Sunday, January 31, 2010
Ind. Law - More on "Grandparents testify in Indy to establish visitation rights"
Updating this ILB entry from Jan. 19, 2010, about SB 59 (which passed third reading in the Senate Jan. 25th with a vote of Yeas 44 and Nays 6), here is a letter published in the Jan. 30th Terre Haute Trib-Star, headlined "Intrusive expansion of visitation litigation", written by Karen A. Wyle, a Bloomington attorney:
Most Hoosiers have no idea that in Indiana, widowed, divorced and single parents can be sued for grandparent visitation. If such parents make the difficult decision that contact with a grandparent is bad for their child or even dangerous, a trial judge can overrule this decision. Now, bills are racing through the Indiana House and Senate that would undermine the parental authority of parents in intact families and subject them to the same litigation.
Grandparent visitation litigation is almost always a tragic and counterproductive mistake, with the child the principal victim. Litigation generally puts an end to any possibility of future improvement in relations between parent and grandparent. By so doing, it further reduces the chances of a healthy and beneficial relationship between grandparent and grandchild. If the grandparent wins visitation, the child will be in an ongoing emotional crossfire. The litigation itself places enormous emotional stress on the custodial family, and consumes financial resources that would otherwise have benefitted, even fed and clothed, the child at its center.
The proponents of these bills, HB 1055 and SB 59, express concern about grandparents and great-grandparents who step in to care for their grandchildren when the parents are unable to do so, only to be kept away from the children when the parents take up their role again. These concerns can be addressed through guardianship proceedings or statutes concerning de facto parenthood, or, where the parents are arguably unfit, via Child Protective Services. These bills reach far further.
The U.S. Supreme Court case of Troxel v. Granville, repeatedly recognized by the Indiana Court of Appeals, held that a parent’s fundamental constitutional right to raise his or her child includes the right to make decisions about contact between children and their grandparents (or other nonparents). Courts must, in any grandparent visitation dispute, start out by presuming that the parent’s decision to deny grandparent visitation was in the child’s best interests. Only if that presumption is decisively rebutted, by specific facts rather than generalizations about grandparental affection, may the court override the parent’s decision.
Our current grandparent visitation statute, I.C. 31-17-5, unfortunately makes no mention of these binding constitutional principles. The proposed bills not only would not correct this situation, but would greatly expand the scope of nonparent visitation litigation. Intact families who have not in any way involved the judicial system in their family lives could be thrust into the purgatory of visitation litigation.
The situations most often thought to require such intervention — where a single, divorced or widowed parent is unwilling to let the child continue a relationship with the parents of the noncustodial parent — would no longer be a prerequisite for a family’s being dragged into court.
Please — call or e-mail your state representative and senator immediately and tell them to oppose these bills. Contact Gov. Daniels and urge him to veto the bills if he receives them. Please do what you can to stop this well-intentioned, but harmful and intrusive expansion of nonparent visitation litigation.
Note that HB 1055 paased the House on Jan. 28, with a vote of 63-33.
Here are a number of other ILB entries mentioning grandparents visitation.
Posted by Marcia Oddi on January 31, 2010 08:17 AM
Posted to Indiana Law
http://indianalawblog.com/archives/2010/01/ind_law_more_on_233.html
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
Sunday, January 31, 2010
United States Supreme Court Parental Rights CaseLaw
United States Supreme Court Parental Rights CaseLaw
Author Yvonne Mason
In the early 1920s, the United States Supreme Court first reviewed the rights, liberties and obligations of parents to direct the upbringing of their children. Two important decisions, Meyer v. Nebraska and Pierce v. Society of Sisters, established a legacy which was followed by a series of decisions holding that parenting is a fundamental constitutional right, and among “the basic civil rights of man.”Choices about marriage, family life, and the upbringing of children are among those rights the Court has ranked as “of basic importance in our society,” and as sheltered by the 14th Amendment against the State’s unwarranted usurpation, disregard, or disrespect.
Assembled here are a majority of those cases defining or reaffirming these fundamental rights. Links are provided to each case on the FindLaw Internet Legal Resources service. Each is in hypertext format, with links to related opinions of the court contained in the ruling.
--------------------------------------------------------------------------------
M. L. B. v. S. L. J.
___ US ___, 117 S. Ct. 555 (1996)
Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as “of basic importance in our society,” rights sheltered by the 14th Amendment against the State’s unwarranted usurpation, disregard, or disrespect. This case, involving the State’s authority to sever permanently a parent-child bond, demanded the close consideration the Court has long required when a family association so undeniably important was at stake.
Santosky v Kramer
455 US 745 (1982)
The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the 14th Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. A parental rights termination proceeding interferes with that fundamental liberty interest. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.
Lassiter v Department of Social Services
452 US 18 (1981)
The Court’s decisions have by now made plain that a parent’s desire for and right to “the companionship, care, custody, and management of his or her children” is an important interest that “undeniably warrants deference and, absent a powerful countervailing interest, protection.” A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.
Quilloin v Walcott
434 US 246 (1978)
We have little doubt that the Due Process Clause would be offended “if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” Whatever might be required in other situations, we cannot say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the “best interests of the child.”
Smith v Organization of Foster Care Families
431 US 816 (1977)
In this action, individual foster parents and a foster parents organization, sought declaratory and injunctive relief against New York State and New York City officials, alleging that the statutory and regulatory procedures for removal of foster children from foster homes violated the Due Process and Equal Protection Clauses of the 14th Amendment. The ruling contains an analysis of the rights of natural parents as balanced against the rights of foster parents, as well as a comprehensive discussion of foster care conditions.
Moore v East Cleveland
431 US 494 (1977)
The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. A host of cases, tracing their lineage to Meyer v. Nebraska and Pierce v. Society of Sisters have consistently acknowledged a “private realm of family life which the state cannot enter.” When the government intrudes on choices concerning family living arrangements, the Court must examine carefully the importance of the governmental interests advanced.
Cleveland Board of Education v La Fleur
414 US 632 (1974)
The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. There is a right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Stanley v Illinois
405 US 645 (1972)
The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and protection. The integrity of the family unit has found protection in the Due Process Clause of the 14th Amendment, the Equal Protection Clause of the 14th Amendment, and the 9th Amendment.
Wisconsin v Yoder
406 US 205 (1972)
In this case involving the rights of Amish parents to provide for private schooling of their children, the Court held: “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”
Loving v Virginia
388 US 1 (1967)
In this case involving interracial marriage, the Court reaffirmed the principles set forth in Pierce and Meyers, finding that marriage is one of the basic civil rights of man, fundamental to our very existence and survival. “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
Griswold v Connecticut
381 US 479 (1965)
The 4th and 5th Amendments were described as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” The Court referred to the 4th Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.” Reaffirming the principles set forth in Pierce v. Society of Sisters and Meyers v Nebraska.
Prince v Massachusetts
321 US 158 (1944)
It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.
Skinner v Oklahoma
316 US 535 (1942)
“We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.”
Pierce v Society of Sisters
268 US 510 (1925)
The liberty of parents and guardians to direct the upbringing and education of children was abridged by a proposed statute to compell public education. “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
Meyer v Nebraska
262 US 390 (1923)
“No state … shall deprive any person of life, liberty or property without due process of law.”"While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
http://protectingourchildrenfrombeingsold.wordpress.com/about/united-states-supreme-court-parental-rights-caselaw/
Author Yvonne Mason
In the early 1920s, the United States Supreme Court first reviewed the rights, liberties and obligations of parents to direct the upbringing of their children. Two important decisions, Meyer v. Nebraska and Pierce v. Society of Sisters, established a legacy which was followed by a series of decisions holding that parenting is a fundamental constitutional right, and among “the basic civil rights of man.”Choices about marriage, family life, and the upbringing of children are among those rights the Court has ranked as “of basic importance in our society,” and as sheltered by the 14th Amendment against the State’s unwarranted usurpation, disregard, or disrespect.
Assembled here are a majority of those cases defining or reaffirming these fundamental rights. Links are provided to each case on the FindLaw Internet Legal Resources service. Each is in hypertext format, with links to related opinions of the court contained in the ruling.
--------------------------------------------------------------------------------
M. L. B. v. S. L. J.
___ US ___, 117 S. Ct. 555 (1996)
Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as “of basic importance in our society,” rights sheltered by the 14th Amendment against the State’s unwarranted usurpation, disregard, or disrespect. This case, involving the State’s authority to sever permanently a parent-child bond, demanded the close consideration the Court has long required when a family association so undeniably important was at stake.
Santosky v Kramer
455 US 745 (1982)
The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the 14th Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. A parental rights termination proceeding interferes with that fundamental liberty interest. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.
Lassiter v Department of Social Services
452 US 18 (1981)
The Court’s decisions have by now made plain that a parent’s desire for and right to “the companionship, care, custody, and management of his or her children” is an important interest that “undeniably warrants deference and, absent a powerful countervailing interest, protection.” A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.
Quilloin v Walcott
434 US 246 (1978)
We have little doubt that the Due Process Clause would be offended “if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” Whatever might be required in other situations, we cannot say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the “best interests of the child.”
Smith v Organization of Foster Care Families
431 US 816 (1977)
In this action, individual foster parents and a foster parents organization, sought declaratory and injunctive relief against New York State and New York City officials, alleging that the statutory and regulatory procedures for removal of foster children from foster homes violated the Due Process and Equal Protection Clauses of the 14th Amendment. The ruling contains an analysis of the rights of natural parents as balanced against the rights of foster parents, as well as a comprehensive discussion of foster care conditions.
Moore v East Cleveland
431 US 494 (1977)
The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. A host of cases, tracing their lineage to Meyer v. Nebraska and Pierce v. Society of Sisters have consistently acknowledged a “private realm of family life which the state cannot enter.” When the government intrudes on choices concerning family living arrangements, the Court must examine carefully the importance of the governmental interests advanced.
Cleveland Board of Education v La Fleur
414 US 632 (1974)
The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. There is a right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Stanley v Illinois
405 US 645 (1972)
The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and protection. The integrity of the family unit has found protection in the Due Process Clause of the 14th Amendment, the Equal Protection Clause of the 14th Amendment, and the 9th Amendment.
Wisconsin v Yoder
406 US 205 (1972)
In this case involving the rights of Amish parents to provide for private schooling of their children, the Court held: “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”
Loving v Virginia
388 US 1 (1967)
In this case involving interracial marriage, the Court reaffirmed the principles set forth in Pierce and Meyers, finding that marriage is one of the basic civil rights of man, fundamental to our very existence and survival. “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
Griswold v Connecticut
381 US 479 (1965)
The 4th and 5th Amendments were described as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” The Court referred to the 4th Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.” Reaffirming the principles set forth in Pierce v. Society of Sisters and Meyers v Nebraska.
Prince v Massachusetts
321 US 158 (1944)
It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.
Skinner v Oklahoma
316 US 535 (1942)
“We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.”
Pierce v Society of Sisters
268 US 510 (1925)
The liberty of parents and guardians to direct the upbringing and education of children was abridged by a proposed statute to compell public education. “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
Meyer v Nebraska
262 US 390 (1923)
“No state … shall deprive any person of life, liberty or property without due process of law.”"While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
http://protectingourchildrenfrombeingsold.wordpress.com/about/united-states-supreme-court-parental-rights-caselaw/
The New World Order Wants Your Children
January 31, 2010 yvonnemason
The New World Order Wants Your Children
Posted by innerpeace5 on Saturday, January 30, 2010 5:58:26 PM
The Children’s Defense Fund (CDF), the chief vehicle for those who want government to take over the raising of children, has a new goal under the Clinton Administration. Having failed to get Congress to pass the costly ABC Child Care bill, the CDF is now pushing to get a United Nations treaty on children signed and adopted so that child-advocacy lawyers can assert “children’s rights” against their parents. Since Hillary Clinton was chair of CDF’s board of directors from 1986 to 1991, and since she was succeeded as CDF chair in 1991 by Donna Shalala (now Secretary of HHS), and since CDF’s CEO, Marian Wright Edelman, is Hillary’s close friend, we can anticipate an aggressive effort by the Clinton Administration on behalf of this treaty.
The treaty is called the United Nations Convention on the Rights of the Child. It was unanimously adopted by the U.N. General Assembly on November 20, 1989 and signed by more than 100 foreign governments. President George Bush did not sign the Treaty or send it to the Senate for ratification. There are dozens of excellent reasons to reject it.
If the text of the U.N. Treaty were proposed as new federal legislation, the bill would never pass. It would be unacceptable to the American people because it would give the Federal Government too broad a grant of power over our children, families and schools, and it would be unconstitutional because of both vagueness and federal interference with states’ rights.
But the treaty has been blessed by the United Nations and layered with lofty goals and high-sounding words. Its salesmen are peddling it with pathetic stories of the mistreatment of children, such as outrageous murders in Bolivia. CDF and 150 liberal advocacy groups in the United States have made it a “cause” and are even using it as a litmus test to try to label Congressmen as “pro-children” or “anti-children.”
It is always important to scrutinize proposed treaties even more carefully than ordinary legislation, first, because treaties can be ratified at any time by two-thirds of U.S. Senators present and voting (e.g., with two Senators voting aye and one Senator voting no), and second, because of the preferential status which treaties enjoy in the American system of government. Once ratified, they become part of the “supreme law of the land,” along with the U.S. Constitution and federal laws.
Any time a treaty is proposed, we should study the language, as well as the intent, and consider a worst case scenario of how the treaty’s provisions – in the hands of international bodies (over which we have no control) – could imperil American sovereignty and the rights of American citizens.
The American philosophy of government, as spelled out in the Declaration of Independence and the United States Constitution, is that the individual’s inalienable rights to life, liberty and property come to each of us from our Creator and may not be impaired without due process of law, and that the prime purpose of government is to guarantee those rights. Americans do not believe that individual rights originate with the government, the United Nations, kings, rulers, or even society.
The United States Constitution lists several rights that Americans can assert against our government; then the Ninth Amendment adds, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The U.N. Convention on the Rights of the Child, on the other hand, purports to be a comprehensive listing of all rights of the child, and is based on the concept that a child’s rights originate with the U.N. Treaty itself or with the government. The logical conclusion is that a child would have no rights except those in the Treaty, and what government gives, government also can take away.
If this U.N. Treaty is ever written into American law – a treaty which assumes that government is the source of the listed “rights” – this can only diminish the status of existing American rights. Since U.N. treaties, courts, and bureaucracies do not respect our American philosophy of individual rights, it would badly curtail our liberty to submit ourselves to a U.N. document interpreted by foreign lawyers.
Who Will Enforce the Rights?
The next problem with the U.N. Convention on the Rights of the Child is, who is to be the enforcer of the Treaty’s rights – and against whom are they to be enforced? In American constitutional law, the right of free speech, for example, is a right which the individual can assert against government encroachment. This U.N. Treaty doesn’t say who is to enforce the child’s rights against whom, but it is reasonable to infer that many of these rights are to be enforced against the parents, probably with the help of government.
The Treaty purports to give the child the right to express his own views freely in all matters (Article 12), to receive information of all kinds through “media of the child’s choice” (Article 13), to freedom of religion (Article 14), to be protected from interference with his correspondence (Article 16), to have access to information from national and international sources in the media (Article 17), to use his “own language” (Article 30), and to have the right to “rest and leisure” (Article 31).
What do all these rights mean, how will they be enforced, and against whom? Does this mean that the child can refuse to do his homework and household chores because they interfere with his “right” to rest and leisure? And can he demand a government-paid lawyer to file a lawsuit against his parents?
Does this mean that a child has the right to use his native language in school and cannot be required to speak English? Does it mean that a child can demand the right to watch television in order to receive media reports from national and international sources?
Does this mean that a child can assert his right to say anything he wants to his parents at the dinner table? Does this mean that the government will assist the child to join a cult or select a different church from the one his parents attend? The U.N. Treaty does not provide answers to these questions.
These are just a few of the literally dozens of brand new “rights of the child” scattered throughout the 54 Articles of the U.N. Treaty, which is longer than the entire U.S. Constitution. Despite a vague reference to undefined “rights and duties of parents,” the Treaty does not recognize any specific parental right to make decisions for their minor children.
The Grab for Power Over Education
Suppose Congress were to consider legislation to set up a procedure for the Federal Government (or the U.S. Department of Education) to define the content of the education of every child. Imagine the howls that would go up as parents and concerned citizens protest that Congress has no business prescribing school curriculum. From all sides, we would hear citizens reassert their dedication to local control of education. Private schools would express fear that they would become an endangered species.
The U.N. Convention on the Rights of the Child prescribes the content of what must be taught to all children in several sensitive areas. Article 28 prescribes that “the education of the child shall be directed to” such things as “the principles enshrined in the Charter of the United Nations”; respect for “the national values of the country … from which he or she may originate, and for civilizations different from his or her own” (that means adopting the controversial curricular approach known as “global education” or “multiculturalism”); “equality of sexes” (that means promoting the Equal Rights Amendment which was rejected by the American people in 1982); and “the development of respect for the natural environment” (certainly one of the most politically-charged issues in the United States).
The U.N. Treaty recognizes that private schools may exist, but only so long as they teach the above subjects and otherwise conform to government standards.
The American people would not permit Congress to prescribe what all our children must learn on these sensitive issues, so we certainly don’t want the United Nations to lay down the law. But, if this U.N. Treaty is ratified, dictatorial control over all school curriculum will become part of the supreme law of the land.
The Treaty’s Expensive Obligations
In several sections, the U.N. Treaty imposes on the government the obligation to “strive to ensure,” to “render appropriate assistance,” and to “take all appropriate measures” so that children may enjoy certain economic benefits. Article 4 states that the government “shall undertake all appropriate legislative, administrative, and other measures” to implement “economic, social and cultural rights.” Furthermore, the government “shall undertake such measures to the maximum extent of their available resources.”
These expensive responsibilities include “health care services” (Article 24), social security (Article 26), and an “adequate” standard of living, nutrition, clothing and housing (Article 27).
What does this language really mean? The big-spending liberals will surely argue that the Treaty will require our government to impose new taxes – or go further into debt – to carry out these obligations.
The Treaty’s Daycare Obligations
The U.N. Treaty would probably require us to set up a national system of daycare. Article 18 says that the government “shall ensure the development of institutions, facilities and services for the care of children . . . of working parents.” The Treaty gives the children the right to benefit from these services and facilities.
What does the U.N. Treaty mean when it requires universal legal standards for the care and protection of children against neglect, exploitation, and abuse? Is it “neglect” not to establish government daycare centers? Or is it “neglect” to put children in daycare centers where they are exposed to more illnesses? Shall we leave this up to United Nations judges or “experts” to decide?
The Treaty even obligates the government to ensure “standards” for child care institutions, services and facilities. National daycare standards were part of the ABC Child Care bill and were a major reason why, after lengthy debate, Congress specifically rejected this approach in its 1990 legislation. Are we now to have Congress overridden by a United Nations mandate?
The U.N. Treaty grants the child the right to be protected against neglect or negligent treatment (Article 19). Could homeschoolers be charged with “neglect” for not sending their children to an institutional school? Or for not sending children to school until age seven or eight?
Opening Up New Litigation
Unlike our U.S. Constitution, which only mentions rights that can be enforced against the government, the U.N. Treaty declares “rights of the child” against parents, the family, private institutions, and society as a whole. Since the Treaty is a legal document which, if ratified, would become part of the “supreme law of the land,” we can expect ACLU lawyers to bring a series of test cases to see how far the courts will extend its provisions. The Convention would open up a Pandora’s box of litigation, either in some international court or in U.S. courts, or both. It’s hard to say which venue would be worse.
International courts are frequently biased against Americans. Several years ago when the World Court treated the United States unfairly, the Reagan Administration simply thumbed its nose at the Court. Another administration might have acquiesced in the unfair treatment. Every day, U.S. courts hand down decisions which become law in our country, and it is not in the interests of American citizens to have those decisions grounded in United Nations treaties rather than in U.S. constitutional law.
Americans will be in for a shock if judges around the country start applying this U.N. Treaty as the supreme law of our land. It is full of vague requirements which are susceptible to different and even contradictory interpretations.
For example, Article 24(3) requires the government to “take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.” What kind of standard is that? The practice doesn’t have to be harmful or even negligent, but merely “prejudicial,” and this new “standard” would be defined by unelected judges.
What will it mean to enforce Article 28, which makes “primary education compulsory and available free to all”? Will that make it compulsory to give subsidies to private or religious schools – and if so, will they be required to modify their religious practices? Or, will Article 28 ban private and religious schools altogether? Either outcome would override existing Supreme Court decisions. Do we want United Nations courts to answer these questions?
A New International Bureaucracy
Of course, all these grandiose U.N. Treaty goals would not be complete without the establishment of a new international bureaucracy and mechanism of control. The U.N. Convention on the Rights of the Child would set up a Committee on the Rights of the Child consisting of ten “experts” chosen by secret ballot from a list of nominees submitted by the governments that sign the Treaty. Of course, there is no assurance that any American will be on this committee of experts, not even any assurance that even one “expert” will be friendly to American institutions and traditions. (Articles 43 and 44)
The Secretary-General of the United Nations will provide “the necessary staff and facilities” which will assist the committee of experts in monitoring and reporting on “the degree of fulfillment of the obligations” established under the Treaty. We cannot assume that this would be merely an expensive exercise in international busybodyism, because this is not merely a treaty of generalized hopes; it is full of mandatory words such as “rights” and “obligations.”
Contradictory Abortion Provisions
The U.N. Convention on the Rights of the Child is vague, misleading and contradictory on the fundamental issue of whether or not an unborn child is accorded any rights. Whatever the American people ultimately decide about this issue, the decision-making power should not rest with a United Nations treaty. Some argue that this Treaty probably creates an across- the-board right to abortion that would override U.S. law and Supreme Court decisions. Others argue that the Treaty may give the same rights to the unborn child and to the born child. Five provisions deal with this issue.
Language in the Preamble asserts the child’s right to “appropriate legal protection, before as well as after birth.” However, it can be argued that the Preamble would have no legal effect. The language is so vague that it also could be argued that such rights would inure only if the child were subsequently born alive.
Article 6 states that every child has a “right to life.” However, whenever the “right to life” has been challenged by a “right to privacy,” U.S. courts have come down on the side of abortion rather than respecting the life of the unborn child.
Article 16 purports to establish the child’s right to “privacy.” Under U.S. Supreme Court decisions, “privacy” is the operative word which has created the right to abortion. We can be sure that lawyers will argue that the Treaty creates a federal statutory right to “privacy” which can subsequently be used by the courts to include abortion.
Article 24(f) grants the right to “family planning education and services.” This language is generally used as a legal rationale for abortion services.
Article 2 prohibits discrimination on the basis of sex. Several U.S. courts have held that, where a private or government employer provides health care or insurance coverage for other types of medical services, such language creates a right to paid abortions. The rationale is that, because only women can have abortions, denying funding for abortions discriminates against women on account of their sex.
When the Senate on September 11, 1990 considered passage of a resolution calling on the President to send the Convention on the Rights of the Child to the Senate, Senator Jesse Helms offered an amendment to ensure that the treaty would not interfere with the rights of unborn children. The Helms amendment was defeated, creating the legislative inference that the Senate was not willing to go on record as stating that the Convention would not impact the abortion issue.
A Congressman’s Warning
Congressman Thomas J. Bliley Jr. is one of the few Congressmen who have taken the time to study the U.N. Convention on the Rights of the Child. He has issued a strong warning against its dangers, saying: “Ostensibly, it would create new national and international roles for governments to secure a child’s right to such fundamental necessities as nutrition, health care, housing and education.” But, he points out, laudable as these goals are, the U.N. Treaty creates just as many “confusing expectations.”
For example, he asks, what will it really mean if the United States must comply with Article 28(2), which states that the government “shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with” the Treaty? Are we willing to give an international committee the authority to monitor such a “protection”? Do these “rights” have real meaning, or are they just a “slick public-relations campaign” by those trying to make political capital out of pretending to support children?
Congressman Bliley warns: “The Convention represents a potential threat to our form of government. As written, it places government in a superior position to its citizens by granting these rights to children. What is so bad about that? Such an interpretation is antithetical to our limitations on government. Many of these ‘rights’ are not presently found in our Constitution, but rather, are considered to be among our inalienable rights endowed by our Creator.”
“More practically speaking,” Congressman Bliley continues, “the Ninth and Tenth Amendments to the Constitution, reserving rights to the states and to the people, will simply be swept away in deference to Article VI of the U.S. Constitution which provides that ‘all Treaties made … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. “‘
So, according to Congressman Bliley: “Hundreds of judges will be left to interpret the Convention as they please and will possess all power to supersede state laws” in order to carry out the vague goals of the treaty, such as “appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and … the development of institutions, facilities and services for the care of children.”
Congressman Bliley concludes: “It finally becomes clear: Ratification is not about children; it is about power. … It is a potential threat to some of our most precious freedoms, civil liberties, and our form of government.”
The U.N. Treaty on the Rights of the Child is a bad deal for Americans on every count. It should never be signed by our President or ratified by our Senate.
http://protectingourchildrenfrombeingsold.wordpress.com/2010/01/31/the-new-world-order-wants-your-children/
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The New World Order Wants Your Children
Posted by innerpeace5 on Saturday, January 30, 2010 5:58:26 PM
The Children’s Defense Fund (CDF), the chief vehicle for those who want government to take over the raising of children, has a new goal under the Clinton Administration. Having failed to get Congress to pass the costly ABC Child Care bill, the CDF is now pushing to get a United Nations treaty on children signed and adopted so that child-advocacy lawyers can assert “children’s rights” against their parents. Since Hillary Clinton was chair of CDF’s board of directors from 1986 to 1991, and since she was succeeded as CDF chair in 1991 by Donna Shalala (now Secretary of HHS), and since CDF’s CEO, Marian Wright Edelman, is Hillary’s close friend, we can anticipate an aggressive effort by the Clinton Administration on behalf of this treaty.
The treaty is called the United Nations Convention on the Rights of the Child. It was unanimously adopted by the U.N. General Assembly on November 20, 1989 and signed by more than 100 foreign governments. President George Bush did not sign the Treaty or send it to the Senate for ratification. There are dozens of excellent reasons to reject it.
If the text of the U.N. Treaty were proposed as new federal legislation, the bill would never pass. It would be unacceptable to the American people because it would give the Federal Government too broad a grant of power over our children, families and schools, and it would be unconstitutional because of both vagueness and federal interference with states’ rights.
But the treaty has been blessed by the United Nations and layered with lofty goals and high-sounding words. Its salesmen are peddling it with pathetic stories of the mistreatment of children, such as outrageous murders in Bolivia. CDF and 150 liberal advocacy groups in the United States have made it a “cause” and are even using it as a litmus test to try to label Congressmen as “pro-children” or “anti-children.”
It is always important to scrutinize proposed treaties even more carefully than ordinary legislation, first, because treaties can be ratified at any time by two-thirds of U.S. Senators present and voting (e.g., with two Senators voting aye and one Senator voting no), and second, because of the preferential status which treaties enjoy in the American system of government. Once ratified, they become part of the “supreme law of the land,” along with the U.S. Constitution and federal laws.
Any time a treaty is proposed, we should study the language, as well as the intent, and consider a worst case scenario of how the treaty’s provisions – in the hands of international bodies (over which we have no control) – could imperil American sovereignty and the rights of American citizens.
The American philosophy of government, as spelled out in the Declaration of Independence and the United States Constitution, is that the individual’s inalienable rights to life, liberty and property come to each of us from our Creator and may not be impaired without due process of law, and that the prime purpose of government is to guarantee those rights. Americans do not believe that individual rights originate with the government, the United Nations, kings, rulers, or even society.
The United States Constitution lists several rights that Americans can assert against our government; then the Ninth Amendment adds, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The U.N. Convention on the Rights of the Child, on the other hand, purports to be a comprehensive listing of all rights of the child, and is based on the concept that a child’s rights originate with the U.N. Treaty itself or with the government. The logical conclusion is that a child would have no rights except those in the Treaty, and what government gives, government also can take away.
If this U.N. Treaty is ever written into American law – a treaty which assumes that government is the source of the listed “rights” – this can only diminish the status of existing American rights. Since U.N. treaties, courts, and bureaucracies do not respect our American philosophy of individual rights, it would badly curtail our liberty to submit ourselves to a U.N. document interpreted by foreign lawyers.
Who Will Enforce the Rights?
The next problem with the U.N. Convention on the Rights of the Child is, who is to be the enforcer of the Treaty’s rights – and against whom are they to be enforced? In American constitutional law, the right of free speech, for example, is a right which the individual can assert against government encroachment. This U.N. Treaty doesn’t say who is to enforce the child’s rights against whom, but it is reasonable to infer that many of these rights are to be enforced against the parents, probably with the help of government.
The Treaty purports to give the child the right to express his own views freely in all matters (Article 12), to receive information of all kinds through “media of the child’s choice” (Article 13), to freedom of religion (Article 14), to be protected from interference with his correspondence (Article 16), to have access to information from national and international sources in the media (Article 17), to use his “own language” (Article 30), and to have the right to “rest and leisure” (Article 31).
What do all these rights mean, how will they be enforced, and against whom? Does this mean that the child can refuse to do his homework and household chores because they interfere with his “right” to rest and leisure? And can he demand a government-paid lawyer to file a lawsuit against his parents?
Does this mean that a child has the right to use his native language in school and cannot be required to speak English? Does it mean that a child can demand the right to watch television in order to receive media reports from national and international sources?
Does this mean that a child can assert his right to say anything he wants to his parents at the dinner table? Does this mean that the government will assist the child to join a cult or select a different church from the one his parents attend? The U.N. Treaty does not provide answers to these questions.
These are just a few of the literally dozens of brand new “rights of the child” scattered throughout the 54 Articles of the U.N. Treaty, which is longer than the entire U.S. Constitution. Despite a vague reference to undefined “rights and duties of parents,” the Treaty does not recognize any specific parental right to make decisions for their minor children.
The Grab for Power Over Education
Suppose Congress were to consider legislation to set up a procedure for the Federal Government (or the U.S. Department of Education) to define the content of the education of every child. Imagine the howls that would go up as parents and concerned citizens protest that Congress has no business prescribing school curriculum. From all sides, we would hear citizens reassert their dedication to local control of education. Private schools would express fear that they would become an endangered species.
The U.N. Convention on the Rights of the Child prescribes the content of what must be taught to all children in several sensitive areas. Article 28 prescribes that “the education of the child shall be directed to” such things as “the principles enshrined in the Charter of the United Nations”; respect for “the national values of the country … from which he or she may originate, and for civilizations different from his or her own” (that means adopting the controversial curricular approach known as “global education” or “multiculturalism”); “equality of sexes” (that means promoting the Equal Rights Amendment which was rejected by the American people in 1982); and “the development of respect for the natural environment” (certainly one of the most politically-charged issues in the United States).
The U.N. Treaty recognizes that private schools may exist, but only so long as they teach the above subjects and otherwise conform to government standards.
The American people would not permit Congress to prescribe what all our children must learn on these sensitive issues, so we certainly don’t want the United Nations to lay down the law. But, if this U.N. Treaty is ratified, dictatorial control over all school curriculum will become part of the supreme law of the land.
The Treaty’s Expensive Obligations
In several sections, the U.N. Treaty imposes on the government the obligation to “strive to ensure,” to “render appropriate assistance,” and to “take all appropriate measures” so that children may enjoy certain economic benefits. Article 4 states that the government “shall undertake all appropriate legislative, administrative, and other measures” to implement “economic, social and cultural rights.” Furthermore, the government “shall undertake such measures to the maximum extent of their available resources.”
These expensive responsibilities include “health care services” (Article 24), social security (Article 26), and an “adequate” standard of living, nutrition, clothing and housing (Article 27).
What does this language really mean? The big-spending liberals will surely argue that the Treaty will require our government to impose new taxes – or go further into debt – to carry out these obligations.
The Treaty’s Daycare Obligations
The U.N. Treaty would probably require us to set up a national system of daycare. Article 18 says that the government “shall ensure the development of institutions, facilities and services for the care of children . . . of working parents.” The Treaty gives the children the right to benefit from these services and facilities.
What does the U.N. Treaty mean when it requires universal legal standards for the care and protection of children against neglect, exploitation, and abuse? Is it “neglect” not to establish government daycare centers? Or is it “neglect” to put children in daycare centers where they are exposed to more illnesses? Shall we leave this up to United Nations judges or “experts” to decide?
The Treaty even obligates the government to ensure “standards” for child care institutions, services and facilities. National daycare standards were part of the ABC Child Care bill and were a major reason why, after lengthy debate, Congress specifically rejected this approach in its 1990 legislation. Are we now to have Congress overridden by a United Nations mandate?
The U.N. Treaty grants the child the right to be protected against neglect or negligent treatment (Article 19). Could homeschoolers be charged with “neglect” for not sending their children to an institutional school? Or for not sending children to school until age seven or eight?
Opening Up New Litigation
Unlike our U.S. Constitution, which only mentions rights that can be enforced against the government, the U.N. Treaty declares “rights of the child” against parents, the family, private institutions, and society as a whole. Since the Treaty is a legal document which, if ratified, would become part of the “supreme law of the land,” we can expect ACLU lawyers to bring a series of test cases to see how far the courts will extend its provisions. The Convention would open up a Pandora’s box of litigation, either in some international court or in U.S. courts, or both. It’s hard to say which venue would be worse.
International courts are frequently biased against Americans. Several years ago when the World Court treated the United States unfairly, the Reagan Administration simply thumbed its nose at the Court. Another administration might have acquiesced in the unfair treatment. Every day, U.S. courts hand down decisions which become law in our country, and it is not in the interests of American citizens to have those decisions grounded in United Nations treaties rather than in U.S. constitutional law.
Americans will be in for a shock if judges around the country start applying this U.N. Treaty as the supreme law of our land. It is full of vague requirements which are susceptible to different and even contradictory interpretations.
For example, Article 24(3) requires the government to “take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.” What kind of standard is that? The practice doesn’t have to be harmful or even negligent, but merely “prejudicial,” and this new “standard” would be defined by unelected judges.
What will it mean to enforce Article 28, which makes “primary education compulsory and available free to all”? Will that make it compulsory to give subsidies to private or religious schools – and if so, will they be required to modify their religious practices? Or, will Article 28 ban private and religious schools altogether? Either outcome would override existing Supreme Court decisions. Do we want United Nations courts to answer these questions?
A New International Bureaucracy
Of course, all these grandiose U.N. Treaty goals would not be complete without the establishment of a new international bureaucracy and mechanism of control. The U.N. Convention on the Rights of the Child would set up a Committee on the Rights of the Child consisting of ten “experts” chosen by secret ballot from a list of nominees submitted by the governments that sign the Treaty. Of course, there is no assurance that any American will be on this committee of experts, not even any assurance that even one “expert” will be friendly to American institutions and traditions. (Articles 43 and 44)
The Secretary-General of the United Nations will provide “the necessary staff and facilities” which will assist the committee of experts in monitoring and reporting on “the degree of fulfillment of the obligations” established under the Treaty. We cannot assume that this would be merely an expensive exercise in international busybodyism, because this is not merely a treaty of generalized hopes; it is full of mandatory words such as “rights” and “obligations.”
Contradictory Abortion Provisions
The U.N. Convention on the Rights of the Child is vague, misleading and contradictory on the fundamental issue of whether or not an unborn child is accorded any rights. Whatever the American people ultimately decide about this issue, the decision-making power should not rest with a United Nations treaty. Some argue that this Treaty probably creates an across- the-board right to abortion that would override U.S. law and Supreme Court decisions. Others argue that the Treaty may give the same rights to the unborn child and to the born child. Five provisions deal with this issue.
Language in the Preamble asserts the child’s right to “appropriate legal protection, before as well as after birth.” However, it can be argued that the Preamble would have no legal effect. The language is so vague that it also could be argued that such rights would inure only if the child were subsequently born alive.
Article 6 states that every child has a “right to life.” However, whenever the “right to life” has been challenged by a “right to privacy,” U.S. courts have come down on the side of abortion rather than respecting the life of the unborn child.
Article 16 purports to establish the child’s right to “privacy.” Under U.S. Supreme Court decisions, “privacy” is the operative word which has created the right to abortion. We can be sure that lawyers will argue that the Treaty creates a federal statutory right to “privacy” which can subsequently be used by the courts to include abortion.
Article 24(f) grants the right to “family planning education and services.” This language is generally used as a legal rationale for abortion services.
Article 2 prohibits discrimination on the basis of sex. Several U.S. courts have held that, where a private or government employer provides health care or insurance coverage for other types of medical services, such language creates a right to paid abortions. The rationale is that, because only women can have abortions, denying funding for abortions discriminates against women on account of their sex.
When the Senate on September 11, 1990 considered passage of a resolution calling on the President to send the Convention on the Rights of the Child to the Senate, Senator Jesse Helms offered an amendment to ensure that the treaty would not interfere with the rights of unborn children. The Helms amendment was defeated, creating the legislative inference that the Senate was not willing to go on record as stating that the Convention would not impact the abortion issue.
A Congressman’s Warning
Congressman Thomas J. Bliley Jr. is one of the few Congressmen who have taken the time to study the U.N. Convention on the Rights of the Child. He has issued a strong warning against its dangers, saying: “Ostensibly, it would create new national and international roles for governments to secure a child’s right to such fundamental necessities as nutrition, health care, housing and education.” But, he points out, laudable as these goals are, the U.N. Treaty creates just as many “confusing expectations.”
For example, he asks, what will it really mean if the United States must comply with Article 28(2), which states that the government “shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with” the Treaty? Are we willing to give an international committee the authority to monitor such a “protection”? Do these “rights” have real meaning, or are they just a “slick public-relations campaign” by those trying to make political capital out of pretending to support children?
Congressman Bliley warns: “The Convention represents a potential threat to our form of government. As written, it places government in a superior position to its citizens by granting these rights to children. What is so bad about that? Such an interpretation is antithetical to our limitations on government. Many of these ‘rights’ are not presently found in our Constitution, but rather, are considered to be among our inalienable rights endowed by our Creator.”
“More practically speaking,” Congressman Bliley continues, “the Ninth and Tenth Amendments to the Constitution, reserving rights to the states and to the people, will simply be swept away in deference to Article VI of the U.S. Constitution which provides that ‘all Treaties made … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. “‘
So, according to Congressman Bliley: “Hundreds of judges will be left to interpret the Convention as they please and will possess all power to supersede state laws” in order to carry out the vague goals of the treaty, such as “appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and … the development of institutions, facilities and services for the care of children.”
Congressman Bliley concludes: “It finally becomes clear: Ratification is not about children; it is about power. … It is a potential threat to some of our most precious freedoms, civil liberties, and our form of government.”
The U.N. Treaty on the Rights of the Child is a bad deal for Americans on every count. It should never be signed by our President or ratified by our Senate.
http://protectingourchildrenfrombeingsold.wordpress.com/2010/01/31/the-new-world-order-wants-your-children/
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Alamo parents plan to appeal. Severed rights affect 13 youths.
1/31/10 – ADG: Alamo parents plan to appeal. Severed rights affect 13 youths.
Arkansas Democrat Gazette
January 31, 2010
BY ANDY DAVIS
Alamo parents plan to appeal
Severed rights affect 13 youths
An advocate for members of the Tony Alamo Christian Ministries called a judge’s decision to sever the parental rights of several of those members a “tragedy” and said Saturday that the parents plan to appeal.
“The way to deal with a perpetrator like Tony Alamo is to go after the perpetrator,” said Cheryl Barnes, litigation specialist for the parent advocacy group CPS Watch Legal Team, which assisted the parents with their cases in Miller County Circuit Court. “After that was done, there really wasn’t a need to take all these kids away from their parents.”
Mary Coker, founder of the anti-Alamo group Partnered Against Cult Activity, countered that severing the parents’ rights could give the children a chance at a “normal life.” She noted that authorities have said that even behind bars, Alamo is likely to have influence over the church’s members.
The parents have “shown that they’re going to follow his teachings, and his teachings are what got them into this,” Coker said.
The decision by Miller County Circuit Judge Joe Griffin to sever the parents’ rights came after a three-day hearing at the Juvenile Court Center in Texarkana. Officials with the Arkansas Department of Human Services had recommended that the rights be severed, saying the parents had made no progress in complying with orders that they move off ministry property and find jobs outside the ministry.
The rulings affected 13 children, ages 2-14, from four families. The parents were the first, as a result of an investigation into physical and sexual abuse within the ministry, to lose their legal rights with respect to their children.
Severing the parents’ rights clears the children to be put up for adoption. But Julie Munsell, a spokesman for the Human Services Department, said the department typically wouldn’t make a child available for adoption until any pending appeals are resolved. An exception is when the child is in the care of a relative, who can then choose a “high-risk” adoption, with the understanding that the adoption could be dissolved if the appeal is successful.
Children ages 10 and up must give their consent to be adopted, but a judge can overrule the children’s wishes, Munsell said.
After the hearings in Texarkana ended, shortly after 9 p.m. Friday, the parents hurried away from the court building, declining to comment. One mother, Miriam Krantz, sobbed, clutching her husband’s arm as he led her away.
The proceedings were closed to the public, and Griffin has issued a gag order barring parents, attorneys and others from speaking with reporters about the case.
A sheriff’s deputy said Friday night that Griffin would have no comment on his ruling. A man who answered the door at the ministry complex in Fouke, about 15 miles south of Texarkana, said members of the church also would have no comment.
The children were taken into custody in Fouke and Texarkana in September and November 2008 amid an investigation into allegations of physical and sexual abuse.
Alamo, the ministry’s 75-year-old leader, was sentenced to 175 years in prison in November 2009 after being convicted of taking five underage girls across state lines for sex.
Alamo hasn’t been formally accused of abusing any of the children who are now in foster care, but authorities say some of the girls had been living with him at his house in Fouke along with women Alamo had taken as “wives.”
Authorities also say Alamo ordered some of the children now in foster care to be beaten or put on fasts for violating church rules. Other children were deemed to be at risk because of the ministry’s practices, including allowing girls as young as 12 to marry. Most of the parents weren’t accused of abusing their children but were found to have failed to adequately protect and supervise them.
Judges in Miller County ruled in 2008 and 2009 that the parents could eventually be reunited with their children but only if the parents moved off church property and found jobs outside the ministry.
The parents whose rights were terminated Friday are:
Bert and Miriam Krantz, whose six children range in ages from 2-13.
Greg Seago and Gina Howard. Seago is a ministry member, but Howard left the church in 1999. Griffin terminated the parental rights of Seago and Howard with respect to their two sons, ages 10 and 14. Seago and Howard also have a 15-year-old daughter who was removed from Alamo’s house during the September 2008 raid. The Human Services Department has recommended that she remain in foster care and receive help with her educational expenses and establishing independence.
Alphonso Reid. Griffin terminated Reid’s parental rights with respect to his 11-year old daughter. Reid also has a son, age 17, in foster care, and a daughter who turned 18 last year while in foster care. The children’s mother left the church in 2004. It was unknown whether she attended the hearings or whether her rights were severed.
Carlos and Sophia Parrish, whose four children in foster care range in ages from 2-8. Sophia Parrish gave birth to another child, a boy, last June. Fearing that the Human Services Department would take the baby into foster care, the Parrishes skipped court hearings in October and weren’t in court for their termination of parental rights hearing last week.
In a petition asking Griffin to terminate the Parrishes’ parental rights, the Human Services Department said the Parrishes “apparently abandoned [their children in foster care] in that they have had no contact with them for three months and their whereabouts are currently unknown.”
The children who were the subject of last week’s hearings are among 36 removed from the ministry and placed in foster care.
While some parents have complied with the orders requiring them to establish financial independence with the ministry, others say the orders infringe on their religious freedoms.
In November 2009, the Arkansas Court of Appeals upheld the removal of five of the children, all girls. However, the court did not rule on the parents’ constitutional argument because it said the parents didn’t raise the issue at the trial level.
Several other appeals are pending, and the ministry has challenged the removals in a lawsuit in federal court. The Human Services Department has asked for the lawsuit to be dismissed.
In last week’s hearing, the Human Services Department also asked Griffin to terminate the rights of another couple, Jim and Bethany Myers, but Griffin gave the Myerses additional time to comply with his orders, Barnes said.
The ministry members have been allowed weekly visits with their children in foster care. Once a parent’s rights are terminated, however, the parent does [not] have visitation rights, and the department typically doesn’t recommend that any contact be allowed, Munsell said.
Barnes said the parents were told that if their rights were severed, they would have a final “goodbye visit” with their children and then wouldn’t be allowed any further contact.
Barnes said Griffin could have fashioned a less-severe remedy to protect the children. For instance, she said, he could have assigned guardianship to a relative, an option that would have allowed the parents to visit their children and eventually petition for custody.
If the ministry is truly a cult, Barnes said, “it’s unreasonable to expect the parents to break away from that in 12 months’ time.”
But Munsell said that after a child has been in foster care for more than a year, it’s important to establish a permanent living situation and give the child a new family. Contact with parents who have been abusive or neglectful can often be detrimental, she said.
“You want the child to be able to heal from what’s occurred to them, then move on,” Munsell said.
If a child is adopted by someone outside the family, she said, the biological parent would typically not have any information about the children’s whereabouts. On the other hand, a relative could also petition for custody or to adopt the child. In that case, it would be up to the relative whether to allow contact with the biological parent, Munsell said.
“Some kids always want to return home, even if they were being abused and neglected,” Munsell said. Others, she said, want “a fresh start, because there’s been so much trauma in the past.”
http://www.tonyalamonews.com/3235/13110-adg-alamo-parents-plan-to-appeal-severed-rights-affect-13-youths.php
Arkansas Democrat Gazette
January 31, 2010
BY ANDY DAVIS
Alamo parents plan to appeal
Severed rights affect 13 youths
An advocate for members of the Tony Alamo Christian Ministries called a judge’s decision to sever the parental rights of several of those members a “tragedy” and said Saturday that the parents plan to appeal.
“The way to deal with a perpetrator like Tony Alamo is to go after the perpetrator,” said Cheryl Barnes, litigation specialist for the parent advocacy group CPS Watch Legal Team, which assisted the parents with their cases in Miller County Circuit Court. “After that was done, there really wasn’t a need to take all these kids away from their parents.”
Mary Coker, founder of the anti-Alamo group Partnered Against Cult Activity, countered that severing the parents’ rights could give the children a chance at a “normal life.” She noted that authorities have said that even behind bars, Alamo is likely to have influence over the church’s members.
The parents have “shown that they’re going to follow his teachings, and his teachings are what got them into this,” Coker said.
The decision by Miller County Circuit Judge Joe Griffin to sever the parents’ rights came after a three-day hearing at the Juvenile Court Center in Texarkana. Officials with the Arkansas Department of Human Services had recommended that the rights be severed, saying the parents had made no progress in complying with orders that they move off ministry property and find jobs outside the ministry.
The rulings affected 13 children, ages 2-14, from four families. The parents were the first, as a result of an investigation into physical and sexual abuse within the ministry, to lose their legal rights with respect to their children.
Severing the parents’ rights clears the children to be put up for adoption. But Julie Munsell, a spokesman for the Human Services Department, said the department typically wouldn’t make a child available for adoption until any pending appeals are resolved. An exception is when the child is in the care of a relative, who can then choose a “high-risk” adoption, with the understanding that the adoption could be dissolved if the appeal is successful.
Children ages 10 and up must give their consent to be adopted, but a judge can overrule the children’s wishes, Munsell said.
After the hearings in Texarkana ended, shortly after 9 p.m. Friday, the parents hurried away from the court building, declining to comment. One mother, Miriam Krantz, sobbed, clutching her husband’s arm as he led her away.
The proceedings were closed to the public, and Griffin has issued a gag order barring parents, attorneys and others from speaking with reporters about the case.
A sheriff’s deputy said Friday night that Griffin would have no comment on his ruling. A man who answered the door at the ministry complex in Fouke, about 15 miles south of Texarkana, said members of the church also would have no comment.
The children were taken into custody in Fouke and Texarkana in September and November 2008 amid an investigation into allegations of physical and sexual abuse.
Alamo, the ministry’s 75-year-old leader, was sentenced to 175 years in prison in November 2009 after being convicted of taking five underage girls across state lines for sex.
Alamo hasn’t been formally accused of abusing any of the children who are now in foster care, but authorities say some of the girls had been living with him at his house in Fouke along with women Alamo had taken as “wives.”
Authorities also say Alamo ordered some of the children now in foster care to be beaten or put on fasts for violating church rules. Other children were deemed to be at risk because of the ministry’s practices, including allowing girls as young as 12 to marry. Most of the parents weren’t accused of abusing their children but were found to have failed to adequately protect and supervise them.
Judges in Miller County ruled in 2008 and 2009 that the parents could eventually be reunited with their children but only if the parents moved off church property and found jobs outside the ministry.
The parents whose rights were terminated Friday are:
Bert and Miriam Krantz, whose six children range in ages from 2-13.
Greg Seago and Gina Howard. Seago is a ministry member, but Howard left the church in 1999. Griffin terminated the parental rights of Seago and Howard with respect to their two sons, ages 10 and 14. Seago and Howard also have a 15-year-old daughter who was removed from Alamo’s house during the September 2008 raid. The Human Services Department has recommended that she remain in foster care and receive help with her educational expenses and establishing independence.
Alphonso Reid. Griffin terminated Reid’s parental rights with respect to his 11-year old daughter. Reid also has a son, age 17, in foster care, and a daughter who turned 18 last year while in foster care. The children’s mother left the church in 2004. It was unknown whether she attended the hearings or whether her rights were severed.
Carlos and Sophia Parrish, whose four children in foster care range in ages from 2-8. Sophia Parrish gave birth to another child, a boy, last June. Fearing that the Human Services Department would take the baby into foster care, the Parrishes skipped court hearings in October and weren’t in court for their termination of parental rights hearing last week.
In a petition asking Griffin to terminate the Parrishes’ parental rights, the Human Services Department said the Parrishes “apparently abandoned [their children in foster care] in that they have had no contact with them for three months and their whereabouts are currently unknown.”
The children who were the subject of last week’s hearings are among 36 removed from the ministry and placed in foster care.
While some parents have complied with the orders requiring them to establish financial independence with the ministry, others say the orders infringe on their religious freedoms.
In November 2009, the Arkansas Court of Appeals upheld the removal of five of the children, all girls. However, the court did not rule on the parents’ constitutional argument because it said the parents didn’t raise the issue at the trial level.
Several other appeals are pending, and the ministry has challenged the removals in a lawsuit in federal court. The Human Services Department has asked for the lawsuit to be dismissed.
In last week’s hearing, the Human Services Department also asked Griffin to terminate the rights of another couple, Jim and Bethany Myers, but Griffin gave the Myerses additional time to comply with his orders, Barnes said.
The ministry members have been allowed weekly visits with their children in foster care. Once a parent’s rights are terminated, however, the parent does [not] have visitation rights, and the department typically doesn’t recommend that any contact be allowed, Munsell said.
Barnes said the parents were told that if their rights were severed, they would have a final “goodbye visit” with their children and then wouldn’t be allowed any further contact.
Barnes said Griffin could have fashioned a less-severe remedy to protect the children. For instance, she said, he could have assigned guardianship to a relative, an option that would have allowed the parents to visit their children and eventually petition for custody.
If the ministry is truly a cult, Barnes said, “it’s unreasonable to expect the parents to break away from that in 12 months’ time.”
But Munsell said that after a child has been in foster care for more than a year, it’s important to establish a permanent living situation and give the child a new family. Contact with parents who have been abusive or neglectful can often be detrimental, she said.
“You want the child to be able to heal from what’s occurred to them, then move on,” Munsell said.
If a child is adopted by someone outside the family, she said, the biological parent would typically not have any information about the children’s whereabouts. On the other hand, a relative could also petition for custody or to adopt the child. In that case, it would be up to the relative whether to allow contact with the biological parent, Munsell said.
“Some kids always want to return home, even if they were being abused and neglected,” Munsell said. Others, she said, want “a fresh start, because there’s been so much trauma in the past.”
http://www.tonyalamonews.com/3235/13110-adg-alamo-parents-plan-to-appeal-severed-rights-affect-13-youths.php
Parental rights of six Alamo church members terminated
Home / News / Arkansas / Parental rights of six Alamo church members terminated
By Andrew Davis
A judge on Thursday terminated the parental rights of six members of the Tony Alamo Christian Ministries, clearing the way for the members’ children to be put up for adoption.
The rulings by Miller County Circuit Judge Joe Griffin followed the recommendation of the Arkansas Department of Human Services, which said the parents had failed to comply with orders that they move off of church property and find jobs outside the ministry.
The rulings, which came after three days of testimony in Miller County Circuit Court in Texarkana, affected the parents of 13 children from four families.
After the hearings ended, shortly after 9 p.m. Friday, the parents hurried away from the courtroom, declining to comment as they left. One mother, Mirriam Krantz, sobbed uncontrollably, clutching her husband’s arm as he led her to a sport-utility vehicle.
Cheryl Barnes, litigation specialist for the parent advocacy group CPS Watch Legal Team, called the rulings unnecessarily harsh. She noted that Tony Alamo, the ministry’s leader, is expected to spend the rest of his life in prison. She said the parents will appeal the termination of their parental rights.
“The chances of these kids being exposed to Tony Alamo are slim to none now, and it’s just a tragedy that these families have been destroyed,” Barnes said.
A sheriff’s deputy said Griffin would have no comment on his ruling.
The proceedings were closed to the public, and Griffin has issued a gag order barring parents, attorneys and others from speaking with reporters about the case.
Julie Munsell, a spokesman for the Arkansas Department of Human Services, said children whose parents’ legal rights over them are terminated would typically not put up for adoption until the appeals are resolved. She said she couldn’t comment on the ministry children’s cases because of the gag order and laws requiring child welfare proceedings to be kept confidential.
The children were taken into custody in Fouke and Texarkana in September and November 2008 amid an investigation into allegations of physical and sexual abuse.
Tony Alamo, the ministry’s 75-year-old leader, was sentenced to 175 years in prison in November after being convicted of taking five underage girls across state lines for sex.
Last year, judges in Miller County ruled that the parents could be eventually reunited with their children, but only if the parents moved off of church property and found jobs outside the ministry. While some parents have complied with the orders and have been reunited with their children, others say the orders infringe on their religious freedoms.
In November 2009, the Arkansas Court of Appeals upheld the removal of five of the children, all girls. However, the court did not rule on the parents’ constitutional argument because the court said the parents did not raise the issue at the trial level.
Several other appeals are pending, and the ministry has also challenged the removals in a lawsuit in federal court. The Human Services Department has asked for the lawsuit to be dismissed.
Thank you for coming to the Web site of the Arkansas Democrat-Gazette. We're working to keep you informed with the latest breaking news.
This article was published January 29, 2010
http://www.arkansasonline.com/news/2010/jan/29/parental-rights-six-alamo-church-members-terminate/
By Andrew Davis
A judge on Thursday terminated the parental rights of six members of the Tony Alamo Christian Ministries, clearing the way for the members’ children to be put up for adoption.
The rulings by Miller County Circuit Judge Joe Griffin followed the recommendation of the Arkansas Department of Human Services, which said the parents had failed to comply with orders that they move off of church property and find jobs outside the ministry.
The rulings, which came after three days of testimony in Miller County Circuit Court in Texarkana, affected the parents of 13 children from four families.
After the hearings ended, shortly after 9 p.m. Friday, the parents hurried away from the courtroom, declining to comment as they left. One mother, Mirriam Krantz, sobbed uncontrollably, clutching her husband’s arm as he led her to a sport-utility vehicle.
Cheryl Barnes, litigation specialist for the parent advocacy group CPS Watch Legal Team, called the rulings unnecessarily harsh. She noted that Tony Alamo, the ministry’s leader, is expected to spend the rest of his life in prison. She said the parents will appeal the termination of their parental rights.
“The chances of these kids being exposed to Tony Alamo are slim to none now, and it’s just a tragedy that these families have been destroyed,” Barnes said.
A sheriff’s deputy said Griffin would have no comment on his ruling.
The proceedings were closed to the public, and Griffin has issued a gag order barring parents, attorneys and others from speaking with reporters about the case.
Julie Munsell, a spokesman for the Arkansas Department of Human Services, said children whose parents’ legal rights over them are terminated would typically not put up for adoption until the appeals are resolved. She said she couldn’t comment on the ministry children’s cases because of the gag order and laws requiring child welfare proceedings to be kept confidential.
The children were taken into custody in Fouke and Texarkana in September and November 2008 amid an investigation into allegations of physical and sexual abuse.
Tony Alamo, the ministry’s 75-year-old leader, was sentenced to 175 years in prison in November after being convicted of taking five underage girls across state lines for sex.
Last year, judges in Miller County ruled that the parents could be eventually reunited with their children, but only if the parents moved off of church property and found jobs outside the ministry. While some parents have complied with the orders and have been reunited with their children, others say the orders infringe on their religious freedoms.
In November 2009, the Arkansas Court of Appeals upheld the removal of five of the children, all girls. However, the court did not rule on the parents’ constitutional argument because the court said the parents did not raise the issue at the trial level.
Several other appeals are pending, and the ministry has also challenged the removals in a lawsuit in federal court. The Human Services Department has asked for the lawsuit to be dismissed.
Thank you for coming to the Web site of the Arkansas Democrat-Gazette. We're working to keep you informed with the latest breaking news.
This article was published January 29, 2010
http://www.arkansasonline.com/news/2010/jan/29/parental-rights-six-alamo-church-members-terminate/
Saturday, January 30, 2010
Unnecessary, Overburdened - an Article on the Removal of Children from Their Families
Unnecessary, overburdened
Published online 1/26/2010 9:55 PM
Although officials in Reno County claim to be mystified at the obscenely high rate at which children are torn from their families in the county, there is a clue to why it's happening right in your excellent story "Review of SRS status is ongoing," Jan. 17. Tearing "ungovernable" children from their families and parking them in an institution with other "ungovernable" children for a couple of weeks may have been "cutting edge" in the 19th century. Now, it's widely recognized as barbaric.
It doesn't matter how kind the staff may be or how pretty the building, it's still an institution and it's still inherently harmful. And the foolishness of placing a bunch of children with behavior problems together right at the age when they are most vulnerable to peer pressure should be obvious. There are far better answers in such cases, such as wraparound programs, in which intensive help is brought right into the home - 24/7 if necessary - and it still costs less than institutionalizing children.
When a rate of removal is as sky high as Reno County's, odds are a lot of children are being torn from everyone they know and love when family poverty is confused with "neglect." In other cases, families may have real problems, but the right kinds of help could keep them safely together rather than subjecting the children to the enormous inherent trauma of foster care. One major study of 15,000 typical cases found that children left in their own homes fared better in later life even than comparably maltreated children placed in foster care. Other studies have found abuse in at least one in three foster homes. The record of group homes and institutions is worse.
And it's not just the children wrongfully removed who suffer. The more that SRS caseworkers are overloaded with children who don't need to be in foster care, the less time they have to find children in real danger - so more such cases are missed.
The problem is even worse than the official figures show. Unlike every other state, Kansas simply refuses to count a child as removed if he is sent home before the first court hearing. Add in those children and there is a good chance Kansas as a whole is the child-removal capital of America - and Reno County is, of course, far worse than the average for Kansas.
None of this means no child ever should be taken from her or his parents. But it does mean that foster care is an extremely toxic intervention that should be used sparingly and in small doses. Unfortunately, Kansas in general and Reno County in particular have been prescribing mega-doses of foster care, and the county's children are suffering enormously for it. Kansas needs to learn from places that have rebuilt their systems to improve child safety by emphasizing family preservation.
RICHARD WEXLER Executive Director Reform
Alexandria, Va.
http://www.hutchnews.com/Westernfront/wf-Wexler--Richard-1-25--1
Published online 1/26/2010 9:55 PM
Although officials in Reno County claim to be mystified at the obscenely high rate at which children are torn from their families in the county, there is a clue to why it's happening right in your excellent story "Review of SRS status is ongoing," Jan. 17. Tearing "ungovernable" children from their families and parking them in an institution with other "ungovernable" children for a couple of weeks may have been "cutting edge" in the 19th century. Now, it's widely recognized as barbaric.
It doesn't matter how kind the staff may be or how pretty the building, it's still an institution and it's still inherently harmful. And the foolishness of placing a bunch of children with behavior problems together right at the age when they are most vulnerable to peer pressure should be obvious. There are far better answers in such cases, such as wraparound programs, in which intensive help is brought right into the home - 24/7 if necessary - and it still costs less than institutionalizing children.
When a rate of removal is as sky high as Reno County's, odds are a lot of children are being torn from everyone they know and love when family poverty is confused with "neglect." In other cases, families may have real problems, but the right kinds of help could keep them safely together rather than subjecting the children to the enormous inherent trauma of foster care. One major study of 15,000 typical cases found that children left in their own homes fared better in later life even than comparably maltreated children placed in foster care. Other studies have found abuse in at least one in three foster homes. The record of group homes and institutions is worse.
And it's not just the children wrongfully removed who suffer. The more that SRS caseworkers are overloaded with children who don't need to be in foster care, the less time they have to find children in real danger - so more such cases are missed.
The problem is even worse than the official figures show. Unlike every other state, Kansas simply refuses to count a child as removed if he is sent home before the first court hearing. Add in those children and there is a good chance Kansas as a whole is the child-removal capital of America - and Reno County is, of course, far worse than the average for Kansas.
None of this means no child ever should be taken from her or his parents. But it does mean that foster care is an extremely toxic intervention that should be used sparingly and in small doses. Unfortunately, Kansas in general and Reno County in particular have been prescribing mega-doses of foster care, and the county's children are suffering enormously for it. Kansas needs to learn from places that have rebuilt their systems to improve child safety by emphasizing family preservation.
RICHARD WEXLER Executive Director Reform
Alexandria, Va.
http://www.hutchnews.com/Westernfront/wf-Wexler--Richard-1-25--1
Legal Immunity for CPS Workers who Lie?
Legal Immunity for CPS Workers who Lie?
By James R. Marsh on August 5, 2009 12:33 PM
The critics and plaintiffs’ attorneys are out there. They seethe with frustration in their assertion that there are child protection workers who are as dysfunctional and flawed as some of the abusive and neglectful parents they investigate. They feel mistreated, ambushed, without recourse to a neutral oversight authority, and fume that the courts will believe the word of child protection workers over their clients. And yet, when there is a credible allegation that a child protection worker has knowingly made misleading or false statements which resulted in the wrongful removal of a child, their criticism and anger seem justified. Such misrepresentations may involve highly contested issues of material fact that more properly should be examined by an agency supervisor or in court on the merits. The supervisor or court, inadvertently giving credence to the worker’s misrepresentation, may thereby be swayed in favor of the worker’s recommendations.
Guest Feature Article by Daniel Pollack, MSW, JD Legal Aspects of Immunity for Government Social Workers
It is an accepted principle that a parent has a constitutionally protected interest in the custody and care of his or her child. This interest does have exceptions, especially when the child may be in immediate or apparent danger. This is when child protection services gets involved. Crucial to every child protection investigation is to establish the facts and circumstances of the case. When these are presented to the court at a dependency hearing, the evidence may become proof.
The best professional judgment of child protection workers may, in hindsight, be wrong. For this and other reasons, child protection workers usually have some level of immunity from prosecution. [1] When individual government officials are sued for monetary damages they generally are granted either absolute or qualified immunity. The United States Supreme Court has stated that qualified immunity is the norm, absolute immunity is the exception. [2]
Should that immunity disappear when, in their official capacities as child protection workers, they make knowingly inaccurate or false statements which result in the wrongful removal of a child? California law provides for public employee immunity from liability for an injury caused by the employee instituting or prosecuting any judicial or administrative proceeding within the scope of their employment, even if he or she acts maliciously and without probable cause. [3] However, a public employee has no such immunity if he or she acted with malice in committing perjury, fabricating evidence, failing to disclose exculpatory evidence or obtaining evidence by duress.
Generally, whether an employee is acting within the scope of his or her employment is ordinarily a question of fact to be determined in light of the evidence of the particular case. Some courts hold that immunity for child protective workers exists as long as they act responsibly in the performance of their duties. The immunity applies even where a complaint alleges caseworker misconduct or intentional wrongdoing. [4] Others hold that the worker must be involved in a function critical to the judicial process itself. In either case, the more outrageous the employee's alleged tortuous conduct, the less likely it could be described as foreseeable, and the less likely the social service agency could be required to assume responsibility for the act as a general risk of doing business.
Recent Cases
In Doe v. Lebbos, [5] the Ninth Circuit held that a social worker was entitled to absolute immunity for allegedly failing to investigate adequately the allegations of abuse and neglect against a father and in allegedly fabricating evidence in a child dependency petition because those actions had the "requisite connection to the judicial process' to be protected by absolute immunity (at 826)." In Van Emrik v. Chemung County Dep't of Soc. Servs., [6] the court found that child protective caseworkers were entitled to qualified immunity in connection with the removal of a child from the custody of her parents during a child abuse investigation. In the Sixth Circuit and the District of Columbia Circuit the type of immunity depends on the particular task the worker is doing. In Gray v. Poole, [7] the court held that qualified immunity covers social workers acting as investigators, while social workers testifying as witnesses are protected by absolute immunity. In Rippy ex rel. Rippy v. Hattaway, [8] the court ruled that absolute immunity protects social workers who initiate proceedings on behalf of a child. In Austin v. Borel, [9] the court ruled that child protection workers were not entitled to absolute immunity when they filed an "allegedly false verified complaint seeking the removal of two children" from the family home (at 1363).
Ethical Considerations
There is, of course, a difference between misrepresentation of a piece of physical or verbal evidence and the actual creation of false evidence. Misrepresentation involves the willful giving of a misleading representation of the facts. Creation of false evidence involves the act of improperly causing a ‘fact’ to exist. More often, critics and attorneys accuse workers of a willingness to misrepresent, selectively quote, and misconstrue information to support their claims and therefore to present an entirely misleading case. Rather than sticking to agency protocols and training the workers sensationalize their documentation and findings in a misleading fashion.
To what extent are such allegations true? Do workers consciously or unconsciously misrepresent evidence, and selectively engage in systematic distortion? How often do they may make deliberate efforts to mislead, deceive, or confuse their own supervisor or the court in order to promote their own personal or ideological objectives? How frequently are workers omitting or concealing material facts? Under the guise of vigilance, are there child protection workers whose adherence to rules and procedures is purposely excessive?
From a social work, legal, or judicial perspective, making a knowing misrepresentation in a child protection case is a serious ethical breach. The NASW Code of Ethics, 4.01(c), notes that: “Social workers should base practice on recognized knowledge, including empirically based knowledge, relevant to social work and social work ethics.” At 4.04 the Code goes on to state: “Social workers should not participate in, condone, or be associated with dishonesty, fraud, or deception.” Dishonesty, shading the truth, or a lack of candor cannot be tolerated in child protection services, a field of endeavor built upon trust and respect for the law. Whether or not child protection workers deserve immunity from prosecution when they misrepresent or fabricate evidence is a question each states’ courts are dealing with. Similarly, each court must decide whether such misconduct warrants setting aside the decision to remove the child from his or her home. In the final analysis, the question might soon find itself before the U.S. Supreme Court.
A worker’s misrepresentation or fabrication of evidence is particularly pernicious because it puts the whole field of child protection in a negative light. Whether or not immunity is granted, there is simply no excuse for this kind of willful and egregious conduct.
Endnotes
[1] See, e.g., Abdouch v. Burger, 426 F.3d 982 (8th Cir. 2005) and Babcock v. Tyler (884 F.2d 497 (9th Cir. 1989) (absolute immunity shields social workers to the extent that their role is functionally equivalent to that of a prosecutor); but see Burton v. Richmond, 276 F.3d 973 (2002) (when a state department of human services affirmatively places children in an abusive foster care setting, the state may be liable for damages); Gray v. Poole, 275 F.3d 1113, (D.C. Cir. 2002) (qualified immunity covers social service workers acting as investigators, but when testifying as witnesses they are protected by absolute immunity). Qualified immunity is often afforded if the social work is involved in a “discretionary function” unless his or her conduct is clearly a violation of a statute or constitutional principle (Snell v. Tunnell, 698 F. Supp. 1542 (W.D. Okla. 1988).
[2] Harlow v. Fitzgerald, 457 U.S. 800 (1982) (absolute immunity is appropriate in limited circumstances -- judicial, prosecutorial, and legislative functions-- whereas executive officials usually receive qualified immunity).
[3] Cal. Gov't Code § 821.6
[4] Cunningham v. Wenatchee, 214 F. Supp. 2d 1103 (E.D. Wash. 2002).
[5] 348 F.3d 820 (9th Cir. 2003).
[6] 911 F.2d 863, (2d Cir. 1990).
[7] 275 F.3d 1113 (D.C. Cir 2002).
[8] 270 F.3d 416 (6th Cir. 2001).
[9] 830 F.2d 1356, 1363 (5th Cir. 1987).
--------------------------------------------------------------------------------
This article originally appeared in the APSAC Advisor: Do child protection workers deserve immunity when they misrepresent or fabricate evidence?, American Professional Society on the Abuse of Children Advisor, 21(2), 18-19.
Daniel Pollack, MSW, JD is full professor at Yeshiva University School of Social Work in New York City and is a frequent expert witness and contributer to this blog.
Categories:Child Welfare News
Tags:Foster Care
http://www.childlaw.us/2009/08/legal-immunity-for-cps-workers.html#more
By James R. Marsh on August 5, 2009 12:33 PM
The critics and plaintiffs’ attorneys are out there. They seethe with frustration in their assertion that there are child protection workers who are as dysfunctional and flawed as some of the abusive and neglectful parents they investigate. They feel mistreated, ambushed, without recourse to a neutral oversight authority, and fume that the courts will believe the word of child protection workers over their clients. And yet, when there is a credible allegation that a child protection worker has knowingly made misleading or false statements which resulted in the wrongful removal of a child, their criticism and anger seem justified. Such misrepresentations may involve highly contested issues of material fact that more properly should be examined by an agency supervisor or in court on the merits. The supervisor or court, inadvertently giving credence to the worker’s misrepresentation, may thereby be swayed in favor of the worker’s recommendations.
Guest Feature Article by Daniel Pollack, MSW, JD Legal Aspects of Immunity for Government Social Workers
It is an accepted principle that a parent has a constitutionally protected interest in the custody and care of his or her child. This interest does have exceptions, especially when the child may be in immediate or apparent danger. This is when child protection services gets involved. Crucial to every child protection investigation is to establish the facts and circumstances of the case. When these are presented to the court at a dependency hearing, the evidence may become proof.
The best professional judgment of child protection workers may, in hindsight, be wrong. For this and other reasons, child protection workers usually have some level of immunity from prosecution. [1] When individual government officials are sued for monetary damages they generally are granted either absolute or qualified immunity. The United States Supreme Court has stated that qualified immunity is the norm, absolute immunity is the exception. [2]
Should that immunity disappear when, in their official capacities as child protection workers, they make knowingly inaccurate or false statements which result in the wrongful removal of a child? California law provides for public employee immunity from liability for an injury caused by the employee instituting or prosecuting any judicial or administrative proceeding within the scope of their employment, even if he or she acts maliciously and without probable cause. [3] However, a public employee has no such immunity if he or she acted with malice in committing perjury, fabricating evidence, failing to disclose exculpatory evidence or obtaining evidence by duress.
Generally, whether an employee is acting within the scope of his or her employment is ordinarily a question of fact to be determined in light of the evidence of the particular case. Some courts hold that immunity for child protective workers exists as long as they act responsibly in the performance of their duties. The immunity applies even where a complaint alleges caseworker misconduct or intentional wrongdoing. [4] Others hold that the worker must be involved in a function critical to the judicial process itself. In either case, the more outrageous the employee's alleged tortuous conduct, the less likely it could be described as foreseeable, and the less likely the social service agency could be required to assume responsibility for the act as a general risk of doing business.
Recent Cases
In Doe v. Lebbos, [5] the Ninth Circuit held that a social worker was entitled to absolute immunity for allegedly failing to investigate adequately the allegations of abuse and neglect against a father and in allegedly fabricating evidence in a child dependency petition because those actions had the "requisite connection to the judicial process' to be protected by absolute immunity (at 826)." In Van Emrik v. Chemung County Dep't of Soc. Servs., [6] the court found that child protective caseworkers were entitled to qualified immunity in connection with the removal of a child from the custody of her parents during a child abuse investigation. In the Sixth Circuit and the District of Columbia Circuit the type of immunity depends on the particular task the worker is doing. In Gray v. Poole, [7] the court held that qualified immunity covers social workers acting as investigators, while social workers testifying as witnesses are protected by absolute immunity. In Rippy ex rel. Rippy v. Hattaway, [8] the court ruled that absolute immunity protects social workers who initiate proceedings on behalf of a child. In Austin v. Borel, [9] the court ruled that child protection workers were not entitled to absolute immunity when they filed an "allegedly false verified complaint seeking the removal of two children" from the family home (at 1363).
Ethical Considerations
There is, of course, a difference between misrepresentation of a piece of physical or verbal evidence and the actual creation of false evidence. Misrepresentation involves the willful giving of a misleading representation of the facts. Creation of false evidence involves the act of improperly causing a ‘fact’ to exist. More often, critics and attorneys accuse workers of a willingness to misrepresent, selectively quote, and misconstrue information to support their claims and therefore to present an entirely misleading case. Rather than sticking to agency protocols and training the workers sensationalize their documentation and findings in a misleading fashion.
To what extent are such allegations true? Do workers consciously or unconsciously misrepresent evidence, and selectively engage in systematic distortion? How often do they may make deliberate efforts to mislead, deceive, or confuse their own supervisor or the court in order to promote their own personal or ideological objectives? How frequently are workers omitting or concealing material facts? Under the guise of vigilance, are there child protection workers whose adherence to rules and procedures is purposely excessive?
From a social work, legal, or judicial perspective, making a knowing misrepresentation in a child protection case is a serious ethical breach. The NASW Code of Ethics, 4.01(c), notes that: “Social workers should base practice on recognized knowledge, including empirically based knowledge, relevant to social work and social work ethics.” At 4.04 the Code goes on to state: “Social workers should not participate in, condone, or be associated with dishonesty, fraud, or deception.” Dishonesty, shading the truth, or a lack of candor cannot be tolerated in child protection services, a field of endeavor built upon trust and respect for the law. Whether or not child protection workers deserve immunity from prosecution when they misrepresent or fabricate evidence is a question each states’ courts are dealing with. Similarly, each court must decide whether such misconduct warrants setting aside the decision to remove the child from his or her home. In the final analysis, the question might soon find itself before the U.S. Supreme Court.
A worker’s misrepresentation or fabrication of evidence is particularly pernicious because it puts the whole field of child protection in a negative light. Whether or not immunity is granted, there is simply no excuse for this kind of willful and egregious conduct.
Endnotes
[1] See, e.g., Abdouch v. Burger, 426 F.3d 982 (8th Cir. 2005) and Babcock v. Tyler (884 F.2d 497 (9th Cir. 1989) (absolute immunity shields social workers to the extent that their role is functionally equivalent to that of a prosecutor); but see Burton v. Richmond, 276 F.3d 973 (2002) (when a state department of human services affirmatively places children in an abusive foster care setting, the state may be liable for damages); Gray v. Poole, 275 F.3d 1113, (D.C. Cir. 2002) (qualified immunity covers social service workers acting as investigators, but when testifying as witnesses they are protected by absolute immunity). Qualified immunity is often afforded if the social work is involved in a “discretionary function” unless his or her conduct is clearly a violation of a statute or constitutional principle (Snell v. Tunnell, 698 F. Supp. 1542 (W.D. Okla. 1988).
[2] Harlow v. Fitzgerald, 457 U.S. 800 (1982) (absolute immunity is appropriate in limited circumstances -- judicial, prosecutorial, and legislative functions-- whereas executive officials usually receive qualified immunity).
[3] Cal. Gov't Code § 821.6
[4] Cunningham v. Wenatchee, 214 F. Supp. 2d 1103 (E.D. Wash. 2002).
[5] 348 F.3d 820 (9th Cir. 2003).
[6] 911 F.2d 863, (2d Cir. 1990).
[7] 275 F.3d 1113 (D.C. Cir 2002).
[8] 270 F.3d 416 (6th Cir. 2001).
[9] 830 F.2d 1356, 1363 (5th Cir. 1987).
--------------------------------------------------------------------------------
This article originally appeared in the APSAC Advisor: Do child protection workers deserve immunity when they misrepresent or fabricate evidence?, American Professional Society on the Abuse of Children Advisor, 21(2), 18-19.
Daniel Pollack, MSW, JD is full professor at Yeshiva University School of Social Work in New York City and is a frequent expert witness and contributer to this blog.
Categories:Child Welfare News
Tags:Foster Care
http://www.childlaw.us/2009/08/legal-immunity-for-cps-workers.html#more
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