American soldiers still losing custody of children while deployed due to lack of action by goverment
March 3, 8:16 AM Albany CPS and Family Court ExaminerDaniel Weaver
Update: See new information posted at bottom of article concerning New York State law.
Richard Diffin, Jr. waited until his ex-wife, Tanya Towne, was deployed to Iraq, then he made his move, filing for custody of their son in Montgomery County New York Family Court. At first he was granted temporary custody by Philip Cortese, Montgomery County Family Court judge, then he parlayed the temporary custody into primary permanent custody. Tanya appealed to the State of New York Supreme Court, Appellate Division Third Judicial Department but lost.
In its January 3, 2008 decision the Supreme Court stated clearly that both mother and father were good parents. However, it also made it clear that the only reason Tanya lost custody of her son was that she was deployed, stating that the original custody arrangement "...but for the mother's deployment in 2004, might well remain in effect today."
Tanya's story was in the news for awhile, eventually becoming part of a Good Housekeeping story, Deployed Military Parents: Choosing Custody or Duty and was featured on NPR.
Tanya Towne's story updated
I caught up with Tanya recently via FaceBook and email to see how she was doing now that it has been two years since the appellate court ruled against her.
The most important question I had for Tanya was how the court's decision had affected her relationship with her son.
Tanya said, "I don't get to see him every month, sometimes its 6 months between visits because Virginia [where her son lives] has no Winter break so I have to wait from December until June to see him again. I get holidays every other year, and I get 2 months every Summer."
Tanya feels like she is somewhat of a stranger now to her son, and says that if it wasn't for texting she would hardly ever be able to communicate with him.
Tanya Towne just one of many soldiers who have lost custody of their children
As the Good Housekeeping article referenced above shows clearly, Tanya is only one of many military parents who have been deployed in Iraq and Afghanistan, only to find out when they get home that they have lost custody of their children due to loopholes in state and federal laws that are supposed to protect our soldiers against such actions while they are deployed. Some parents have gone AWOL rather than lose custody of their children.
I asked Tanya if any new legislation had been passed to close those loopholes. She was not aware of any. At one point she was asked to attend a hearing in Washington DC about new legislation to protect the rights of military personnel but was never contacted again.
While a press release from Tully Legal indicates that the Defense Authorization Bill of 2008, signed by President George W. Bush only 25 days after the appellate court denied Tanya's appeal, amended the law to protect soldiers like Tanya, the law apparently does not adequately remedy the situation. Only minor amendments were made to sections 584 and 586.
Deployed parents still not adequately protected from losing custody of children
A piece by CBS Evening News in December of 2009 shows that parents are still losing custody of their children while deployed overseas.
Representative Michael R. Turner, Ohio Republican and senior member of the House Armed Services Committee, also stated in an October 8, 2009 column in the Washington Times, Ensuring child-custody protectiion Military parents shouldn't be punished for deployment, that we are still not adequately protecting our soldiers' child custody rights.
In his opinion piece, Turner said:
"Unfortunately, the absence of child-custody protections for our military parents is not by accident. Defense Secretary Robert M. Gates remains opposed to federal child-custody protections simply because the Pentagon views such protections as "a matter of state law concern." Rather than working to implement a federal protection that would not infringe upon state law, which I am currently advocating in Congress, the secretary is blocking any such effort, opting to pursue a lengthy and unlikely course of urging each state to change its own laws. Mr. Gates refuses to meet with me to discuss this."
A few states have passed legislation to protect deployed parents but not New York State.
Advice for soldiers about to be deployed overseas
So I asked Tanya what advice about custody arrangements did she have for soldiers who are about to be deployed overseas.
"Get everything in writing and have it clearly written," Tanya responded. "I thought Derrell was to be returned to me as soon as I got back but a new petition changed that. Ask questions and discuss worse case scenarios with your attorneys. Unfortunately if you have joint custody there is no choice but to send the child with the other parent, but for others, make sure you leave them with someone you trust, put everything in writing, and cover all bases."
What disappointed me in both Judge Philip Cortese's and the appellate court's decisions is that they failed to mention or thank Tanya for her more than 16 years of service to her country. Neither did they mention the injustice of what happened regardless of its legality. (Judges have more than once mentioned the injustice of New York State's lack of no-fault divorce in cases where their ruling was in opposition to their sense of justice.) This in spite of the fact that when injustice involves him, Judge Cortese is more than willing to talk about it.
Tanya is now getting on with her life. Her cases in family and supreme court cost her thousands of dollars. She has been able to recover financially, owns her own home and is raising her other son who is five years old. However, she still pays child support for Derrell.
The troubling thing about Tanya's situation is that she suffered for nothing. The trauma that Tanya went through in trying to get her son back would have not been so bad, if at least it had resulted in laws being enacted to protect soldiers in the future from losing custody of their children due to deployment.
But that didn't happen because while Tanya Towne served her country faithfully, our legislators in Albany and Washington have been AWOL.
Article Update
According to one person who left a comment below, New York State has acted to protect the rights of the military concerning custody of their children.
Following is the appropriate part of the Family Court Act. I am not an attorney, but after reading the following I am not convinced that the law adequately protects soldiers. If I am reading it right, it still would not have helped Tanya Towne.
(f) Military service by parent; effect on child custody orders. 1.
During the period of time that a parent is activated, deployed or
temporarily assigned to military service, such that the parent's ability
to continue as a joint caretaker or the primary caretaker of a minor
child is materially affected by such military service, any orders issued
pursuant to this section, based on the fact that the parent is
activated, deployed or temporarily assigned to military service, which
would materially affect or change a previous judgment or order regarding
custody of that parent's child or children as such judgment or order
existed on the date the parent was activated, deployed, or temporarily
assigned to military service, shall be subject to review pursuant to
paragraph three of this subdivision. Any relevant provisions of the
Service Member's Civil Relief Act shall apply to all proceedings
governed by this section.
2. During such period, the court may enter an order to modify custody
if there is clear and convincing evidence that the modification is in
the best interests of the child. An attorney for the child shall be
appointed in all cases where a modification is sought during such
military service. Such order shall be subject to review pursuant to
paragraph three of this subdivision. When entering an order pursuant to
this section, the court shall consider and provide for, if feasible and
if in the best interests of the child, contact between the military
service member and his or her child including, but not limited to,
electronic communication by e-mail, webcam, telephone, or other
available means. During the period of the parent's leave from military
service, the court shall consider the best interests of the child when
establishing a parenting schedule, including visiting and other contact.
For such purpose, a "leave from military service" shall be a period of
not more than three months.
3. Unless the parties have otherwise stipulated or agreed, if an order
is issued pursuant to this subdivision, the return of the parent from
active military service, deployment or temporary assignment shall be
considered a substantial change in circumstances. Upon the request of
either parent, the court shall determine on the basis of the child's
best interests whether the custody judgment or order previously in
effect should be modified.
4. This subdivision shall not apply to assignments to permanent duty
stations or permanent changes of station.
http://www.examiner.com/x-14537-Albany-CPS-and-Family-Court-Examiner~y2010m3d3-American-soldiers-still-losing-custody-of-children-while-deployed-due-to-lack-of-action-by-goverment
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
Monday, March 8, 2010
NC Court of Appeals rules procedure for putting people on child abuse register is unconstitutional
NC Court of Appeals rules procedure for putting people on child abuse register is unconstitutional
March 4, 9:26 AMAlbany CPS and Family Court Examiner Daniel Weaver
Copyright Wikimedia Commons
Another state rules that its procedure for putting individual's name on child abuse register is unconstitutional.
In a decision filed on March 2, 2010, the North Carolina Court of Appeals ruled that the procedure for placing an individual's name on the North Carolina Responsible Individuals List, a child abuse and neglect registry, is unconstitutional under the Fifth and Fourteenth Amendments to the United States Consitution and Article I, Section 19 9f the North Carolina Constitution. The procedure challenged by Petitioner, Kelly Holt, in the Matter Of W.B.M., A Minor Child, violates an individual's due process rights, declared the court in overturning the trial court's decision.
Because the issue had never been heard previously before the North Carolina Court of Appeals, the court gave a full explanation of the method by which a person's name is put on North Carolina's abuse register prior to considering the facts and merits of the case.
While procedures differ in different states, what happens in North Carolina is generally what happens in almost every other state, i.e. the accused individual's name is placed on the abuse register prior to having a hearing. Prospective employers, adoption agencies, etc. access this list to gather information on whether or not a potential employee, adoptive parent, etc. is on the list.
Missouri was the first state to declare unconstituional its procedure of placing a person's name on the register prior to due process in Jamison v. Dep't of Soc. Servs., Div of Family Servs (opens as an rtf file). Because there was no case law in North Carolina to base their decision on, the North Carolina Court of Appeals looked to the Missouri case for guidance, even though North Carolina is not bound by the decisions of other jurisdictions.
In the conclusion to its decision, the court stated:
"It has long been recognized that "fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights." Joint Anti-Fascist Refugee Comm., 341 U.S. at 170, 95 L. Ed. at 853 (footnote omitted). "The validity and moral authority of a conclusion largely depend on the mode by which it was reached . . . [and n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it." Id. at 171-72, 95 L. Ed. at 854. "Due process is perhaps the most majestic concept in our whole constitutional system. While it contains the garnered wisdom of the past in assuring fundamental justice, it is also a living principle not confined to past instances." Id. at 174, 95 L. Ed. at 855. Because the statutory procedures for placing an individual on the RIL deprive individuals of due process, they are unconstitutional under the North Carolina Constitution. Accordingly, the orders of the trial court are reversed." (emphasis added).
http://www.examiner.com/x-14537-Albany-CPS-and-Family-Court-Examiner~y2010m3d4-NC-Court-of-Appeals-rules-procedure-for-putting-people-on-child-abuse-register-is-unconstitutional
March 4, 9:26 AMAlbany CPS and Family Court Examiner Daniel Weaver
Copyright Wikimedia Commons
Another state rules that its procedure for putting individual's name on child abuse register is unconstitutional.
In a decision filed on March 2, 2010, the North Carolina Court of Appeals ruled that the procedure for placing an individual's name on the North Carolina Responsible Individuals List, a child abuse and neglect registry, is unconstitutional under the Fifth and Fourteenth Amendments to the United States Consitution and Article I, Section 19 9f the North Carolina Constitution. The procedure challenged by Petitioner, Kelly Holt, in the Matter Of W.B.M., A Minor Child, violates an individual's due process rights, declared the court in overturning the trial court's decision.
Because the issue had never been heard previously before the North Carolina Court of Appeals, the court gave a full explanation of the method by which a person's name is put on North Carolina's abuse register prior to considering the facts and merits of the case.
While procedures differ in different states, what happens in North Carolina is generally what happens in almost every other state, i.e. the accused individual's name is placed on the abuse register prior to having a hearing. Prospective employers, adoption agencies, etc. access this list to gather information on whether or not a potential employee, adoptive parent, etc. is on the list.
Missouri was the first state to declare unconstituional its procedure of placing a person's name on the register prior to due process in Jamison v. Dep't of Soc. Servs., Div of Family Servs (opens as an rtf file). Because there was no case law in North Carolina to base their decision on, the North Carolina Court of Appeals looked to the Missouri case for guidance, even though North Carolina is not bound by the decisions of other jurisdictions.
In the conclusion to its decision, the court stated:
"It has long been recognized that "fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights." Joint Anti-Fascist Refugee Comm., 341 U.S. at 170, 95 L. Ed. at 853 (footnote omitted). "The validity and moral authority of a conclusion largely depend on the mode by which it was reached . . . [and n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it." Id. at 171-72, 95 L. Ed. at 854. "Due process is perhaps the most majestic concept in our whole constitutional system. While it contains the garnered wisdom of the past in assuring fundamental justice, it is also a living principle not confined to past instances." Id. at 174, 95 L. Ed. at 855. Because the statutory procedures for placing an individual on the RIL deprive individuals of due process, they are unconstitutional under the North Carolina Constitution. Accordingly, the orders of the trial court are reversed." (emphasis added).
http://www.examiner.com/x-14537-Albany-CPS-and-Family-Court-Examiner~y2010m3d4-NC-Court-of-Appeals-rules-procedure-for-putting-people-on-child-abuse-register-is-unconstitutional
Parents' right to make medical decisions at stake in lawsuit
Mueller v. Auker
Parents' right to make medical decisions at stake in lawsuit
Corissa Mueller and her daughter Taige
CIR's case on behalf of Eric and Corissa Mueller is one of the most important civil liberties cases now pending and the only one concerned with child protection law.
In recent years, the body of law protecting the institution of marriage and family has yielded to efforts by the government to regulate and recreate these institutions. On the one hand, judges busy themselves re-writing the laws of marriage to accommodate a broad array of individual partnerings. Yet on the other hand state child protection laws routinely sanction the removal children from traditional families for even slight deviations from current fashions in education, child rearing, and medical treatment.
CIR’s effort to restore principle to this area of the law continues to focus on its representation of the Mueller family in their efforts to hold child protection officials and police officers accountable for the unconstitutional seizure of their infant child Taige. In August 2002, a few weeks after birth, she came down with a temperature. As a newborn child is especially vulnerable to infection, her mother, Corissa Mueller, was advised to take her to nearby St. Luke's Medical Center.
Corissa—who has a degree in chemical engineering—discussed Taige's treatment with the physician, including the risks and benefits of treating her for meningitis. Thinking Taige was suffering the aftereffects of the family's recent bout with the flu,
"THE RIGHT TO FAMILY ASSOCIATION INCLUDES THE RIGHT OF PARENTS TO MAKE IMPORTANT MEDICAL DECISIONS FOR THEIR CHILDREN, AND OF CHILDREN TO HAVE THOSE DECISIONS MADE BY THEIR PARENTS RATHER THAN BY THE STATE"
WALLIS v. SPENCER, 202 F.3d 1125 (9th Cir. 1999)
she asked to defer a spinal tap until other, less invasive (and less risky) treatments had been tried. The doctor agreed.
Unbeknownst to Corissa, though, the concerns she voiced about the risks of a spinal tap triggered a call to Child Protective Services (CPS), which then spiraled into the forcible seizure of Taige. The police officers restrained Corissa (one on each arm) and took her down the hall while the doctor performed the spinal tap. This happened despite the fact that, by then, Taige’s temperature had returned to normal.
Read what happened next....
The problem: no limits to child protective services
Though child protective services is supposed to protect chidren against neglect and abuse, it is not well situated to settle differences of opinion between a conscientious mother and an aggressive doctor. Corissa Mueller's "neglect" in this case consisted in nothing more than discussing Taige's treatment step by step and insisting on approving each procedure only when
needed.
A child protective services system that countenances the seizure of a child to preempt further discussion about the risks of an invasive medical procedure no longer serves the interests of the children it was designed to protect.
At the root of the problem is the fact that the Idaho child protection law—and the laws of many other states—immunizes doctors, police and CPS workers from negligently applying the requirements of the CPS law. As a result, city and state officials and even private doctors know there is no penalty for assume custody of a child, even over a parent's reasonable efforts to direct medical treatment.
Restoring limits and accountability to the system
In late August 2004, CIR filed suit in federal court in Boise, asserting that the Muellers possess a fundamental constitutional right to raise their children without unreasonable intrusion from state authorities.
CIR’s case hinges on the principle that the federal Constitution
provides a fundamental guarantee of parental rights—including the
right to make important medical decisions and the right to be informed of their children’s status and whereabouts.
On February 26, 2007, Judge B. Lynn Winmill agreed with CIR that the federal Constitution does not permit state officials to assume custody of a minor child over a difficult medical decision:
[A] difficult choice -- a choice that poses risks either way -- should never trigger intervention by the state. With no safe alternative, the state...loses all claim to make decisions for the child.
In addition, Winmill ruled that police officer Dale Rogers is liable in his personal capacity for failing to call Eric Mueller (who was at home with the couple's other two children) to inform him of the state's intention to assume custody fo Taige. Officer Rogers appealed his liability to the U.S. Court of Appeals for the Ninth Circuit, which heard argument on this question on September 15, 2008. You can read CIR's brief on this issue here.
Following the Ninth Circuit’s ruling, the
Von and Taige Mueller
case will be remanded to the district court for a trial to settle various factual disputes about what happened that night in the emergency room.
The Mueller case could spell out the federal constitutional limits on the authority of state officials to interfere with family decisions about medical, educational or other difficult issues. State officials no longer could presume a child to be in imminent danger solely to settle a disagreement over a complex decision.
Read the district court's opinions:
opinion (June 7, 2007)
opinion (February 26, 2007)
opinion (April 14, 2006)
opinion (April 13, 2005)
Read the amended complaint (October 13, 2004)
Read press releases:
CIR press release (October 30, 2006)
CIR press release (April 18, 2006)
CIR press release (August 10, 2005)
CIR press release (September 29, 2004)
Read Idaho Statesman article about the case
The Muellers: Noah, Corissa, Taige, Eric and Von
Corissa Mueller had no reason to
expect that discussing her daughter's treatment with emergency room staff would lead to her infant's forcible seizure of by state child welfare officials.
Corissa and her husband both have degrees in engineering. After college, they went to Texas, where they worked for Motorola. Until Taige was seized by CPS, Corissa worked as a chemical engineer, while Eric completed an advanced engineering degree.
A few years ago they moved to Boise, which boasts its own concentration of high tech companies. Eric works for a computer chip manufacturer and Corissa raises their three children, Von, Taige, and a brother Noah, born July, 2008. As someone with a scientific background, Corissa is trained to gather information and make an objective decisions. Especially when it comes to her children.
August 12, 2002
Which is why she took Taige to the hospital in the first place. Taige had a low grade fever (100.8) and wasn't eating well. Though Corissa thought Taige probably was suffering the aftereffects of the same flu that recently had run through her family, she knew that an infant's immune system is not fully developed and that it was important to have expert medical care in case Taige had something more serious.
When she arrived at St. Luke's that night in August 2002, a physician recommended a variety of treatments -- from giving Taige fluids and a full blood test to administering antibiotics and a spinal tap.
Corissa carefully considered the benefits and risks of each of them. She understood the risk of brain damage, paralysis, and death from a spinal tap. She weighed that risk against the odds that Taige actually had meningitis -- which the doctor said was less than five percent. She listened to the doctor's cautionary advice that it's better to do a spinal tap sooner rather than later, as an infant's temperature can increase rapidly.
Corissa decided to give Taige fluids and do a full blood test. If the temperature came down and the blood test didn't turn up any problems, she reasoned that the spinal tap might not be necessary. The doctor agreed to this plan. And, thankfully, Taige's temperature did come down. Not only that, the blood tests came back "normal." So Corissa started to think that her hunch had been right, that it was just the flu after all. And since it was 1:30 am, she asked a nurse about taking Taige home.
Child protective services shows up
Unbeknownst to Corissa, her earlier conversation about deferring the spinal tap had triggered a call to child protective services.
OFFICER SNYDER: WELL, CALM DOWN. OKAY? LET'S TAKE THIS ONE STEP AT A TIME.
MRS. MUELLER: WHAT HAVE THEY DONE TO MY BABY?
OFFICER SNYDER: THEY'RE GONNA DO THE TESTS THAT THE DOCTOR SAID THEY WERE GONNA DO....
MRS. MUELLER: HOW CAN YOU DO THAT? LET ME CALL MY HUSBAND!
OFFICER SNYDER: MY OTHER CHOICE IS TO PUT YOU IN HANDCUFFS. WOULD YOU RATHER ME DO THAT?
Two Boise police officers and a CPS worker arrived and took custody of Taige. The police officers restrained Corissa (one on each arm) and took her down the hall while the doctor performed the spinal tap.
And even though they had never discussed it with Corissa, they gave Taige steroids to forestall the brain swelling that can occur as a consequence of removing spinal fluid from such a tiny child.
While this was going on, the police officers physically restrained Corissa, told her she couldn't use the telephone and finally asked her to leave the hospital.
But Corissa refused. Because she knew that Taige was allergic to formula and that her baby would soon need her mother in order to nurse. Forty eight hours after the state seized Taige, a judge sensibly returned her to her parent's custody.
Oh...send her home.
Though child protective services probably conjures up child abuse, what we have here is a case about a difference of opinion
between a conscientious mother and a aggressive doctor. To put it another way, the mother's "crime" was discussing her infant's treatment step by step and insisting on approving each procedure only when needed.
Tape recordings made by the police officers of their conversations that night reveal that both they and the CPS worker knew that there was no legal basis to take Taige from her mother. One officer says:
"...legally we would be violating her rights to do that....she's not doing anything to harm her child."
But, incredibly, they agreed to seize Taige anyway. The CPS worker explained to the officers how this could be accomplished:
"Well if nothing else, they could declare her and she could go to shelter care for two days and in that time she would be treated. And then in shelter care the judge can say 'Oh send her home.'"
You can read the full transcript here (.pdf))
So in this case, CPS workers and city police manipulated the rules in order to end discussion between the doctor and Corissa.
The tapes make clear that the CPS worker and the police officers all knew that what they were about to do would violate Corissa's legal rights. But they just went ahead and did it anyway.
http://www.cir-usa.org/cases/mueller_v_idaho.html
Parents' right to make medical decisions at stake in lawsuit
Corissa Mueller and her daughter Taige
CIR's case on behalf of Eric and Corissa Mueller is one of the most important civil liberties cases now pending and the only one concerned with child protection law.
In recent years, the body of law protecting the institution of marriage and family has yielded to efforts by the government to regulate and recreate these institutions. On the one hand, judges busy themselves re-writing the laws of marriage to accommodate a broad array of individual partnerings. Yet on the other hand state child protection laws routinely sanction the removal children from traditional families for even slight deviations from current fashions in education, child rearing, and medical treatment.
CIR’s effort to restore principle to this area of the law continues to focus on its representation of the Mueller family in their efforts to hold child protection officials and police officers accountable for the unconstitutional seizure of their infant child Taige. In August 2002, a few weeks after birth, she came down with a temperature. As a newborn child is especially vulnerable to infection, her mother, Corissa Mueller, was advised to take her to nearby St. Luke's Medical Center.
Corissa—who has a degree in chemical engineering—discussed Taige's treatment with the physician, including the risks and benefits of treating her for meningitis. Thinking Taige was suffering the aftereffects of the family's recent bout with the flu,
"THE RIGHT TO FAMILY ASSOCIATION INCLUDES THE RIGHT OF PARENTS TO MAKE IMPORTANT MEDICAL DECISIONS FOR THEIR CHILDREN, AND OF CHILDREN TO HAVE THOSE DECISIONS MADE BY THEIR PARENTS RATHER THAN BY THE STATE"
WALLIS v. SPENCER, 202 F.3d 1125 (9th Cir. 1999)
she asked to defer a spinal tap until other, less invasive (and less risky) treatments had been tried. The doctor agreed.
Unbeknownst to Corissa, though, the concerns she voiced about the risks of a spinal tap triggered a call to Child Protective Services (CPS), which then spiraled into the forcible seizure of Taige. The police officers restrained Corissa (one on each arm) and took her down the hall while the doctor performed the spinal tap. This happened despite the fact that, by then, Taige’s temperature had returned to normal.
Read what happened next....
The problem: no limits to child protective services
Though child protective services is supposed to protect chidren against neglect and abuse, it is not well situated to settle differences of opinion between a conscientious mother and an aggressive doctor. Corissa Mueller's "neglect" in this case consisted in nothing more than discussing Taige's treatment step by step and insisting on approving each procedure only when
needed.
A child protective services system that countenances the seizure of a child to preempt further discussion about the risks of an invasive medical procedure no longer serves the interests of the children it was designed to protect.
At the root of the problem is the fact that the Idaho child protection law—and the laws of many other states—immunizes doctors, police and CPS workers from negligently applying the requirements of the CPS law. As a result, city and state officials and even private doctors know there is no penalty for assume custody of a child, even over a parent's reasonable efforts to direct medical treatment.
Restoring limits and accountability to the system
In late August 2004, CIR filed suit in federal court in Boise, asserting that the Muellers possess a fundamental constitutional right to raise their children without unreasonable intrusion from state authorities.
CIR’s case hinges on the principle that the federal Constitution
provides a fundamental guarantee of parental rights—including the
right to make important medical decisions and the right to be informed of their children’s status and whereabouts.
On February 26, 2007, Judge B. Lynn Winmill agreed with CIR that the federal Constitution does not permit state officials to assume custody of a minor child over a difficult medical decision:
[A] difficult choice -- a choice that poses risks either way -- should never trigger intervention by the state. With no safe alternative, the state...loses all claim to make decisions for the child.
In addition, Winmill ruled that police officer Dale Rogers is liable in his personal capacity for failing to call Eric Mueller (who was at home with the couple's other two children) to inform him of the state's intention to assume custody fo Taige. Officer Rogers appealed his liability to the U.S. Court of Appeals for the Ninth Circuit, which heard argument on this question on September 15, 2008. You can read CIR's brief on this issue here.
Following the Ninth Circuit’s ruling, the
Von and Taige Mueller
case will be remanded to the district court for a trial to settle various factual disputes about what happened that night in the emergency room.
The Mueller case could spell out the federal constitutional limits on the authority of state officials to interfere with family decisions about medical, educational or other difficult issues. State officials no longer could presume a child to be in imminent danger solely to settle a disagreement over a complex decision.
Read the district court's opinions:
opinion (June 7, 2007)
opinion (February 26, 2007)
opinion (April 14, 2006)
opinion (April 13, 2005)
Read the amended complaint (October 13, 2004)
Read press releases:
CIR press release (October 30, 2006)
CIR press release (April 18, 2006)
CIR press release (August 10, 2005)
CIR press release (September 29, 2004)
Read Idaho Statesman article about the case
The Muellers: Noah, Corissa, Taige, Eric and Von
Corissa Mueller had no reason to
expect that discussing her daughter's treatment with emergency room staff would lead to her infant's forcible seizure of by state child welfare officials.
Corissa and her husband both have degrees in engineering. After college, they went to Texas, where they worked for Motorola. Until Taige was seized by CPS, Corissa worked as a chemical engineer, while Eric completed an advanced engineering degree.
A few years ago they moved to Boise, which boasts its own concentration of high tech companies. Eric works for a computer chip manufacturer and Corissa raises their three children, Von, Taige, and a brother Noah, born July, 2008. As someone with a scientific background, Corissa is trained to gather information and make an objective decisions. Especially when it comes to her children.
August 12, 2002
Which is why she took Taige to the hospital in the first place. Taige had a low grade fever (100.8) and wasn't eating well. Though Corissa thought Taige probably was suffering the aftereffects of the same flu that recently had run through her family, she knew that an infant's immune system is not fully developed and that it was important to have expert medical care in case Taige had something more serious.
When she arrived at St. Luke's that night in August 2002, a physician recommended a variety of treatments -- from giving Taige fluids and a full blood test to administering antibiotics and a spinal tap.
Corissa carefully considered the benefits and risks of each of them. She understood the risk of brain damage, paralysis, and death from a spinal tap. She weighed that risk against the odds that Taige actually had meningitis -- which the doctor said was less than five percent. She listened to the doctor's cautionary advice that it's better to do a spinal tap sooner rather than later, as an infant's temperature can increase rapidly.
Corissa decided to give Taige fluids and do a full blood test. If the temperature came down and the blood test didn't turn up any problems, she reasoned that the spinal tap might not be necessary. The doctor agreed to this plan. And, thankfully, Taige's temperature did come down. Not only that, the blood tests came back "normal." So Corissa started to think that her hunch had been right, that it was just the flu after all. And since it was 1:30 am, she asked a nurse about taking Taige home.
Child protective services shows up
Unbeknownst to Corissa, her earlier conversation about deferring the spinal tap had triggered a call to child protective services.
OFFICER SNYDER: WELL, CALM DOWN. OKAY? LET'S TAKE THIS ONE STEP AT A TIME.
MRS. MUELLER: WHAT HAVE THEY DONE TO MY BABY?
OFFICER SNYDER: THEY'RE GONNA DO THE TESTS THAT THE DOCTOR SAID THEY WERE GONNA DO....
MRS. MUELLER: HOW CAN YOU DO THAT? LET ME CALL MY HUSBAND!
OFFICER SNYDER: MY OTHER CHOICE IS TO PUT YOU IN HANDCUFFS. WOULD YOU RATHER ME DO THAT?
Two Boise police officers and a CPS worker arrived and took custody of Taige. The police officers restrained Corissa (one on each arm) and took her down the hall while the doctor performed the spinal tap.
And even though they had never discussed it with Corissa, they gave Taige steroids to forestall the brain swelling that can occur as a consequence of removing spinal fluid from such a tiny child.
While this was going on, the police officers physically restrained Corissa, told her she couldn't use the telephone and finally asked her to leave the hospital.
But Corissa refused. Because she knew that Taige was allergic to formula and that her baby would soon need her mother in order to nurse. Forty eight hours after the state seized Taige, a judge sensibly returned her to her parent's custody.
Oh...send her home.
Though child protective services probably conjures up child abuse, what we have here is a case about a difference of opinion
between a conscientious mother and a aggressive doctor. To put it another way, the mother's "crime" was discussing her infant's treatment step by step and insisting on approving each procedure only when needed.
Tape recordings made by the police officers of their conversations that night reveal that both they and the CPS worker knew that there was no legal basis to take Taige from her mother. One officer says:
"...legally we would be violating her rights to do that....she's not doing anything to harm her child."
But, incredibly, they agreed to seize Taige anyway. The CPS worker explained to the officers how this could be accomplished:
"Well if nothing else, they could declare her and she could go to shelter care for two days and in that time she would be treated. And then in shelter care the judge can say 'Oh send her home.'"
You can read the full transcript here (.pdf))
So in this case, CPS workers and city police manipulated the rules in order to end discussion between the doctor and Corissa.
The tapes make clear that the CPS worker and the police officers all knew that what they were about to do would violate Corissa's legal rights. But they just went ahead and did it anyway.
http://www.cir-usa.org/cases/mueller_v_idaho.html
Sunday, March 7, 2010
NH State House Rally on March 10th at 8:30 am
FRIDAY, MARCH 5, 2010
State House Rally on March 10th at 8:30 am
If you've ever complained about state control and regulation of education in New Hampshire, this is finally your opportunity to do something! Support the right of parents to instruct their children without state interference and you will improve the quality of education throughout the state.
Parents are holding a rally before the State House on March 10th at 8:30 am in support of HB 1580 and the right of parents to educate their children as they see fit. We will welcome our representatives as they walk the gauntlet towards the State House, reminding them of a previous rally in January against proposed increases in regulation of parents. Hopefully, our representatives will finally realize that our battle for educational freedom will continue. . . until our rights are recognized.
With the passage of HB 1580 every public school will be motivated to be more responsive to the concerns of parents -- lest those parents freely remove their children. Cooperation will replace the current adversarial attitude which has plagued home schooling parents for twenty years and bogged down the entire system. Supporting parents means supporting local control of education.
Parents are encouraged to bring their children and friends to rally for freedom! Dress warmly. Bring a sign or banner to instruct your representatives to support educational freedom as they approach the State House to vote on this important bill.
CACR 29, asking for recognition of parental rights, dovetails nicely with HB 1580, asking for recognition of parental rights with respect to education. Parents may want to support both bills. Both bills are scheduled to be voted upon during the same House session.
We're hoping to have a few speakers at the rally, including the sponsors of both bills. Afterwards, we can watch the House deliberate from the upstairs balcony of Representatives Hall.
These are our representatives. Be sure to let them know what parents want!
http://nhparentsfirst.blogspot.com/2010/03/state-house-rally-on-march-10th-at-830.html
State House Rally on March 10th at 8:30 am
If you've ever complained about state control and regulation of education in New Hampshire, this is finally your opportunity to do something! Support the right of parents to instruct their children without state interference and you will improve the quality of education throughout the state.
Parents are holding a rally before the State House on March 10th at 8:30 am in support of HB 1580 and the right of parents to educate their children as they see fit. We will welcome our representatives as they walk the gauntlet towards the State House, reminding them of a previous rally in January against proposed increases in regulation of parents. Hopefully, our representatives will finally realize that our battle for educational freedom will continue. . . until our rights are recognized.
With the passage of HB 1580 every public school will be motivated to be more responsive to the concerns of parents -- lest those parents freely remove their children. Cooperation will replace the current adversarial attitude which has plagued home schooling parents for twenty years and bogged down the entire system. Supporting parents means supporting local control of education.
Parents are encouraged to bring their children and friends to rally for freedom! Dress warmly. Bring a sign or banner to instruct your representatives to support educational freedom as they approach the State House to vote on this important bill.
CACR 29, asking for recognition of parental rights, dovetails nicely with HB 1580, asking for recognition of parental rights with respect to education. Parents may want to support both bills. Both bills are scheduled to be voted upon during the same House session.
We're hoping to have a few speakers at the rally, including the sponsors of both bills. Afterwards, we can watch the House deliberate from the upstairs balcony of Representatives Hall.
These are our representatives. Be sure to let them know what parents want!
http://nhparentsfirst.blogspot.com/2010/03/state-house-rally-on-march-10th-at-830.html
Nathaniel Craver's death prompts look at safeguards within Pennsylvania, county inspection systems
Nathaniel Craver's death prompts look at safeguards within Pennsylvania, county inspection systems
By LARA BRENCKLE, The Patriot-News
March 06, 2010, 9:52PM
Provided, The Patriot-News
Nathaniel Craver, left, and his twin sister, Elizabeth, were adopted from Russia by Nanette and Michael Craver in 2003. The Cravers are charged with killing Nathaniel, who died August 25, 2009, at age 7.
When authorities say a child died at the hands of people who are supposed to love him, the first question everyone asks is why.
How, people ask, did schools, social services, neighbors and family members miss the clues that might have saved a child’s life?
In 7-year-old Nathaniel Craver’s case, these questions are being asked from Harrisburg to Russia, where Michael and Nanette Craver of Carroll Twp. traveled to adopt the boy and his twin sister.
At every instance since the 2003 adoption, the Cravers passed through hurdles intended to protect children, including repeated inspections by the adoption agency and a later investigation by York County Children and Youth.
In spite of those checks, when Nathaniel died Aug. 25, after spending several days on life support, he had more than 80 external injuries, court documents state. More than 20 were to his head. His brain was softened, and the child was emaciated.
Many times, school officials act as a safety net to spot abuse.
But Pennsylvania is one of only two states to not require school attendance until age 8. That’s also the threshold where parents who home-school — as the Cravers opted to do — are reviewed by state evaluators.
Michael Craver, 45, and Nanette Craver, 54, are charged with homicide, conspiracy and child endangerment in Nathaniel’s death. The couple are in the York County Prison, and court records indicate they do not have a lawyer.
The circumstances surrounding Nathaniel’s death will likely have ripples beyond his parents’ criminal trial and could lead to changes in how Pennsylvania safeguards children.
Reviewing safeguards
Nathaniel’s death has outraged the Russian media.
A Russian lawmaker is calling for a temporary suspension of adoptions by U.S. families because this case fits the pattern of more than a dozen others since the 1990s.
The case also has state and county child welfare officials assessing their procedures.
But the record shows the Cravers were subjected to repeated checks to see how they were caring for Nathaniel and his sister, Elizabeth.
The Cravers passed all the requirements for adoption. They include status checks by the adoption agency up to three years after the adoption was finalized, Russian news media have reported. Those checks are required by the Russian government. After three years, no follow-up is required.
State Rep. Scott Perry, R-Dillsburg, who represents Carroll Twp., called the case “a tragedy” but said the first step should be evaluating how orphanages that facilitate Russian adoptions are performing that task.
In 2006, after they were finished with the adoption agency checks, the Cravers were investigated by York County Children and Youth Services. The children were briefly removed from their custody.
They were returned and the case was closed because the family met all the terms for reunification, officials said.
Citing the emerging criminal case, Children and Youth officials have refused to release details about what prompted the investigation and what steps were taken before the agency cleared the Cravers from further scrutiny.
Court documents quote family members saying in the months before Nathaniel’s death that the boy’s eyes were swollen to slits, something his parents dismissed as his tendency to pluck at his face. The child seemed terrified of making a mistake and clung to the last person outside the family who saw him alive, family members told investigators.
Neighbors offered contrasting pictures. One portrayed Michael Craver as a family man who rode bikes and hiked with his children. Another expressed concern about the children’s weight and said the family was unfriendly.
Reviews in the Craver case are under way, said Cathy Utz, the director of policy and program development in the state Department of Public Welfare’s Office of Children, Youth and Families.
York County will submit its internal report to the department, detailing either lapses that allowed the death to occur or lessons that can be learned from it, Utz said. The state will respond and then begin its review of all fatal and near-fatal cases across Pennsylvania.
http://www.pennlive.com/midstate/index.ssf/2010/03/nathaniel_cravers_death_prompt.html
By LARA BRENCKLE, The Patriot-News
March 06, 2010, 9:52PM
Provided, The Patriot-News
Nathaniel Craver, left, and his twin sister, Elizabeth, were adopted from Russia by Nanette and Michael Craver in 2003. The Cravers are charged with killing Nathaniel, who died August 25, 2009, at age 7.
When authorities say a child died at the hands of people who are supposed to love him, the first question everyone asks is why.
How, people ask, did schools, social services, neighbors and family members miss the clues that might have saved a child’s life?
In 7-year-old Nathaniel Craver’s case, these questions are being asked from Harrisburg to Russia, where Michael and Nanette Craver of Carroll Twp. traveled to adopt the boy and his twin sister.
At every instance since the 2003 adoption, the Cravers passed through hurdles intended to protect children, including repeated inspections by the adoption agency and a later investigation by York County Children and Youth.
In spite of those checks, when Nathaniel died Aug. 25, after spending several days on life support, he had more than 80 external injuries, court documents state. More than 20 were to his head. His brain was softened, and the child was emaciated.
Many times, school officials act as a safety net to spot abuse.
But Pennsylvania is one of only two states to not require school attendance until age 8. That’s also the threshold where parents who home-school — as the Cravers opted to do — are reviewed by state evaluators.
Michael Craver, 45, and Nanette Craver, 54, are charged with homicide, conspiracy and child endangerment in Nathaniel’s death. The couple are in the York County Prison, and court records indicate they do not have a lawyer.
The circumstances surrounding Nathaniel’s death will likely have ripples beyond his parents’ criminal trial and could lead to changes in how Pennsylvania safeguards children.
Reviewing safeguards
Nathaniel’s death has outraged the Russian media.
A Russian lawmaker is calling for a temporary suspension of adoptions by U.S. families because this case fits the pattern of more than a dozen others since the 1990s.
The case also has state and county child welfare officials assessing their procedures.
But the record shows the Cravers were subjected to repeated checks to see how they were caring for Nathaniel and his sister, Elizabeth.
The Cravers passed all the requirements for adoption. They include status checks by the adoption agency up to three years after the adoption was finalized, Russian news media have reported. Those checks are required by the Russian government. After three years, no follow-up is required.
State Rep. Scott Perry, R-Dillsburg, who represents Carroll Twp., called the case “a tragedy” but said the first step should be evaluating how orphanages that facilitate Russian adoptions are performing that task.
In 2006, after they were finished with the adoption agency checks, the Cravers were investigated by York County Children and Youth Services. The children were briefly removed from their custody.
They were returned and the case was closed because the family met all the terms for reunification, officials said.
Citing the emerging criminal case, Children and Youth officials have refused to release details about what prompted the investigation and what steps were taken before the agency cleared the Cravers from further scrutiny.
Court documents quote family members saying in the months before Nathaniel’s death that the boy’s eyes were swollen to slits, something his parents dismissed as his tendency to pluck at his face. The child seemed terrified of making a mistake and clung to the last person outside the family who saw him alive, family members told investigators.
Neighbors offered contrasting pictures. One portrayed Michael Craver as a family man who rode bikes and hiked with his children. Another expressed concern about the children’s weight and said the family was unfriendly.
Reviews in the Craver case are under way, said Cathy Utz, the director of policy and program development in the state Department of Public Welfare’s Office of Children, Youth and Families.
York County will submit its internal report to the department, detailing either lapses that allowed the death to occur or lessons that can be learned from it, Utz said. The state will respond and then begin its review of all fatal and near-fatal cases across Pennsylvania.
http://www.pennlive.com/midstate/index.ssf/2010/03/nathaniel_cravers_death_prompt.html
Saturday, March 6, 2010
Witness tells of false reports by DCYF/CPS in Kelly death
Witness tells of false reports in Kelly death
By Nathan Gorenstein
Inquirer Staff Writer
Within hours of Danieal Kelly's death, officials at the social services company responsible for the 14-year-old girl's safety were rushing to produce backdated paperwork in an effort that apparently included forging the signature of the teen's mother on a form, according to testimony yesterday in federal court.
Written on the day of Kelly's death, Aug. 4, 2006, the document was an "encounter" form recording a home visit that had in fact occurred months earlier.
Kelly suffered from cerebral palsy and lived in a West Philadelphia household with seven siblings. She died, covered in bedsores, of starvation. Her family was under the supervision of the city's Department of Human Services, which subcontracted the work to now-defunct MultiEthnic Behavioral Health Inc.
After Kelly's death, nine MultiEthnic employees were charged with billing the city for services they never provided to her and other children, and with fabricating and destroying subpoenaed documents. Five have pleaded guilty, and four are on trial in U.S. District Court.
Yesterday, Christiana Nimpson, a former MultiEthnic caseworker, said she filled out the encounter form on the day of Kelly's death at the request of agency cofounder Mickal Kamuvaka - and that she left the "recipient signature" line blank.
Officials were rushing to complete required paperwork for the family's file, which DHS was demanding.
Nimpson said that after she completed the form, either Kamuvaka or Solomon Manamela, another supervisor, asked her also to sign the name of Kelly's mother, Andrea. Both supervisors are among the four on trial.
Nimpson said she refused, testifying, "I thought it wasn't right."
Under questioning from Assistant U.S. Attorney Bea Witzleben, Nimpson said she could not recall which of the supervisors made the request.
The form - bearing the signature Andrea Kelly - was entered into evidence. Defense attorneys did not challenge Nimpson's testimony, and exactly how the form came to be signed, and who signed it, was not answered.
Nimpson also said that on 10 occasions, Kamuvaka asked her to go through other caseworkers' files and fabricate missing reports. She said Manamela asked her to do the same thing five times in her four years with the agency.
Previous witnesses had testified that MultiEthnic managers worried that incomplete files would threaten the agency's contract with DHS.
To generate data for the forms, Nimpson said, she sometimes called families that were supposed to have been visited by other caseworkers. She also sometimes fabricated her own "progress notes" because she did not have time to make the required visits, she said.
Nimpson said she was paid about $28,000 a year, and, like other caseworkers who have testified, said she worked two or three jobs.
Nimpson said she did visit the Kelly household in late May or early June to teach Andrea Kelly parenting skills and was accompanied by the family's caseworker, Julius Juma Murray. Nimpson said she spoke to the mother on the porch and waited outside while Murray entered the home.
Andrea Kelly later received a 30-year prison sentence for her role in her daughter's death.
Contact staff writer Nathan Gorenstein at 215-854-4797 or ngorenstein@phillynews.com.
http://www.philly.com/philly/news/20100210_Witness_tells_of_false_reports_in_Kelly_death.html
By Nathan Gorenstein
Inquirer Staff Writer
Within hours of Danieal Kelly's death, officials at the social services company responsible for the 14-year-old girl's safety were rushing to produce backdated paperwork in an effort that apparently included forging the signature of the teen's mother on a form, according to testimony yesterday in federal court.
Written on the day of Kelly's death, Aug. 4, 2006, the document was an "encounter" form recording a home visit that had in fact occurred months earlier.
Kelly suffered from cerebral palsy and lived in a West Philadelphia household with seven siblings. She died, covered in bedsores, of starvation. Her family was under the supervision of the city's Department of Human Services, which subcontracted the work to now-defunct MultiEthnic Behavioral Health Inc.
After Kelly's death, nine MultiEthnic employees were charged with billing the city for services they never provided to her and other children, and with fabricating and destroying subpoenaed documents. Five have pleaded guilty, and four are on trial in U.S. District Court.
Yesterday, Christiana Nimpson, a former MultiEthnic caseworker, said she filled out the encounter form on the day of Kelly's death at the request of agency cofounder Mickal Kamuvaka - and that she left the "recipient signature" line blank.
Officials were rushing to complete required paperwork for the family's file, which DHS was demanding.
Nimpson said that after she completed the form, either Kamuvaka or Solomon Manamela, another supervisor, asked her also to sign the name of Kelly's mother, Andrea. Both supervisors are among the four on trial.
Nimpson said she refused, testifying, "I thought it wasn't right."
Under questioning from Assistant U.S. Attorney Bea Witzleben, Nimpson said she could not recall which of the supervisors made the request.
The form - bearing the signature Andrea Kelly - was entered into evidence. Defense attorneys did not challenge Nimpson's testimony, and exactly how the form came to be signed, and who signed it, was not answered.
Nimpson also said that on 10 occasions, Kamuvaka asked her to go through other caseworkers' files and fabricate missing reports. She said Manamela asked her to do the same thing five times in her four years with the agency.
Previous witnesses had testified that MultiEthnic managers worried that incomplete files would threaten the agency's contract with DHS.
To generate data for the forms, Nimpson said, she sometimes called families that were supposed to have been visited by other caseworkers. She also sometimes fabricated her own "progress notes" because she did not have time to make the required visits, she said.
Nimpson said she was paid about $28,000 a year, and, like other caseworkers who have testified, said she worked two or three jobs.
Nimpson said she did visit the Kelly household in late May or early June to teach Andrea Kelly parenting skills and was accompanied by the family's caseworker, Julius Juma Murray. Nimpson said she spoke to the mother on the porch and waited outside while Murray entered the home.
Andrea Kelly later received a 30-year prison sentence for her role in her daughter's death.
Contact staff writer Nathan Gorenstein at 215-854-4797 or ngorenstein@phillynews.com.
http://www.philly.com/philly/news/20100210_Witness_tells_of_false_reports_in_Kelly_death.html
Utah Continues Reckless Efforts to Lock-Up Pregnant Women
Lynn M. PaltrowFounder and Executive Director of National Advocates for Pregnant Women
Posted: March 6, 2010 01:31 PM
Utah Continues Reckless Efforts to Lock-Up Pregnant Women
What's Your Reaction:
On Thursday, a Utah legislator withdrew a bill that would allow sentences of up to life in prison for a woman who experiences a miscarriage or stillbirth as a result of her "reckless" behavior. This move has been attributed to a "firestorm" of opposition. Almost immediately, however, Utah legislators revised the bill to exempt women who commit reckless acts but permit the prosecution of women who commit "knowing" acts that may result in stillbirths and miscarriages from the earliest stages of pregnancy.
What does this mean? Under this bill, pregnant women who "know" that their cancer medications or other prescription medications could risk harm or cause pregnancy loss could still be arrested. Pregnant women who stay with abusive husbands who they "know" to be angry about the pregnancy could still be arrested under this law. Pregnant women who continue working in jobs they "know" pose hazards to their pregnancies could still be arrested under the law. And even pregnant women who "know", from reading the side of their cigarette packages, that smoking is hazardous to their pregnancies could be arrested under this law.
Representative Wimmer, the bill's sponsor, has assured critics that the bill would only be applied "in the most glaring of cases." But whatever his intention, cases from around the country demonstrate that once law enforcement officials have the discretion to arrest, and judges have the opportunity to interpret the law, legislators no longer have control. In fact there have already been cases where government officials seeking to protect the "unborn" have sought to keep pregnant women from obtaining cancer treatment.
Moreover, sending the message that what women "know" and do while pregnant may be a crime also influences how doctors and nurses treat pregnant women. They become less likely to help women and more likely to judge them. In Iowa, it was a health care provider who called the police when a distraught pregnant woman sought help after she fell down a flight of stairs. The young woman was arrested for "attempted feticide." The police eventually withdrew the charge, but only after this young mother had been taken into custody, spent several days in jail and several weeks terrified about what was going to happen next.
If the Utah bill becomes law, a pregnant woman whose health care provider reports her to the police will not be comforted by the fact that, eventually, someone might decide that her actions were merely "reckless" and not "knowing."
Some supporters of the bill would claim that this bill is really just about punishing women who intentionally seek to "self-abort." For people who profoundly oppose abortion, it seems logical that legislation could be carefully crafted to distinguish between pregnant women who seek to terminate their pregnancies and those who do not. Criminal laws, however, depend on application of intent standards and are enforced by police officers and prosecutors who have extraordinary discretion in deciding who will and will not be arrested. Because everything a pregnant woman does or does not do can affect pregnancy outcome, it is hard to come up with an example of a law that could be applied only to women who "truly" intend to end their pregnancies while ensuring that pregnant women who do not intend to terminate their pregnancies or risk harm to their fetuses are protected from police investigation, interrogation, arrest, and prosecution.
Even if this Utah bill were carefully crafted (and it is not), its main purpose clearly is not to advance a culture of life, but rather to advance laws that permit imprisonment of pregnant women. The description of the bill explains its purpose as removing "prohibitions against prosecution" of women. In other words--Utah apparently aspires to be the first state to admit that the purpose of an anti-abortion law is not to stop doctors from performing abortions, but to lock up women who have them.
In fact, this bill was created out of frustration that no law existed that could be used to imprison a 17-year-old girl. According to its sponsor, Utah's HB 462 was passed to respond to a case in which a desperate a pregnant teenager hired someone to attack her and cause her to lose the pregnancy. It should be clear, however, that any young woman who is desperate enough to invite violence against her--violence that could have caused her own death--is not going to be deterred by this law.
Imprisoning this teenager, who survived and gave birth to a healthy baby, would have cost taxpayers approximately $30,000 a year. If the real purpose of the law were to prevent this kind of thing from happening again, the state could invest, for example, in Backline, an organization that could provide non-judgmental counseling to women struggling with their pregnancies.
The real purpose of the Utah bill, however, is to make it possible to police pregnant women and to imprison them as murderers. That deserves a firestorm of opposition as well.
http://www.bumperart.com/Anti+-+Child+Abuse.htm
Posted: March 6, 2010 01:31 PM
Utah Continues Reckless Efforts to Lock-Up Pregnant Women
What's Your Reaction:
On Thursday, a Utah legislator withdrew a bill that would allow sentences of up to life in prison for a woman who experiences a miscarriage or stillbirth as a result of her "reckless" behavior. This move has been attributed to a "firestorm" of opposition. Almost immediately, however, Utah legislators revised the bill to exempt women who commit reckless acts but permit the prosecution of women who commit "knowing" acts that may result in stillbirths and miscarriages from the earliest stages of pregnancy.
What does this mean? Under this bill, pregnant women who "know" that their cancer medications or other prescription medications could risk harm or cause pregnancy loss could still be arrested. Pregnant women who stay with abusive husbands who they "know" to be angry about the pregnancy could still be arrested under this law. Pregnant women who continue working in jobs they "know" pose hazards to their pregnancies could still be arrested under the law. And even pregnant women who "know", from reading the side of their cigarette packages, that smoking is hazardous to their pregnancies could be arrested under this law.
Representative Wimmer, the bill's sponsor, has assured critics that the bill would only be applied "in the most glaring of cases." But whatever his intention, cases from around the country demonstrate that once law enforcement officials have the discretion to arrest, and judges have the opportunity to interpret the law, legislators no longer have control. In fact there have already been cases where government officials seeking to protect the "unborn" have sought to keep pregnant women from obtaining cancer treatment.
Moreover, sending the message that what women "know" and do while pregnant may be a crime also influences how doctors and nurses treat pregnant women. They become less likely to help women and more likely to judge them. In Iowa, it was a health care provider who called the police when a distraught pregnant woman sought help after she fell down a flight of stairs. The young woman was arrested for "attempted feticide." The police eventually withdrew the charge, but only after this young mother had been taken into custody, spent several days in jail and several weeks terrified about what was going to happen next.
If the Utah bill becomes law, a pregnant woman whose health care provider reports her to the police will not be comforted by the fact that, eventually, someone might decide that her actions were merely "reckless" and not "knowing."
Some supporters of the bill would claim that this bill is really just about punishing women who intentionally seek to "self-abort." For people who profoundly oppose abortion, it seems logical that legislation could be carefully crafted to distinguish between pregnant women who seek to terminate their pregnancies and those who do not. Criminal laws, however, depend on application of intent standards and are enforced by police officers and prosecutors who have extraordinary discretion in deciding who will and will not be arrested. Because everything a pregnant woman does or does not do can affect pregnancy outcome, it is hard to come up with an example of a law that could be applied only to women who "truly" intend to end their pregnancies while ensuring that pregnant women who do not intend to terminate their pregnancies or risk harm to their fetuses are protected from police investigation, interrogation, arrest, and prosecution.
Even if this Utah bill were carefully crafted (and it is not), its main purpose clearly is not to advance a culture of life, but rather to advance laws that permit imprisonment of pregnant women. The description of the bill explains its purpose as removing "prohibitions against prosecution" of women. In other words--Utah apparently aspires to be the first state to admit that the purpose of an anti-abortion law is not to stop doctors from performing abortions, but to lock up women who have them.
In fact, this bill was created out of frustration that no law existed that could be used to imprison a 17-year-old girl. According to its sponsor, Utah's HB 462 was passed to respond to a case in which a desperate a pregnant teenager hired someone to attack her and cause her to lose the pregnancy. It should be clear, however, that any young woman who is desperate enough to invite violence against her--violence that could have caused her own death--is not going to be deterred by this law.
Imprisoning this teenager, who survived and gave birth to a healthy baby, would have cost taxpayers approximately $30,000 a year. If the real purpose of the law were to prevent this kind of thing from happening again, the state could invest, for example, in Backline, an organization that could provide non-judgmental counseling to women struggling with their pregnancies.
The real purpose of the Utah bill, however, is to make it possible to police pregnant women and to imprison them as murderers. That deserves a firestorm of opposition as well.
http://www.bumperart.com/Anti+-+Child+Abuse.htm
Subscribe to:
Comments (Atom)