placements was necessary. New leadership changed all that. Since 1997, the foster care population has been cut dramatically. When children must be placed, nearly half of all placements are with relatives and siblings are kept together 82 percent of the time.
They’ve done it by tripling the budget for primary prevention, more than doubling the budget for family preservation, embracing innovations like Family to Family and adding elements of their own, such as housing counselors in every child welfare office so families aren’t destroyed because of housing problems. And children are safer. Reabuse of children left in their own homes has declined and there has been a significant and sustained decline in child abuse fatalities. CONTACT: Karen Blumen, Allegheny County Department of Human Services, Office of Community Relations (412) 350-5707.
8. Reform in El Paso County, Colorado. By recognizing the crucial role of poverty in child maltreatment, El Paso County reversed steady increases in its foster care population. The number of children in foster care declined significantly – and the rate of reabuse of children left in their own homes fell below the state and national averages, according to an independent evaluation by the Center for Law and Social Policy. CONTACT: Barbara Drake, El Paso County Department of Human Services, (719) 444-5532.
9. The Bridge Builders, Bronx, New York. Combine the giving and guidance of ten foundations with the knowledge and enthusiasm of eight community-based agencies, add extensive involvement of neighborhood residents in outreach, service delivery and governance, then partner with the child protective services agency and what do you get? A significant reduction in the number of children taken from their homes, with no compromise of safety, in a neighborhood that is among those losing more children to foster care than any other in New York City. That’s the record of the Bridge Builders Initiative in the Highbridge section of The Bronx. (NCCPR received a grant to assist the Bridge Builders with media work). CONTACTS: Joe Jenkins, executive director, (718) 681-2222;Jenkinsj@highbridgelife.org, John Rios, Jewish Child Care Association of New York, co-chair Bridge Builders Executive Committee, riosj@jccany.org
10. The transformation in Maine. After a little girl named Logan Marr was taken needlessly from her mother only to be killed by a foster mother who formerly worked for the child welfare agency, the people of Maine refused to settle for pat answers about background checks and licensing standards. They zeroed in on the fact that Maine had one of the highest proportions of children in the country trapped in foster care. The combination of grassroots demands for change from below and new leadership at the top led to a dramatic reduction in the number of children taken away over the course of a year. And while the state still has a long way to go in using kinship care, the proportion of children placed with relatives has more than doubled. It’s all been done without compromising safety, earning the support of the state’s independent child welfare ombudsman. CONTACTS: Dean Crocker, Vice President for Programs, Maine Children’s Alliance, (207) 623-1868 ext. 212, dcrocker@mekids.org; Mary Callahan, founder Maine Alliance for DHS Accountability and Reform, (207) 353-4223, maryec_98@yahoo.com
11.Changing financial incentives. While not a program per se, making this change spurs both government and private child welfare agencies to come up with all sorts of innovations. This is clear from the experiences of two states.
Florida obtained a waiver allowing it to trade in its right to an unlimited open-ended entitlement to foster care money (discussed in detail in NCCPR Issue Paper 12) for a flat grant that can be used for better alternatives as well. The result: a dramatic turnaround in what was once one of the nation’s worst systems. Entries into care are down significantly and independent evaluators say child safety improved.
Illinois has focused on changing incentives for private agencies. Until the late 1990s, Illinois reimbursed those agencies the way other states typically do: They were paid for each day they kept a child in foster care. Thus, agencies were rewarded for letting children languish in foster care and punished for achieving permanence. Now those incentives have been reversed, in part because of pressure from the Illinois Branch of the ACLU, which won a lawsuit against the child welfare system. Today, private agencies in Illinois are rewarded both for adoptions (which often are conversions of kinship placements to subsidized guardianships) and for returning children safely to their own homes. They are penalized for prolonged stays in foster care. The foster care population plummeted, and children are safer. Today, Illinois takes away children at one of the lowest rates in the country. Independent, court-appointed monitors have found that child safety has improved. CONTACT: Ben Wolf, Illinois Branch, ACLU, (312) 201-9760, ext. 420, bwolf@aclu-il.org
12. Due process of law. Even the best programs are no substitute for due process. That means court hearings in child welfare cases should be open. But that also means it’s urgent for accused parents to have meaningful legal representation from well-trained attorneys with low caseloads and solid support staff. It’s not a matter of getting “bad” parents off, it’s a matter of challenging case records that often are rife with error, countering cookie-cutter “service plans” that provide no services and ensuring that families get the help they need. A pilot project to provide such representation in some counties in Washington State has had such success in safely keeping families together that even the Attorney General’s office, which represents the child welfare agency in these cases, favors expanding it. FURTHER INFORMATION AND CONTACTS are available from the Washington State Office of Public Defense at this website: http://www.opd.wa.gov/Parents%20Representation%20Program.htm And for additional due process recommendations, see NCCPR’s Due Process Agenda.
Updated, January 1, 2010
http://nccpr.info/solutions-services/
Isabella Brooke Knightly and Austin Gamez-Knightly
In Memory of my Loving Husband, William F. Knightly Jr. Murdered by ILLEGAL Palliative Care at a Nashua, NH Hospital
Thursday, January 7, 2010
Abuse Within America's Foster Care System - Children at Risk
Abuse Within America's Foster Care System - Children at Risk
January 06, 2010 by Janey Falk
Search more A Foster Care Survivor - Part 1
America has a nasty habit of stigmatizing those less fortunate. Children, our most vulnerable citizens, struggle on an every day basis to learn what it means to grow up and be responsible but those children who are unfortunate enough to enter this world in an abusive home have their
chances of a decent life slashed severely by society if not by the trauma they are forced to live through.
In a 2006 ABC News Report (Primetime), Dr. Wade Horn, former child psychologist and Director of the Department of Health and Human Services for George W. Bush, stated that "the foster care system was a giant mess and should just be blown up". He was most critical of the Federal government's way of funding foster care, "$5 billion that goes mostly to keeping kids in foster care". According to Dr. Wade, there was no provisions for treatment, prevention, family support or "aging out" (turned out at 18 yrs. of age). The ways things were set up is to keep everything exactly as they were, supporting the status quo, as it already was. He wanted to rethink foster care on a national level.
Dr. Wade's interview in 2006 was an eye opener for many but anyone who takes a serious look at the foster care system before the year 2000 would either be horrified or in denial that America's children have been put at such risk and many of their problems in adult life can be traced to their time in foster homes.
For the rest of this article, please go to:
http://www.associatedcontent.com/article/2550931/abuse_within_americas_foster_care_system.html?cat=47
January 06, 2010 by Janey Falk
Search more A Foster Care Survivor - Part 1
America has a nasty habit of stigmatizing those less fortunate. Children, our most vulnerable citizens, struggle on an every day basis to learn what it means to grow up and be responsible but those children who are unfortunate enough to enter this world in an abusive home have their
chances of a decent life slashed severely by society if not by the trauma they are forced to live through.
In a 2006 ABC News Report (Primetime), Dr. Wade Horn, former child psychologist and Director of the Department of Health and Human Services for George W. Bush, stated that "the foster care system was a giant mess and should just be blown up". He was most critical of the Federal government's way of funding foster care, "$5 billion that goes mostly to keeping kids in foster care". According to Dr. Wade, there was no provisions for treatment, prevention, family support or "aging out" (turned out at 18 yrs. of age). The ways things were set up is to keep everything exactly as they were, supporting the status quo, as it already was. He wanted to rethink foster care on a national level.
Dr. Wade's interview in 2006 was an eye opener for many but anyone who takes a serious look at the foster care system before the year 2000 would either be horrified or in denial that America's children have been put at such risk and many of their problems in adult life can be traced to their time in foster homes.
For the rest of this article, please go to:
http://www.associatedcontent.com/article/2550931/abuse_within_americas_foster_care_system.html?cat=47
Boy, 11, charged with killing father's fiancee, who was 8 months pregnant
Boy, 11, charged with killing father's fiancee, who was 8 months pregnant
BY Elizabeth Hays
DAILY NEWS STAFF WRITER
Updated Saturday, February 21st 2009, 11:02 PM
APJordan Brown was charged as an adult in the shooting death of Kenzie Marie Houk.
WTAE-TVKenzie Houk, 8 months pregnant, was shot to death in her bed. Her fiancee's 11-year-old son has been charged. Take our Poll
The youngest killers
What should happen to children who commit murder?
They should get help but be locked up
They should get only therapy and rehab
If guns were used, owners get punished
Related NewsArticles
9-year-old boy pleads guilty in double murderArrest in murders of Curry's ex and her babyPolice close to arrest in Chandra Levy cold caseAn 11-year-old Pennsylvania boy blew away his father's eight-months-pregnant fiancée - then calmly got on the bus and went to school, police and relatives said Saturday.
Jordan Brown was consumed with jealousy over Kenzie Houk's unborn baby and allegedly shot her dead as she lay in bed in the family's Wampum, Pa., farmhouse Friday morning.
Houk was just two weeks from giving birth - and Jordan was charged as an adult with two counts of criminal homicide, including one for the fetus, state police said.
"It's tragic," said a relative who did not want to be named. "They were to be married. He was jealous."
The young suspect's father, identified by family members as Christopher Brown, was at work at the time of the shooting, relatives said.
Jordan was being held last night in the Lawrence County, Pa., jail, but was in a cell away from the adult inmates.
Police did not disclose a motive, but relatives said Jordan was upset about the pregnancy.
"They knew it was going to be a boy. She had just gone to the doctor," one said. "Chris was paying more attention to Kenzie and the new boy coming along, so he was upset."
Police were shocked by the suspect's age.
"The whole thing is beyond belief," said Lt. Steve Ignatz.
Cops said Jordan shot Houk once in the head sometime between 7 a.m. and 8 a.m. with his youth-model 20-gauge shotgun - which he had used to win a turkey at a local shooting competition two weeks earlier.
He then left the house as if nothing had happened and caught the bus to school with Houk's 8-year-old daughter, police and relatives said.
The girl later told police what Jordan had done.
"She didn't actually eyewitness the shooting. She saw him with what she believed to be a shotgun and heard a loud bang," said Lawrence County District Attorney John Bongivengo.
Houk's body was discovered that morning by her younger daughter, who had just celebrated her fourth birthday the night before.
The girl ran out of the house, crying, and flagged down tree trimmers working near the house, about 35 miles northwest of Pittsburgh.
Cops found the shotgun beneath Jordan's bed.
Jordan initially tried to throw cops off with a false lead, telling them of a suspicious black truck he saw on his family's property the morning of the slaying.
The boy's lawyer Dennis Elisco said he'll try to get the case moved to juvenile court.
Elisco said Christopher Brown was "in a state of actual shock and disbelief." The father said his son had no prior problems with Houk.
Neighbors were horrified someone so young could be so cold-blooded.
"It's just so sad that an 11-year-old could do that," said Sara Johnston, 53, a grandmother who lives nearby. "It's sick."
"My heart aches for them all - even for the boy who did it," said another neighbor who did not want to be identified. "What makes a child do something like at 11 years old?"
ehays@nydailynews.com
Read more: http://www.nydailynews.com/news/national/2009/02/21/2009-02-21_boy_11_charged_with_killing_fathers_fian.html#ixzz0bw4iwRFd
BY Elizabeth Hays
DAILY NEWS STAFF WRITER
Updated Saturday, February 21st 2009, 11:02 PM
APJordan Brown was charged as an adult in the shooting death of Kenzie Marie Houk.
WTAE-TVKenzie Houk, 8 months pregnant, was shot to death in her bed. Her fiancee's 11-year-old son has been charged. Take our Poll
The youngest killers
What should happen to children who commit murder?
They should get help but be locked up
They should get only therapy and rehab
If guns were used, owners get punished
Related NewsArticles
9-year-old boy pleads guilty in double murderArrest in murders of Curry's ex and her babyPolice close to arrest in Chandra Levy cold caseAn 11-year-old Pennsylvania boy blew away his father's eight-months-pregnant fiancée - then calmly got on the bus and went to school, police and relatives said Saturday.
Jordan Brown was consumed with jealousy over Kenzie Houk's unborn baby and allegedly shot her dead as she lay in bed in the family's Wampum, Pa., farmhouse Friday morning.
Houk was just two weeks from giving birth - and Jordan was charged as an adult with two counts of criminal homicide, including one for the fetus, state police said.
"It's tragic," said a relative who did not want to be named. "They were to be married. He was jealous."
The young suspect's father, identified by family members as Christopher Brown, was at work at the time of the shooting, relatives said.
Jordan was being held last night in the Lawrence County, Pa., jail, but was in a cell away from the adult inmates.
Police did not disclose a motive, but relatives said Jordan was upset about the pregnancy.
"They knew it was going to be a boy. She had just gone to the doctor," one said. "Chris was paying more attention to Kenzie and the new boy coming along, so he was upset."
Police were shocked by the suspect's age.
"The whole thing is beyond belief," said Lt. Steve Ignatz.
Cops said Jordan shot Houk once in the head sometime between 7 a.m. and 8 a.m. with his youth-model 20-gauge shotgun - which he had used to win a turkey at a local shooting competition two weeks earlier.
He then left the house as if nothing had happened and caught the bus to school with Houk's 8-year-old daughter, police and relatives said.
The girl later told police what Jordan had done.
"She didn't actually eyewitness the shooting. She saw him with what she believed to be a shotgun and heard a loud bang," said Lawrence County District Attorney John Bongivengo.
Houk's body was discovered that morning by her younger daughter, who had just celebrated her fourth birthday the night before.
The girl ran out of the house, crying, and flagged down tree trimmers working near the house, about 35 miles northwest of Pittsburgh.
Cops found the shotgun beneath Jordan's bed.
Jordan initially tried to throw cops off with a false lead, telling them of a suspicious black truck he saw on his family's property the morning of the slaying.
The boy's lawyer Dennis Elisco said he'll try to get the case moved to juvenile court.
Elisco said Christopher Brown was "in a state of actual shock and disbelief." The father said his son had no prior problems with Houk.
Neighbors were horrified someone so young could be so cold-blooded.
"It's just so sad that an 11-year-old could do that," said Sara Johnston, 53, a grandmother who lives nearby. "It's sick."
"My heart aches for them all - even for the boy who did it," said another neighbor who did not want to be identified. "What makes a child do something like at 11 years old?"
ehays@nydailynews.com
Read more: http://www.nydailynews.com/news/national/2009/02/21/2009-02-21_boy_11_charged_with_killing_fathers_fian.html#ixzz0bw4iwRFd
Wednesday, January 6, 2010
NH DHHS - State’s Suicide Prevention Plan Released
NH DHHS - State’s Suicide Prevention Plan Released
Wednesday, January 6, 2010 at 08:27AM
Concord, NH - New Hampshire’s Suicide Prevention Council is announcing the release of the revised State Suicide Prevention Plan. The plan serves as a blueprint to increase awareness of suicide as a public health problem and to guide suicide prevention activities in the State.
The Suicide Prevention Council was legislatively established in 2008 and has received strong support from the Governor’s Office. “New Hampshire has become a national model for our suicide prevention efforts with veterans, service members and their families,” said Governor John Lynch. “We have also developed a network of support for individuals who have lost a loved one to suicide. It is important that we continue to work to improve our suicide prevention efforts and continue to be a national leader.”
Although New Hampshire has made great strides in suicide prevention efforts, suicide remains the second leading cause of death (after accidental injury) among New Hampshire youth and young adults up to age 34, and the fourth leading cause of death in adults up to age 55. Suicide remains a major concern for citizens of all ages; everyone can help to prevent suicide. Warning signs include: talking about death or dying; withdrawing from family and friends; anger/rage; hopelessness; increased use of alcohol or other drugs; and mood changes. If you are worried about someone you think is at risk of suicide call the National Suicide Prevention Hotline Lifeline at 1-800-273-TALK (8255). (Are our illegally stolen children even being considered in this plan? God knows how many of them have already tried to commit suicide. I know my grandson was one of them.)(How many of these children have already committed suicide?)
The original Suicide Prevention Plan was established in 2004. While New Hampshire has accomplished a great deal since then, the new plan will go even further in addressing this public health problem. The process of updating the State Suicide Prevention Plan has been a collaboration among many partners including individuals, state agencies and private organizations. The Suicide Prevention Council looks forward to moving ahead with guiding implementation of the new State Plan.
For more information on the State Suicide Prevention Council, please contact Jo Moncher at jamoncher@dhhs.state.nh.us
http://www.nhinsider.com/press-releases/2010/1/6/nh-dhhs-states-suicide-prevention-plan-released.html
Wednesday, January 6, 2010 at 08:27AM
Concord, NH - New Hampshire’s Suicide Prevention Council is announcing the release of the revised State Suicide Prevention Plan. The plan serves as a blueprint to increase awareness of suicide as a public health problem and to guide suicide prevention activities in the State.
The Suicide Prevention Council was legislatively established in 2008 and has received strong support from the Governor’s Office. “New Hampshire has become a national model for our suicide prevention efforts with veterans, service members and their families,” said Governor John Lynch. “We have also developed a network of support for individuals who have lost a loved one to suicide. It is important that we continue to work to improve our suicide prevention efforts and continue to be a national leader.”
Although New Hampshire has made great strides in suicide prevention efforts, suicide remains the second leading cause of death (after accidental injury) among New Hampshire youth and young adults up to age 34, and the fourth leading cause of death in adults up to age 55. Suicide remains a major concern for citizens of all ages; everyone can help to prevent suicide. Warning signs include: talking about death or dying; withdrawing from family and friends; anger/rage; hopelessness; increased use of alcohol or other drugs; and mood changes. If you are worried about someone you think is at risk of suicide call the National Suicide Prevention Hotline Lifeline at 1-800-273-TALK (8255). (Are our illegally stolen children even being considered in this plan? God knows how many of them have already tried to commit suicide. I know my grandson was one of them.)(How many of these children have already committed suicide?)
The original Suicide Prevention Plan was established in 2004. While New Hampshire has accomplished a great deal since then, the new plan will go even further in addressing this public health problem. The process of updating the State Suicide Prevention Plan has been a collaboration among many partners including individuals, state agencies and private organizations. The Suicide Prevention Council looks forward to moving ahead with guiding implementation of the new State Plan.
For more information on the State Suicide Prevention Council, please contact Jo Moncher at jamoncher@dhhs.state.nh.us
http://www.nhinsider.com/press-releases/2010/1/6/nh-dhhs-states-suicide-prevention-plan-released.html
Cross-Examining the Young Child in a Sexual Abuse Case: General Thoughts
Cross-Examining the Young Child in a Sexual Abuse Case: General Thoughts
As any parent understands, the young child's world is one where reality and fantasy often merge. General Thoughts on cross-examining young children.
January 06, 2010 /24-7PressRelease/ -- Cross-Examining the Young Child in a Sexual Abuse Case: General Thoughts
Article provided by RICHARD LOUGEE
Visit us at http://www.lougeelaw.com
"When are we going to give up, in all civilized nations, listening to children in courts of law?"
Psychologist J. Varondonck, 1911
"A witness wholly without capacity is difficult to imagine."
Advisory Committee Note on Rule 601, F.R.E.
As any parent understands, the young child's world is one where reality and fantasy often merge. And yet this same parent, when called as juror in a case alleging child sexual abuse, will often abandon her own common sense and participate in the prosecutor's call to engage in a mock exercise of civic virtue: protecting a child by presuming guilt in spite of the evidence. In the end, the goal of the defense attorney is to expose this approach for what it is: If adults are seeking to convict the defendant out of their own emotional needs, that's "bad touching", not civic virtue. (Paraphrased from a New York Times article.) Accordingly, it is essential the defense attorney understand, articulate and resolve the conflict jurors confront in these cases: an instinctive and understandable desire to protect the child so strong it can overcome reason while at the same time an appreciation of the importance of treating the accused fairly.
Thus, there is one theme around which the attorney must structure his defense: the child the government has brought into the courtroom is indeed a victim--but not a victim of anything the defendant has done. Rather, the child is victim of an investigative and pre-trial process which has so corrupted the reliability of her testimony that she has become the instrument of an adult agenda. The jury must understand that as harmful as it is for a 5 year-old girl to be sexually abused by her father, it may ultimately be even more harmful if she discovers when she is 18 or 19 that she is the reason her innocent father is serving a life sentence.
With this theme in mind, preparation for cross-examining the child involves extensive pre-trial investigation and discovery. It is important to understand, however, that the "real investigation" of these cases may not be found in police reports or transcribed interviews. In Pima County, Arizona, for example, the investigation and prosecution of cases alleging sexual abuse of children is governed by a protocol under which all of the agencies involved in such cases have agreed to operate as a "team". These agencies include:
1. The Pima County Attorney's Office
2. All police agencies in Pima County
3. Child Protective Services
4. The Southern Arizona Child Advocacy Center (where videotaped witness interviews and medical evaluations are conducted).
The existence of this protocol went for years undisclosed to defense counsel. When I learned about it in a case approximately two years ago, I discovered it had significance in 2 critical ways:
1. Each and every document generated during an investigation of a child sexual abuse case was freely available to each agency governed by the protocol. Thus, Child Protective Service records, deemed confidential by statute and previously disclosed at the whim of the agency, became fully discoverable under Brady and Kyles because shared with the police and the prosecutor during the investigation of the case.
2. Because of the confidentiality afforded Child Protective Services records, much of the investigation of these cases was delegated to Child Protective Service workers where critical information remained buried in their files. This allowed prosecutors to adopt the "I can't disclose what I don't know about" approach.
Attached is an "Agreement" which has been routinely used in Pima County, Arizona by Child Protective Service workers involving allegations of in-home sexual abuse for over 10 years and never disclosed to defense counsel. Testimony in a recent hearing established the wife or girlfriend of a man accused of allegations of in-home sexual abuse has been required as a matter of course to sign the agreement to retain custody of her child. Also attached are two motions addressing the use of the "Agreement" and the disclosure of all Child Protective Service records.
The importance of obtaining the complete Child Protective Services records discussed above cannot be overstated. Besides the substantive value of the information to the defense, the clandestine and coercive aspects of the investigation becomes apparent and can be powerful evidence supporting the defense theme of the child as the victim of an unfair and corrupt government investigation.
Obviously obtaining the Child Protective Services records are just part of the pre-trial investigative and disclosure process. The immediate use of all of the information obtained about the child and the circumstances surrounding the allegations and the official investigation is to challenge the competency of the child by pre-trial motion. The pre-trial competency motion is essential where the state's case is based on the child's testimony and is uncorroborated by medical testimony or other evidence. The focus of the competency hearing should be on the divergence between what the child first reported to have happened and what she now perceives to be the actual event. Obviously, coercion of the custodial parent, suggestive interviews, constant approbation, tendentious counseling and all other aspects of the state's "investigation" which have affected the child's current view of reality and have shaped her testimony are relevant to the competency issue. The purpose of this hearing is to convince the court that the state's "investigation" has not been an objective fact-finding process but a mere corroborative exercise where the "perpetrator's" guilt was presumed from the moment of "disclosure". And the real harm caused by the flawed investigative methods of the state's interviewers, physicians, counselors, et al is that no one can ever know what, if anything, really happened. The state has contaminated the crime scene-the child's view of reality- and the evidence from the scene is now unreliable. The argument is it violates due process, fundamental principles of fairness, to try a man with unreliable and uncorroborated evidence.
Assuming you lose the competency hearing, as you probably will, you will inevitably have to question the child at trial. How, then, do you cross-examine the 5 year old, dressed for court like Shirley Temple, accompanied by her mother and a victim-witness representative, doted on by the judge and thoroughly prepared to tell the jury the horrible acts she now believes the defendant committed? My experience suggests the following approach:
1. With a gentle but serious tone. You must remember, and the jury must be aware, that you are probably the first adult to talk to the child since the time the accusations first arose who has not accepted uncritically her every word and praised her for her courage. Have the child acknowledge each and every time she has discussed the allegations. Talk to her about the circumstances of these contacts and the praise and support she has received. These are not unpleasant topics and she will likely discuss them freely.
2. The jury is unlikely to believe any defense suggesting the young child has the sophistication to develop a motive to fabricate the claims against the defendant. Do not cross-examine her. She is not an adult and "Isn't it true you told..." questions are inappropriate. Proving a 5 year old has given inconsistent statements is not going to impress a jury. And since your defense is the suggestive and confirmatory investigative techniques used by the state created the allegations in the indictment, not actual events as related by the child, questioning the child about the specific allegations gives them a legitimacy inconsistent with your theory of the case. Obviously an exception to this rule exists where the child has made a clearly fantastic claim such as seeing a large tattoo of a bird on your client's penis (Note: Confirm before trial he has none) or that other specific individuals witnessed the event who didn't. But in the routine case where the facts are plausible and the alleged events unwitnessed, using the child's testimony to establish specific inconsistencies is unwise.
3. As you emphasized to the judge at the competency hearing, you must convey to the jury you are not attacking the "credibility" of the child in the traditional sense. A 4 year old is not a liar nor a hussy regardless of how many conflicting statements she has given nor how sexualized she is. If the moment ever arises during your cross-examination of the 4 year old when you sense you are about to lapse into anything approaching an attack, return to counsel table for a drink of water and regroup. As discussed below, even if you must question the child concerning the evolution of her conflicting statements, your tone must be non-aggressive and non-judgmental.
4. It is critical the judge understands your defense is not based on the untruthfulness of the child's testimony but rather on the manner in which it evolved. For the inconsistencies in the child's statements should be elicited from the child's adult interviewers, not from the child herself. To do so, you must make it clear from the outset that you are challenging the methodology of those who have questioned the child and that her answers are evidence of the effectiveness of that methodology in contaminating her testimony and are not being elicited to prove the untruthfulness of the child's testimony. For if the judge perceives your questions of the adults as impeachment of the child's trial testimony, you may be required to confront the child with each of her prior statements.
5. There is a danger, however, in convincing the court the child's prior statements are not hearsay. The astute prosecutor may attempt to introduce as evidence the videotape of the child's interview or interviews. And if there is one thing you don't want in the jury room during deliberations, it's that videotape. For that tape will be played and replayed and will dominate the jury deliberations to the exclusion of all other evidence. Coming from a television screen, the impact of the evidence is subliminally enhanced. Thus, you should obtain a pretrial ruling that your attack on methodology will not permit admission of the videotape as an exhibit. Stress to the court that the impact of the videotape as an exhibit would be prejudice of the highest order. If necessary, call an expert before trial to establish this prejudice. If in spite of your efforts, however, the court indicates the videotape will be admitted if you elicit the child's answers from her adult interviewers, restructure your examination of the adult interviewers to avoid this problem. (Remember if the videotape remains hearsay and your claim is the child's first account wasn't fabricated but misinterpreted or elicited by suggestive questioning, the state can't introduce it to rebut a claim of recent fabrication. Tome v. United States, 513 U.S. 150, 115 S.Ct. 696, 130 L.Ed 2d 574 (1995))
I have attached a portion of my cross-examination of a 6 year old. On page 119, I ask the child a potentially dangerous question -- was her mother coaching her in the courtroom. The reason I felt safe asking the question was immediately after the child's direct examination, the court recessed for a short period. During the recess, an individual observing the trial whom I didn't know, but who appeared completely credible, told me he had watched the mother using finger signals from her seat in the back of the courtroom during the child's testimony. More importantly, he told me he had noticed 4 or 5 jurors who appeared to be watching the mother's coaching. Assuming this information to be accurate, I knew I would have the support of those 4 or 5 jurors when the issue came up during jury deliberations as it invariably did. On those rare occasions during trial when you can transform jurors into witnesses in your case as to a material issue, seize the moment. A juror who is your witness will soon be your advocate assuming your conduct during the trial has not detracted from your personal ethos- your presence in the courtroom as the person the jurors most trust. Jurors may respect the judge and like the prosecutor-but they should believe you. Once you have gained this trust, even the judge's hostility can be turned to your advantage if you challenge her respectfully while exposing her conduct as unfair.
Indeed, this notion of personal ethos is absolutely essential to your cross-examination of the child witness. It is an emotional bond you have fostered with the jury (or at least some of them) which can help offset the strong sympathy the jurors will have for the child merely because she is being made to testify. Presumably you have already asked the jurors in voir dire if they will somehow be displeased with you when you must stand and ask a 5-year-old questions you don't really want to ask. At the same time, you had the prospective panel agreeing that Mr. Wright is entitled to a fair trial and only your questions could provide that fair trial.
Having thus prepared the jurors for what you are about to do, and now looked to by some of the jurors as the one individual who with subdued passion is fighting for what he truly believes-his client's right to be treated fairly (because innocent)-the child becomes a less formidable witness. Remaining constantly aware that the child is a victim (but not of your client) and that 5 year olds don't lie, your questions should be calculated to develop your theme -- for adults to use a child to convict your innocent client to satisfy their own emotional needs is the worst kind of "bad touching".
The defense attorney who fully comprehends what his adversaries are about in a child sex crime prosecution will necessarily be angered as he confronts a process fuelled by emotion, directed by intuition rather than facts and skewed by special rules and statutes. When this anger is real, it can arouse Ciceronian rage. But the rage is never misdirected: the responding uniformed officer who reported what he was told is not the villain; the teacher who complied with the mandatory reporting laws is not the villain; the victim's siblings are rarely villains; indeed the mother now adamantly convinced of you client's guilt is not a villain given the Orwellian process of coercion and recruitment to which she was subjected; and never, ever, is the 4 year old the villain.
While the prosecutor will normally spend several minutes with the child talking about her favorite games and what she did during the summer, your cross-examination should omit this folderol. This is not a game but serious stuff. Often I will begin my cross-examination by discussing with the child her first witness interview where she sat in a room full of toys on the floor with her interviewer. She has toys at home. When she plays with her toys, does she sometimes "pretend"? It's fun to pretend, isn't it? And when you play with your doll you can pretend she is real and goes shopping? But you don't pretend your doll has a red dress when she really has a blue dress? That's not "pretend" is it?
The purpose of this line of questioning is two-fold:
1. The court will often ask the child if his black pencil is really yellow -- if the child says, no, she's competent. Your questions about "pretend" will convey to the jury that knowing her colors has nothing to do with the matters at hand.
2. Initiating a critical interview in a setting which suggests play requires the child to shift gears once the interview becomes substantive. This can be developed with the adult witnesses.
Questions of this type should never be followed with questions which suggest their purpose or call for a conclusion. If the child says she plays "pretend" with her doll at home, stop. Your point is made. Discussing with the child if she knows when it's "okay" to pretend and when its not "okay" is one question too many.
Simple, short questions of fact are the best approach. Not only do you want the child to understand the question, you want the jury to know the child understood the question. A 4 year old probably isn't going to know when mommy and daddy took a trip to Las Vegas. She will remember the name of her babysitter; she will know she had a babysitter because mommy and daddy weren't home; and she will remember the present she got when mommy and daddy came home. If where and when mommy and daddy went is important, some other witness can provide this information.
Also remember, 4 year olds haven't reviewed their transcribed statements. Referring to transcripts, other than to direct the prosecutor to a specific source for your question, is pointless. The best practice is to guide the child to recall the interview with simple facts she will remember. You went with your mommy? Another lady drove the car? You went to a big building? The big building was right beside Toy's R Us? In the big building was a room with dolls, and blocks and a little table? You talked to a lady in that room? After you talked to this lady, you watched yourself on television? You saw on television the room with the dolls and blocks and the little table? And you were on television in that room? And the lady you talked to in that room was on television too? How many times did you watch the television show? Did you see yourself leave the room? Do you remember where you watched the television show? Who was with you when you watched the television show?
The jury now knows the child has reviewed her statement -- but not with transcripts. Accordingly, questions and answers from that interview can be paraphrased if done so accurately. No one expects the child to remember the exact words. If the prosecutor is foolish enough to demand you confront the child with the exact wording from the transcript, do so while making it apparent to the jury this foolish exercise is the prosecutor's idea not yours.
Several years ago at one of these seminars I heard a psychologist observe that young children approach adults as omniscient. That is, the young child rarely is asked for information the child assumes the adult doesn't already have. Being the source of new information is a unique role for many young children who will accordingly look to the adult questioner for signs of the "correct" answers. Thus, it is not difficult when cross-examining a child to establish a rhythm of questioning which will lead the child to agree to virtually any question you ask, even to the point of acknowledging the preposterous. But my experience has taught me this is ineffective and can annoy juries. It is not the way to prove children are susceptible to suggestive questioning. This will be perceived by the jury as unfair and as inconsistent with your constant appeal to the jury's sense of fairness. Furthermore, implicit in your theory of the case is the child is your victim, not the state's, and you don't trick or manipulate your own victim.
While this paper has briefly discussed some general thoughts on questioning the child concerning the specific aspects of the investigation and statements she has previously given, this is not what you want to be doing. Cross-examining the child witness concerning details of the case occurs only because it must: the judge has ruled obtaining this information through the adults opens the door for the state to admit otherwise inadmissible evidence to rebut your attack on methodology. He has considered and denied your argument that rebuttal of this kind is overkill and is so highly prejudicial it will turn the trial into a slow guilty plea.
When and if it is possible, your cross examination of the child is limited and designed to set the stage for your questioning of the true villains: those who purported to "investigate" the case but did so by:
1. Silencing the most important investigative resource, the mother, with a contract demanding acceptance of the state's preconceived notions of the defendant's guilt.
2. Subjecting the child to interviews designed to crystallize claims previously unclear or ambiguous and which often invite embellishment.
3. Rewarding the child's confirmation of her questioner's preconceptions with lavish praise which both reinforces the child's inclination to repeat this version of the events (whether accurate or not) and closes the window to recantation.
4. Calling child advocates, masquerading as physicians, as experts to claim the child's allegations are a "medical history" and that the normal findings in her physical examination "are not inconsistent with the history given".
None of this is fair. Fairness is visceral. It is felt. It is expected of the government by the jurors. And there are very few child abuse cases where the government hasn't disdained fairness by intentionally contaminating the crime scene -- destroying the reliability of what may be its only evidence, the child's testimony. This is unfair to your client. It is unfair to the child. Indeed, it is unfair to the jurors to ask them to make a decision of this magnitude based on what is really corroboration and not investigation. This is "bad touching" of the worst kind for it places us all at risk of being next.
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As any parent understands, the young child's world is one where reality and fantasy often merge. General Thoughts on cross-examining young children.
January 06, 2010 /24-7PressRelease/ -- Cross-Examining the Young Child in a Sexual Abuse Case: General Thoughts
Article provided by RICHARD LOUGEE
Visit us at http://www.lougeelaw.com
"When are we going to give up, in all civilized nations, listening to children in courts of law?"
Psychologist J. Varondonck, 1911
"A witness wholly without capacity is difficult to imagine."
Advisory Committee Note on Rule 601, F.R.E.
As any parent understands, the young child's world is one where reality and fantasy often merge. And yet this same parent, when called as juror in a case alleging child sexual abuse, will often abandon her own common sense and participate in the prosecutor's call to engage in a mock exercise of civic virtue: protecting a child by presuming guilt in spite of the evidence. In the end, the goal of the defense attorney is to expose this approach for what it is: If adults are seeking to convict the defendant out of their own emotional needs, that's "bad touching", not civic virtue. (Paraphrased from a New York Times article.) Accordingly, it is essential the defense attorney understand, articulate and resolve the conflict jurors confront in these cases: an instinctive and understandable desire to protect the child so strong it can overcome reason while at the same time an appreciation of the importance of treating the accused fairly.
Thus, there is one theme around which the attorney must structure his defense: the child the government has brought into the courtroom is indeed a victim--but not a victim of anything the defendant has done. Rather, the child is victim of an investigative and pre-trial process which has so corrupted the reliability of her testimony that she has become the instrument of an adult agenda. The jury must understand that as harmful as it is for a 5 year-old girl to be sexually abused by her father, it may ultimately be even more harmful if she discovers when she is 18 or 19 that she is the reason her innocent father is serving a life sentence.
With this theme in mind, preparation for cross-examining the child involves extensive pre-trial investigation and discovery. It is important to understand, however, that the "real investigation" of these cases may not be found in police reports or transcribed interviews. In Pima County, Arizona, for example, the investigation and prosecution of cases alleging sexual abuse of children is governed by a protocol under which all of the agencies involved in such cases have agreed to operate as a "team". These agencies include:
1. The Pima County Attorney's Office
2. All police agencies in Pima County
3. Child Protective Services
4. The Southern Arizona Child Advocacy Center (where videotaped witness interviews and medical evaluations are conducted).
The existence of this protocol went for years undisclosed to defense counsel. When I learned about it in a case approximately two years ago, I discovered it had significance in 2 critical ways:
1. Each and every document generated during an investigation of a child sexual abuse case was freely available to each agency governed by the protocol. Thus, Child Protective Service records, deemed confidential by statute and previously disclosed at the whim of the agency, became fully discoverable under Brady and Kyles because shared with the police and the prosecutor during the investigation of the case.
2. Because of the confidentiality afforded Child Protective Services records, much of the investigation of these cases was delegated to Child Protective Service workers where critical information remained buried in their files. This allowed prosecutors to adopt the "I can't disclose what I don't know about" approach.
Attached is an "Agreement" which has been routinely used in Pima County, Arizona by Child Protective Service workers involving allegations of in-home sexual abuse for over 10 years and never disclosed to defense counsel. Testimony in a recent hearing established the wife or girlfriend of a man accused of allegations of in-home sexual abuse has been required as a matter of course to sign the agreement to retain custody of her child. Also attached are two motions addressing the use of the "Agreement" and the disclosure of all Child Protective Service records.
The importance of obtaining the complete Child Protective Services records discussed above cannot be overstated. Besides the substantive value of the information to the defense, the clandestine and coercive aspects of the investigation becomes apparent and can be powerful evidence supporting the defense theme of the child as the victim of an unfair and corrupt government investigation.
Obviously obtaining the Child Protective Services records are just part of the pre-trial investigative and disclosure process. The immediate use of all of the information obtained about the child and the circumstances surrounding the allegations and the official investigation is to challenge the competency of the child by pre-trial motion. The pre-trial competency motion is essential where the state's case is based on the child's testimony and is uncorroborated by medical testimony or other evidence. The focus of the competency hearing should be on the divergence between what the child first reported to have happened and what she now perceives to be the actual event. Obviously, coercion of the custodial parent, suggestive interviews, constant approbation, tendentious counseling and all other aspects of the state's "investigation" which have affected the child's current view of reality and have shaped her testimony are relevant to the competency issue. The purpose of this hearing is to convince the court that the state's "investigation" has not been an objective fact-finding process but a mere corroborative exercise where the "perpetrator's" guilt was presumed from the moment of "disclosure". And the real harm caused by the flawed investigative methods of the state's interviewers, physicians, counselors, et al is that no one can ever know what, if anything, really happened. The state has contaminated the crime scene-the child's view of reality- and the evidence from the scene is now unreliable. The argument is it violates due process, fundamental principles of fairness, to try a man with unreliable and uncorroborated evidence.
Assuming you lose the competency hearing, as you probably will, you will inevitably have to question the child at trial. How, then, do you cross-examine the 5 year old, dressed for court like Shirley Temple, accompanied by her mother and a victim-witness representative, doted on by the judge and thoroughly prepared to tell the jury the horrible acts she now believes the defendant committed? My experience suggests the following approach:
1. With a gentle but serious tone. You must remember, and the jury must be aware, that you are probably the first adult to talk to the child since the time the accusations first arose who has not accepted uncritically her every word and praised her for her courage. Have the child acknowledge each and every time she has discussed the allegations. Talk to her about the circumstances of these contacts and the praise and support she has received. These are not unpleasant topics and she will likely discuss them freely.
2. The jury is unlikely to believe any defense suggesting the young child has the sophistication to develop a motive to fabricate the claims against the defendant. Do not cross-examine her. She is not an adult and "Isn't it true you told..." questions are inappropriate. Proving a 5 year old has given inconsistent statements is not going to impress a jury. And since your defense is the suggestive and confirmatory investigative techniques used by the state created the allegations in the indictment, not actual events as related by the child, questioning the child about the specific allegations gives them a legitimacy inconsistent with your theory of the case. Obviously an exception to this rule exists where the child has made a clearly fantastic claim such as seeing a large tattoo of a bird on your client's penis (Note: Confirm before trial he has none) or that other specific individuals witnessed the event who didn't. But in the routine case where the facts are plausible and the alleged events unwitnessed, using the child's testimony to establish specific inconsistencies is unwise.
3. As you emphasized to the judge at the competency hearing, you must convey to the jury you are not attacking the "credibility" of the child in the traditional sense. A 4 year old is not a liar nor a hussy regardless of how many conflicting statements she has given nor how sexualized she is. If the moment ever arises during your cross-examination of the 4 year old when you sense you are about to lapse into anything approaching an attack, return to counsel table for a drink of water and regroup. As discussed below, even if you must question the child concerning the evolution of her conflicting statements, your tone must be non-aggressive and non-judgmental.
4. It is critical the judge understands your defense is not based on the untruthfulness of the child's testimony but rather on the manner in which it evolved. For the inconsistencies in the child's statements should be elicited from the child's adult interviewers, not from the child herself. To do so, you must make it clear from the outset that you are challenging the methodology of those who have questioned the child and that her answers are evidence of the effectiveness of that methodology in contaminating her testimony and are not being elicited to prove the untruthfulness of the child's testimony. For if the judge perceives your questions of the adults as impeachment of the child's trial testimony, you may be required to confront the child with each of her prior statements.
5. There is a danger, however, in convincing the court the child's prior statements are not hearsay. The astute prosecutor may attempt to introduce as evidence the videotape of the child's interview or interviews. And if there is one thing you don't want in the jury room during deliberations, it's that videotape. For that tape will be played and replayed and will dominate the jury deliberations to the exclusion of all other evidence. Coming from a television screen, the impact of the evidence is subliminally enhanced. Thus, you should obtain a pretrial ruling that your attack on methodology will not permit admission of the videotape as an exhibit. Stress to the court that the impact of the videotape as an exhibit would be prejudice of the highest order. If necessary, call an expert before trial to establish this prejudice. If in spite of your efforts, however, the court indicates the videotape will be admitted if you elicit the child's answers from her adult interviewers, restructure your examination of the adult interviewers to avoid this problem. (Remember if the videotape remains hearsay and your claim is the child's first account wasn't fabricated but misinterpreted or elicited by suggestive questioning, the state can't introduce it to rebut a claim of recent fabrication. Tome v. United States, 513 U.S. 150, 115 S.Ct. 696, 130 L.Ed 2d 574 (1995))
I have attached a portion of my cross-examination of a 6 year old. On page 119, I ask the child a potentially dangerous question -- was her mother coaching her in the courtroom. The reason I felt safe asking the question was immediately after the child's direct examination, the court recessed for a short period. During the recess, an individual observing the trial whom I didn't know, but who appeared completely credible, told me he had watched the mother using finger signals from her seat in the back of the courtroom during the child's testimony. More importantly, he told me he had noticed 4 or 5 jurors who appeared to be watching the mother's coaching. Assuming this information to be accurate, I knew I would have the support of those 4 or 5 jurors when the issue came up during jury deliberations as it invariably did. On those rare occasions during trial when you can transform jurors into witnesses in your case as to a material issue, seize the moment. A juror who is your witness will soon be your advocate assuming your conduct during the trial has not detracted from your personal ethos- your presence in the courtroom as the person the jurors most trust. Jurors may respect the judge and like the prosecutor-but they should believe you. Once you have gained this trust, even the judge's hostility can be turned to your advantage if you challenge her respectfully while exposing her conduct as unfair.
Indeed, this notion of personal ethos is absolutely essential to your cross-examination of the child witness. It is an emotional bond you have fostered with the jury (or at least some of them) which can help offset the strong sympathy the jurors will have for the child merely because she is being made to testify. Presumably you have already asked the jurors in voir dire if they will somehow be displeased with you when you must stand and ask a 5-year-old questions you don't really want to ask. At the same time, you had the prospective panel agreeing that Mr. Wright is entitled to a fair trial and only your questions could provide that fair trial.
Having thus prepared the jurors for what you are about to do, and now looked to by some of the jurors as the one individual who with subdued passion is fighting for what he truly believes-his client's right to be treated fairly (because innocent)-the child becomes a less formidable witness. Remaining constantly aware that the child is a victim (but not of your client) and that 5 year olds don't lie, your questions should be calculated to develop your theme -- for adults to use a child to convict your innocent client to satisfy their own emotional needs is the worst kind of "bad touching".
The defense attorney who fully comprehends what his adversaries are about in a child sex crime prosecution will necessarily be angered as he confronts a process fuelled by emotion, directed by intuition rather than facts and skewed by special rules and statutes. When this anger is real, it can arouse Ciceronian rage. But the rage is never misdirected: the responding uniformed officer who reported what he was told is not the villain; the teacher who complied with the mandatory reporting laws is not the villain; the victim's siblings are rarely villains; indeed the mother now adamantly convinced of you client's guilt is not a villain given the Orwellian process of coercion and recruitment to which she was subjected; and never, ever, is the 4 year old the villain.
While the prosecutor will normally spend several minutes with the child talking about her favorite games and what she did during the summer, your cross-examination should omit this folderol. This is not a game but serious stuff. Often I will begin my cross-examination by discussing with the child her first witness interview where she sat in a room full of toys on the floor with her interviewer. She has toys at home. When she plays with her toys, does she sometimes "pretend"? It's fun to pretend, isn't it? And when you play with your doll you can pretend she is real and goes shopping? But you don't pretend your doll has a red dress when she really has a blue dress? That's not "pretend" is it?
The purpose of this line of questioning is two-fold:
1. The court will often ask the child if his black pencil is really yellow -- if the child says, no, she's competent. Your questions about "pretend" will convey to the jury that knowing her colors has nothing to do with the matters at hand.
2. Initiating a critical interview in a setting which suggests play requires the child to shift gears once the interview becomes substantive. This can be developed with the adult witnesses.
Questions of this type should never be followed with questions which suggest their purpose or call for a conclusion. If the child says she plays "pretend" with her doll at home, stop. Your point is made. Discussing with the child if she knows when it's "okay" to pretend and when its not "okay" is one question too many.
Simple, short questions of fact are the best approach. Not only do you want the child to understand the question, you want the jury to know the child understood the question. A 4 year old probably isn't going to know when mommy and daddy took a trip to Las Vegas. She will remember the name of her babysitter; she will know she had a babysitter because mommy and daddy weren't home; and she will remember the present she got when mommy and daddy came home. If where and when mommy and daddy went is important, some other witness can provide this information.
Also remember, 4 year olds haven't reviewed their transcribed statements. Referring to transcripts, other than to direct the prosecutor to a specific source for your question, is pointless. The best practice is to guide the child to recall the interview with simple facts she will remember. You went with your mommy? Another lady drove the car? You went to a big building? The big building was right beside Toy's R Us? In the big building was a room with dolls, and blocks and a little table? You talked to a lady in that room? After you talked to this lady, you watched yourself on television? You saw on television the room with the dolls and blocks and the little table? And you were on television in that room? And the lady you talked to in that room was on television too? How many times did you watch the television show? Did you see yourself leave the room? Do you remember where you watched the television show? Who was with you when you watched the television show?
The jury now knows the child has reviewed her statement -- but not with transcripts. Accordingly, questions and answers from that interview can be paraphrased if done so accurately. No one expects the child to remember the exact words. If the prosecutor is foolish enough to demand you confront the child with the exact wording from the transcript, do so while making it apparent to the jury this foolish exercise is the prosecutor's idea not yours.
Several years ago at one of these seminars I heard a psychologist observe that young children approach adults as omniscient. That is, the young child rarely is asked for information the child assumes the adult doesn't already have. Being the source of new information is a unique role for many young children who will accordingly look to the adult questioner for signs of the "correct" answers. Thus, it is not difficult when cross-examining a child to establish a rhythm of questioning which will lead the child to agree to virtually any question you ask, even to the point of acknowledging the preposterous. But my experience has taught me this is ineffective and can annoy juries. It is not the way to prove children are susceptible to suggestive questioning. This will be perceived by the jury as unfair and as inconsistent with your constant appeal to the jury's sense of fairness. Furthermore, implicit in your theory of the case is the child is your victim, not the state's, and you don't trick or manipulate your own victim.
While this paper has briefly discussed some general thoughts on questioning the child concerning the specific aspects of the investigation and statements she has previously given, this is not what you want to be doing. Cross-examining the child witness concerning details of the case occurs only because it must: the judge has ruled obtaining this information through the adults opens the door for the state to admit otherwise inadmissible evidence to rebut your attack on methodology. He has considered and denied your argument that rebuttal of this kind is overkill and is so highly prejudicial it will turn the trial into a slow guilty plea.
When and if it is possible, your cross examination of the child is limited and designed to set the stage for your questioning of the true villains: those who purported to "investigate" the case but did so by:
1. Silencing the most important investigative resource, the mother, with a contract demanding acceptance of the state's preconceived notions of the defendant's guilt.
2. Subjecting the child to interviews designed to crystallize claims previously unclear or ambiguous and which often invite embellishment.
3. Rewarding the child's confirmation of her questioner's preconceptions with lavish praise which both reinforces the child's inclination to repeat this version of the events (whether accurate or not) and closes the window to recantation.
4. Calling child advocates, masquerading as physicians, as experts to claim the child's allegations are a "medical history" and that the normal findings in her physical examination "are not inconsistent with the history given".
None of this is fair. Fairness is visceral. It is felt. It is expected of the government by the jurors. And there are very few child abuse cases where the government hasn't disdained fairness by intentionally contaminating the crime scene -- destroying the reliability of what may be its only evidence, the child's testimony. This is unfair to your client. It is unfair to the child. Indeed, it is unfair to the jurors to ask them to make a decision of this magnitude based on what is really corroboration and not investigation. This is "bad touching" of the worst kind for it places us all at risk of being next.
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Disclaimer:
If you have any questions regarding information in this press release, please contact the person listed in the contact module of this page. Please do not attempt to contact 24-7 Press Release. We are unable to assist you with any information regarding this release. 24-7 Press Release disclaims any content contained in this press release. Please see our complete Terms of Service disclaimer for more information.
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An Admission that Court-Appointed Defense Attorneys in CPS Cases Are in Bed with CPS - Right Out of the Horse's Mouth Barton Clinic 2008 Intern Report
Barton Clinic Summer 2008 Intern Report
Intern: Natalece Washington
Assignment: Jackson County Juvenile Court Attorney GAL Division
School: University of Georgia School of Law
As an intern in the Juvenile Court of Banks, Barrow, and Jackson Counties I worked with a Child Advocate Attorney who is appointed by the court pursuant to statute O.C.G.A. §15-11-6 (b) that requires that all children in Juvenile Court be represented by council and § 15-11-9 (b) that requires a Guardian ad litem to be appointed in order to protect the interest of the children whose interests may be in conflict with their parents' interests. The Judge presiding over the Piedmont Judicial Circuit has enacted a standing order that requires a staff attorney who is assigned to the court's Child Advocate Division to serve as an attorney- Guardian ad litem in all deprivation actions of the Juvenile Courts of Banks, Barrow, and Jackson Counties. At the start of the internship I identified the main goals of the Child Advocate Attorney. First, we investigate the child's or sibling group's situation. Next, we advocate in court hearings for what we have found to be in the best interest of the child. Finally, we monitor the child's ongoing best interest for as long as they remain in care or as long as they are in a placement that must be reviewed by the court periodically.
Generally, in our office the child advocate attorneys follows the Best Interest model. This means that it is our strategic goal to always secure outcomes that are in the child's best interest. During my internship, I only experienced one instance of conflicting roles. A teenager's desires were in conflict with the Child Advocate Attorney's best interest recommendation. Because of this conflict another attorney was appointed to follow the client-directed model of representation and represent the child's wishes. I learned that this happens rarely and that this situation was unique because of the child's age and competence.
Early into the summer I learned the models of representation to achieve the goals of the child advocate. However, there were many practical aspects of the task of child representation that could only be gained from work in the field. Efficiency, camaraderie among professionals in the Juvenile Court, and lawyering skill and savvy to work with an ever-changing group of babies, toddlers, pre-teens, and teenagers are the essential practical components of child advocacy.
The Juvenile Court's efficiency is a top priority in the Piedmont Judicial Circuit. One method the judge uses to ensure efficiency is the Pre-Trial Conference. This is a time for all parties to come together to decide on the particulars of an Adjudicatory hearing. Another effort to maintain court efficiency is timely appointment of council. Parents who are a part of deprivation actions have the legal right to an attorney. If they are without the state requisite income to hire an attorney, the Public Defender's office will have one appointed for them. In the Piedmont Judicial Circuit, parents often decide that they can use an attorney's services only after the original shelter care proceeding. Unbeknownst to a pro se parent, the shelter care hearing allows hearsay and can be damaging because the judge hears this information when he is first introduced to the case. I have learned that skilled parent attorneys, when appointed before the shelter care hearing, often consent to waive the shelter care hearing- stipulating deprivation- and make plans to advocate for their client in the Adjudicatory hearing that is governed by the rules of evidence. Often after experiencing the damaging effects of a shelter care without legal representation, parents opt to have council in subsequent proceedings. This creates backlog and the judge will have to continue any case scheduled prior to appointment of council. In this circuit, the judge never neglects to tell the parents of their right to an attorney early, at the start of a shelter care hearing. Unfortunately, despite his good effort, their change of heart is often unavoidable.
Surprisingly, there is high level of camaraderie among the attorneys, service providers, DFCS, DJJ, and placement representatives in our deprivation proceedings. The child advocates are frequently in friendly negotiations with parent's attorneys and the SAAG to achieve the best interest outcome. Although all attorneys involved have a distinct agenda, there is no embittered power struggle among them. Perhaps it is simply professional courtesy. Whatever the cause, I believe it is their relationships and discussion that clarify the issues of a case and each party's desired outcome. I think this is the best environment for a child client who is often present in the courtroom during proceedings that directly effect his or her welfare. This camaraderie may not exist in a metropolitan environment. I have heard that there is more hostility between parties. I believe this may be do to the greater number of players involved. In this circuit, we deal with the same parent's attorneys, private attorneys, SAAGs, and Child Advocates. There are not any surprises. We know who and what to expect and they are all familiar with the culture of the court. This probably differs from more populated counties.
Finally, a high level of technique and savvy is required to deal with child clients. Getting documented information from agencies, placements, schools, and doctors is relatively easy since we are equipped with a court order that requires that all reasonable requests be granted. Any requests found to be unreasonable must be challenged in writing before the court. What seems to be more difficult is getting information from a child. Child advocates interview children frequently. As an intern testing my interview skills I found myself often quite uncomfortable. I would often stutter and choose my words all too carefully. This only confused the child and discredited me as a professional. Children seemed to respond best when the interviewer is comfortable. So as the summer progressed I felt more at ease talking to kids about their home situations and desires and made more progress in that manner. When I watch my supervisor interview children it is as if she is working from a checklist of the perfect questions to ask. She does this all while playing with the child or casually speaking to a teenager, never note taking. Her casual nature seems to help the interviewee put their guard down just long enough for her to uncover the information that she needs. My supervisor assures me that interviewing skills are developed with time and practice.
I have notably learned this summer that the Attorney Child Advocates are expected to be much more than attorneys. They are social workers, counselors, therapists, pharmacology students, and friends to their clients. They perform each of these roles as they advocate for their clients best interest. Throughout the internship we'd visit clients' homes, schools, relatives, and service providers and conduct social worker-like investigations. Child Advocates often act as a check on DFCS personnel. I appreciate the work of the Child Advocate for this reason. The leg work and time put into investigation are our own "reasonable efforts" to ensure the child's best interest are being met. If you are advocating for a child to go live in their grandmother's home and you have never met grandmother, visited her home, or spoken with her to learn of her consent to this plan, then you are advocating blindly.
Child advocates often are skilled in identifying a need for counseling or specialized treatment. They see problems and often know when a child is at their breaking point needing someone to talk to or therapy to keep them from harming themselves or others. As lay pharmacology students, child advocates often know just what a child's diagnoses are just by viewing their list of prescribed medications. I have also learned that if parents are on certain mood regulating drugs, then children are potentially suffering from the same mental health issues. In what might be considered their most important role, child advocates are the familiar friendly face that a child can see consistently in and out of court. In our court, children sit by their attorney when present. Unless it is a shelter care hearing, they have already talked to their attorney and had an opportunity to develop a relationship with someone not involved with DFCS who represents them. Unfortunately, a child's tears dampen many court proceedings. The child's attorney, not only represents them, but also helps them through this period of fear or frustration. Because this attorney wears so many hats the job is a little overwhelming. However, looking forward to the end result makes the multi-tasking worthwhile.
Because of the court's expectation that every child be effectively served and the heavy case loads that come along with that expectation there is a need to check that everyone's job is being completed adequately. There are means to review cases periodically, outside the setting of a hearing to ensure that kids are having all of their needs met. The Citizens Panel Reviews provide a way to review cases that hadn't been to court for a while. It makes the child advocate review the file and have a chance to meet with and discuss issues with other agencies. The community gets to participate to observe their tax dollars at work or to identify when some child is getting short changed.
http://childwelfare.net/activities/interns/2008summer/Washington_Final_Summary.html
Intern: Natalece Washington
Assignment: Jackson County Juvenile Court Attorney GAL Division
School: University of Georgia School of Law
As an intern in the Juvenile Court of Banks, Barrow, and Jackson Counties I worked with a Child Advocate Attorney who is appointed by the court pursuant to statute O.C.G.A. §15-11-6 (b) that requires that all children in Juvenile Court be represented by council and § 15-11-9 (b) that requires a Guardian ad litem to be appointed in order to protect the interest of the children whose interests may be in conflict with their parents' interests. The Judge presiding over the Piedmont Judicial Circuit has enacted a standing order that requires a staff attorney who is assigned to the court's Child Advocate Division to serve as an attorney- Guardian ad litem in all deprivation actions of the Juvenile Courts of Banks, Barrow, and Jackson Counties. At the start of the internship I identified the main goals of the Child Advocate Attorney. First, we investigate the child's or sibling group's situation. Next, we advocate in court hearings for what we have found to be in the best interest of the child. Finally, we monitor the child's ongoing best interest for as long as they remain in care or as long as they are in a placement that must be reviewed by the court periodically.
Generally, in our office the child advocate attorneys follows the Best Interest model. This means that it is our strategic goal to always secure outcomes that are in the child's best interest. During my internship, I only experienced one instance of conflicting roles. A teenager's desires were in conflict with the Child Advocate Attorney's best interest recommendation. Because of this conflict another attorney was appointed to follow the client-directed model of representation and represent the child's wishes. I learned that this happens rarely and that this situation was unique because of the child's age and competence.
Early into the summer I learned the models of representation to achieve the goals of the child advocate. However, there were many practical aspects of the task of child representation that could only be gained from work in the field. Efficiency, camaraderie among professionals in the Juvenile Court, and lawyering skill and savvy to work with an ever-changing group of babies, toddlers, pre-teens, and teenagers are the essential practical components of child advocacy.
The Juvenile Court's efficiency is a top priority in the Piedmont Judicial Circuit. One method the judge uses to ensure efficiency is the Pre-Trial Conference. This is a time for all parties to come together to decide on the particulars of an Adjudicatory hearing. Another effort to maintain court efficiency is timely appointment of council. Parents who are a part of deprivation actions have the legal right to an attorney. If they are without the state requisite income to hire an attorney, the Public Defender's office will have one appointed for them. In the Piedmont Judicial Circuit, parents often decide that they can use an attorney's services only after the original shelter care proceeding. Unbeknownst to a pro se parent, the shelter care hearing allows hearsay and can be damaging because the judge hears this information when he is first introduced to the case. I have learned that skilled parent attorneys, when appointed before the shelter care hearing, often consent to waive the shelter care hearing- stipulating deprivation- and make plans to advocate for their client in the Adjudicatory hearing that is governed by the rules of evidence. Often after experiencing the damaging effects of a shelter care without legal representation, parents opt to have council in subsequent proceedings. This creates backlog and the judge will have to continue any case scheduled prior to appointment of council. In this circuit, the judge never neglects to tell the parents of their right to an attorney early, at the start of a shelter care hearing. Unfortunately, despite his good effort, their change of heart is often unavoidable.
Surprisingly, there is high level of camaraderie among the attorneys, service providers, DFCS, DJJ, and placement representatives in our deprivation proceedings. The child advocates are frequently in friendly negotiations with parent's attorneys and the SAAG to achieve the best interest outcome. Although all attorneys involved have a distinct agenda, there is no embittered power struggle among them. Perhaps it is simply professional courtesy. Whatever the cause, I believe it is their relationships and discussion that clarify the issues of a case and each party's desired outcome. I think this is the best environment for a child client who is often present in the courtroom during proceedings that directly effect his or her welfare. This camaraderie may not exist in a metropolitan environment. I have heard that there is more hostility between parties. I believe this may be do to the greater number of players involved. In this circuit, we deal with the same parent's attorneys, private attorneys, SAAGs, and Child Advocates. There are not any surprises. We know who and what to expect and they are all familiar with the culture of the court. This probably differs from more populated counties.
Finally, a high level of technique and savvy is required to deal with child clients. Getting documented information from agencies, placements, schools, and doctors is relatively easy since we are equipped with a court order that requires that all reasonable requests be granted. Any requests found to be unreasonable must be challenged in writing before the court. What seems to be more difficult is getting information from a child. Child advocates interview children frequently. As an intern testing my interview skills I found myself often quite uncomfortable. I would often stutter and choose my words all too carefully. This only confused the child and discredited me as a professional. Children seemed to respond best when the interviewer is comfortable. So as the summer progressed I felt more at ease talking to kids about their home situations and desires and made more progress in that manner. When I watch my supervisor interview children it is as if she is working from a checklist of the perfect questions to ask. She does this all while playing with the child or casually speaking to a teenager, never note taking. Her casual nature seems to help the interviewee put their guard down just long enough for her to uncover the information that she needs. My supervisor assures me that interviewing skills are developed with time and practice.
I have notably learned this summer that the Attorney Child Advocates are expected to be much more than attorneys. They are social workers, counselors, therapists, pharmacology students, and friends to their clients. They perform each of these roles as they advocate for their clients best interest. Throughout the internship we'd visit clients' homes, schools, relatives, and service providers and conduct social worker-like investigations. Child Advocates often act as a check on DFCS personnel. I appreciate the work of the Child Advocate for this reason. The leg work and time put into investigation are our own "reasonable efforts" to ensure the child's best interest are being met. If you are advocating for a child to go live in their grandmother's home and you have never met grandmother, visited her home, or spoken with her to learn of her consent to this plan, then you are advocating blindly.
Child advocates often are skilled in identifying a need for counseling or specialized treatment. They see problems and often know when a child is at their breaking point needing someone to talk to or therapy to keep them from harming themselves or others. As lay pharmacology students, child advocates often know just what a child's diagnoses are just by viewing their list of prescribed medications. I have also learned that if parents are on certain mood regulating drugs, then children are potentially suffering from the same mental health issues. In what might be considered their most important role, child advocates are the familiar friendly face that a child can see consistently in and out of court. In our court, children sit by their attorney when present. Unless it is a shelter care hearing, they have already talked to their attorney and had an opportunity to develop a relationship with someone not involved with DFCS who represents them. Unfortunately, a child's tears dampen many court proceedings. The child's attorney, not only represents them, but also helps them through this period of fear or frustration. Because this attorney wears so many hats the job is a little overwhelming. However, looking forward to the end result makes the multi-tasking worthwhile.
Because of the court's expectation that every child be effectively served and the heavy case loads that come along with that expectation there is a need to check that everyone's job is being completed adequately. There are means to review cases periodically, outside the setting of a hearing to ensure that kids are having all of their needs met. The Citizens Panel Reviews provide a way to review cases that hadn't been to court for a while. It makes the child advocate review the file and have a chance to meet with and discuss issues with other agencies. The community gets to participate to observe their tax dollars at work or to identify when some child is getting short changed.
http://childwelfare.net/activities/interns/2008summer/Washington_Final_Summary.html
Mother Sues DHS for Taking Her Child Under False Allegations
Mother Sues DHS for Taking Her Child Under False Allegations
By Trish Mehaffey, Reporter
By Aaron Hepker
Story Created: Jan 5, 2010 at 8:33 PM CST
(Story Updated: Jan 5, 2010 at 8:33 PM CST )
IOWA CITY — A Guernsey mother filed a lawsuit Tuesday against the Iowa Department of Human Services for placing her 5-year-old daughter in foster care based on a false allegation and asks the court to prevent this from happening again.
Jessica Wilbur, 20, filed the civil lawsuit in Johnson County District Court, claiming Paul Lafauce, a DHS abuse investigator, and DHS Director Charles Krogmeier violated her constitutional rights by placing her child in foster care based on document signed by the child’s non-custodial father Robert Nino of Marshalltown, a convicted sex offender.
Nino took the 5-year-old girl for a weekend visit in November and instead of returning her to Wilbur, he kept her and filed a false sexual abuse complaint against Wilbur with the department, according to petition filed Nov. 13. Nino then signed a voluntary foster care placement agreement with DHS and the child entered foster care for two weeks.
The sexual abuse allegation was false and no child abuse investigation was filed by DHS, but the department refused to return the child until after the article about the case ran in The Gazette, Natalie Cronk, Wilbur’s attorney, said.
Cronk said DHS contacted Wilbur at that point and said her child would be returned if she signed a plan to assure the child’s safety. The plan had nothing to do with the initial allegations.
Cronk then went with Wilbur to the foster care home of Nino’s sister, who wasn’t a qualified foster parent, to take the child home after DHS couldn’t produce an order granting authority to restrain or withhold the child from her mother.
The Johnson County DHS office has retaliated against Wilbur after she took her daughter home by proceeding with a baseless investigation and has threatened additional action, the lawsuit contends.
Roger Munns, DHS spokesman, said Tuesday after reading the lawsuit that he had to consult with department officials and didn’t think he could comment.
The suit asks the court to declare the DHS policy of taking children away from their parents by obtaining signatures on voluntary foster care placement from parents with no custodial rights as a violation of Iowa law and constitutional principles.
It also asks for punitive damages against LaFauce.
--------------------------------------------------------------------------------
http://www.kcrg.com/news/local/80757467.html
By Trish Mehaffey, Reporter
By Aaron Hepker
Story Created: Jan 5, 2010 at 8:33 PM CST
(Story Updated: Jan 5, 2010 at 8:33 PM CST )
IOWA CITY — A Guernsey mother filed a lawsuit Tuesday against the Iowa Department of Human Services for placing her 5-year-old daughter in foster care based on a false allegation and asks the court to prevent this from happening again.
Jessica Wilbur, 20, filed the civil lawsuit in Johnson County District Court, claiming Paul Lafauce, a DHS abuse investigator, and DHS Director Charles Krogmeier violated her constitutional rights by placing her child in foster care based on document signed by the child’s non-custodial father Robert Nino of Marshalltown, a convicted sex offender.
Nino took the 5-year-old girl for a weekend visit in November and instead of returning her to Wilbur, he kept her and filed a false sexual abuse complaint against Wilbur with the department, according to petition filed Nov. 13. Nino then signed a voluntary foster care placement agreement with DHS and the child entered foster care for two weeks.
The sexual abuse allegation was false and no child abuse investigation was filed by DHS, but the department refused to return the child until after the article about the case ran in The Gazette, Natalie Cronk, Wilbur’s attorney, said.
Cronk said DHS contacted Wilbur at that point and said her child would be returned if she signed a plan to assure the child’s safety. The plan had nothing to do with the initial allegations.
Cronk then went with Wilbur to the foster care home of Nino’s sister, who wasn’t a qualified foster parent, to take the child home after DHS couldn’t produce an order granting authority to restrain or withhold the child from her mother.
The Johnson County DHS office has retaliated against Wilbur after she took her daughter home by proceeding with a baseless investigation and has threatened additional action, the lawsuit contends.
Roger Munns, DHS spokesman, said Tuesday after reading the lawsuit that he had to consult with department officials and didn’t think he could comment.
The suit asks the court to declare the DHS policy of taking children away from their parents by obtaining signatures on voluntary foster care placement from parents with no custodial rights as a violation of Iowa law and constitutional principles.
It also asks for punitive damages against LaFauce.
--------------------------------------------------------------------------------
http://www.kcrg.com/news/local/80757467.html
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