Masha's Story - The Reaction Continues

Disney World Girl

Disney World Girl, earlier known as Internet Girl or Internet Porn Girl, is the term originally used for a young girl named Masha who appeared in over 200 sexually explicit images, usually under the name "vicky," that circulated for several years among pedophiles on the Internet. Police feared she was still being abused in the manner depicted.

From Wikipedia, the free encyclopedia - read the full post here . . .

From Marly Greiner's EXCELLENT blog:

It's All About Me! A PAP Response to Masha

Masha Update

Masha Testifies Before Congress: "No one from any of the adoption agencies ever came to check on me"

Pound Pup's Demons in Adoption Awards

Ethics and Accountability Conference: Meet and Greet the Bloggers

From Desiriee and Usha Smolin's EXCELLENT blog:

Masha Allen Congressional Transcripts Available

From Mirah Riben's EXCELLENT blog:

CALL FOR ACTION: Help Masha Allen - Stop Additional Abuse!

From Baby Love Child's EXCELLENT blog:

Masha

From Law Professor David Smolin:

Child Laundering as Exploitation: Applying Anti-Trafficking Norms to Intercountry Adoption under the coming Hague Regime

Masha's Story Reaction

MASHA SPEAKS--THE ADOPTION INDUSTRY BUNKERS IN: "DISNEY WORLD GIRL" AND THE SHAME OF COMPLICITY

Holy Who's Your Daddy! Should we be surprised that the National Council for Adoption--or at least its member agencies and adoptocrat friends in high places--have spearheaded a campaign to censor the scheduled December 1 ABC Primetime feature on the Russian adoptee known as "Disney World Girl" who was grossly sexually abused by her "forever father"?

From The Daily Bastardette - read the full post here . . .

Masha’s Story

Tomorrow night an extraordinary and unprecedented story will air on ABC Primetime about my client, a Russian orphan girl who was adopted by an American pedophile.

When millionaire Matthew A. Mancuso adopted five year old Masha from a Russian orphanage, she had already lived a tragic life. Stabbed by her drunken mother at age three, Masha hoped for a better life in the United States. Instead she was sent to live near Pittsburgh with a pedophile who had a long history of abusing young girls. During the next five years, Mancuso sexually assaulted Masha almost daily while slowly starving her to keep her body thin and childlike. Some of the abuse was photographed, both at their home in Plum Borough and at Disney World. Mancuso traded many of these hard core images on the internet which is how the FBI caught him and rescued Masha.

The ABC Primetime report chronicles Masha’s adoption from a small industrial city in the south of Russia to her new home in the outskirts of Pittsburgh and questions many events that could have stopped the depraved abuse, including why no one from the adoption agency ever visited Masha in her new home and why Mancuso’s ex-wife and grown daughter were never interviewed about his past. The later could have exposed the claims of his biological daughter that she, too, was sexually abused as a child.

Masha, who was adopted by another family, says she is speaking out now at the age of 13 “because I think that it’s wrong what he did. And this is happening so often now. And a lot of times nobody ever tells anybody. Some kids just give up. And they don’t have any faith.”

Recently Mancuso was sentenced to a minimum of 35 years in prison on top of 15 years from a federal conviction. He could face more time in Florida, including the death penalty, for the crimes he committed in a Disney World hotel room.

During the past month there was an organized effort by the international adoption phalanx to silence this story, and to deny and cover up the actions of the agencies which facilitated this adoption and Masha’s abuse. These “Cowards in Adoption” despise the truth, dismiss the victim and defend their entrenched pecuniary interests. Tomorrow they will start answering, both in the court of public opinion and ultimately in a court of law, for their reprobate acts, careless omissions and willful ignorance.

Tomorrow night’s shocking account is simply the first chapter of Masha’s unimaginable story.

Child Trafficking and International Adoption

Following the recent devastating earthquake, and concerned about the potential for child trafficking, Pakistan’s Prime Minister Shaukat Aziz ordered that all earthquake orphans be registered and taken into government care. None of them would be put up for adoption.

In a grotesque way, international child trafficking and international adoption seem to have much in common, but one is an evil disease and the other is a welcome cure. The legitimate international adoption system may, in rare instances, be the vehicle through which trafficking takes place. Despite our best efforts to safeguard the system, the child traffickers, like criminals everywhere, will use legitimate channels to accomplish their ends. Because they are sometimes successful, does this mean we should shut down international adoptions? Certainly not.

Child trafficking is an affront to any definition of human rights. According to UNICEF, approximately 1.2 million children are trafficked every year. The International Labor Organization believes that 12.3 million people are enslaved in forced labor, bonded labor, forced child labor, sexual servitude, and involuntary servitude at any given time.

A recent UNICEF report catalogs trafficking information from 53 African countries. It analyzes “the patterns, root causes, and existing national and regional policy responses and effective practices.” It concludes that trafficking occurs when “a child's protective environment collapses from such things as conflict, economic hardship, and discrimination.” These same explanations justify why international adoptions are so necessary!

When an unwanted child anywhere in the world is spared a devastating, neglected life, the well intentioned adoptive parents, no matter where they reside, are doing an act of great love and kindness. Let’s continue to do our part in helping legitimate adoptive parents and agencies provide a loving home to a lonely child.

Guest commentary by

Daniel Pollack, MSW, JD

Professor at Yeshiva University’s School of Social Work in NYC

Senior Fellow, Center for Adoption Research,

University of Massachusetts Medical School

Dan can be contacted at (212) 960-0836

Individual Liability of Social Work Supervisors

Supervisors are often named as defendants in lawsuits even though they have no direct involvement in the event itself. Individuals alleging discrimination or other wrongful behavior in the workplace frequently sue both the agency and their supervisors. Such allegations may be made because plaintiffs seek to impute the supervisors’ actions to the agency. Notwithstanding such allegations, claims may also be made against supervisors in their individual capacities.

Some state and federal laws prohibit plaintiffs from suing their supervisor in their individual capacity. In other circumstances, personal liability is a realistic result. For instance, there are numerous federal statutes barring discrimination and other wrongful actions against individuals in the employment context: the Americans with Disabilities Act of 1990 ("ADA"); Title VII of the Civil Rights Act of 1964 ("Title VII"); the Age Discrimination in Employment Act of 1967 ("ADEA"); the Fair Labor Standards Act of 1938 (the "FLSA"); and the Family Medical Leave Act of 1993 (the "FMLA").

Each state has similar legislation – and this just covers the area of employment discrimination! Other statues address defamation (slander and libel), intentional infliction of emotional distress, and intentional interference with contractual relations.

A number of federal and state courts have held that certain conduct will support claims against human services defendants in their individual capacity. However, they have struggled, and differ, over the exact parameters of the covered conduct. Still very much undecided is the nature of action or inaction which will form a basis for such liability. Some of these decisions have explored the exact reach of the statute, while others have merely decided the matter with little or no discussion.

Consequently, you should take appropriate steps to protect yourself from personal liability and to help your fellow supervisors in your agency do the same.

No matter how careful you are lawsuits can be brought against even the most vigilant supervisor. There are certain steps to avoid or limit your liability. Of prime importance is to understand the different kinds of claims that can be brought, and avoid behavior which may be fertile ground for filing a lawsuit. You don't have to spend thousands of dollars to take the following preventive measures:

1. Listen to your conscience. Be mindful of your own actions and those of your supervisees. Even if you are personally blameless in a moral sense, your oversight of what occurs around you and under your supervision may, at a future time, be alleged as the basis for your liability.

2. Adhere to your policies. Do you need clarifications or interpretations of your agency’s policies? Do you in fact have a policy manual? The failure to have written policies is an open invitation to the allegation that no policy existed or that the policy was different than you claim. You may need to approach your supervisor or counsel to confirm or even formulate written policy on important matters.

3. Stay updated. State and federal laws change daily. Policies that were legal or “best practice” one month may later subject you to claims of personal liability.

4. Consult with your supervisor, agency attorney, and colleagues. Doing so will confirm that you did not act in a unilateral, impulsive way.

5. Keep records. As a supervisor, you should keep written documentation pertaining to all major decisions and the reasons for those actions. In the event a lawsuit is initiated, it may not be resolved for years. Consequently, you may need to refer back to these records. Make sure your documents are detailed and complete.

6. Stay cool. If you are sued, immediately seek legal counsel. This person may not be the same as the counsel for the agency. Continue to communicate with your counsel after your initial contacts. Update your attorney on developments as they occur.

There are many potential defenses to individual liability. Among others, they include:

Contributory Negligence -- this is where you can show that the plaintiff was also negligent, and contributed to their own injury or damage.

Comparative Negligence -- this is when the court decides on a percentage split (say 60-40) in terms of who is negligent. This defense tends to mitigate, or reduce the size of the monetary award.

Assumption of Risk -- this is when the court decides that the plaintiff engaged in behaviors that assumed the risk of damages or injuries, and cannot expect to sue the human service agency to recover.

Good faith, Absolute or Qualified Immunity -- this is a defense covering duties of a discretionary nature.

In human services, the doctrine of individual liability is clearly expanding in some jurisdictions. It’s still an exclusive club, but you don’t want to become a member!

This commentary originally appeared in Policy & Practice,

(September, 2005), 63 (3), 26.

Guest commentary by

Daniel Pollack, MSW, JD

Professor at Yeshiva University’s School of Social Work in NYC and

Senior Fellow, Center for Adoption Research,

University of Massachusetts Medical School

Dan can be contacted at (212) 960-0836.

Lost in America

A young adopted Russian girl who appeared in a series of sexually explicit pictures taken at a Walt Disney World hotel was found and is now safe. Thirteen other Russian children adopted by American families over the past few years are not. They are dead. Though their numbers are small compared with the overall number of Russian Children adopted by Americans, the prevalence of their deaths within this sub-population of children, all due to child maltreatment by their adopted parent, is much higher than that for child abuse fatalities in the general American population.

The Russian government, outraged by these deaths, is considering taking strong measures, including closing down foreign adoptions. What makes this issue even more troublesome is that the fatalities befallen Russian children adopted by foreigners have overwhelmingly been at the hands of American adopters. From America’s viewpoint, these child abuse fatalities represent only about two of the 1400 annual child abuse fatalities occurring in the United States, and two out of more than 900,000 confirmed cases of child maltreatment occurring each year. From the Russian viewpoint, these are thirteen of approximately 43,000 children adopted by American parents since 1991.

What remains unknown is how many adopted Russian children experience non-fatal abuse or neglect by their American adopters each year. Russian officials estimate that 90% of children adopted by foreigners live happy lives with their adopted parents. Of the remaining 10%, most issues are resolved in time. But there is no real way to track data on the number of Russian adoptees experiencing child maltreatment as state child welfare information systems are unlikely to capture information necessary to make such an estimate.

In general, 643 times as many children are maltreated each year as die from maltreatment. However, it seems unlikely that as many as 1,300 of the approximately 6,000 adopted Russian children entering the United States each year would be maltreated. Still, one has no way of knowing.

On the Russian side, the government has made a considerable effort to curb abuses in the adoption system. Unlicensed and unaccredited agencies have been denied operation in Russia. Efforts are underway to limit the involvement of “facilitators,” persons acting independently in Russia to facilitate adoptions. Still, the foreign adoption of Russian children is a multi-million dollar industry, with a considerable amount of money spent on bribes given to Russian officials and others to aid the arrangement of adoptions.

On the American side, the United States has yet to fully implement the Hague convention. Among its provisions is a national accrediting body for adoption agencies handling foreign adoptions. This still has not happened. Nor has the U.S. State Department issued final regulations pertaining to international adoptions.

There are no national standards for homestudies or parent preparation. Parents in Arizona may adopt through an agency in Ohio, limiting the agency’s direct contact with the family and its ability to monitor and support the placement following the return of the parents and child from Russia.

The homestudy might have been conducted by a contracted individual with limited knowledge of the issues the family will face in adopting a Russian child. As a simple but poignant example one adoptive couple spoke no Russian. While in Russia they communicated with the child through an interpreter. It is unknown how they communicated once back in America.

Under the provisions of legislation passed in 2000, children adopted abroad become U.S. citizens as soon as they enter the country. The adoptions of Russian children are finalized in Russia. There may be limited direct contact between the adoptive family and the child prior to finalization of the adoption. Consequently, there is really no significant pre-finalization period between when the parents meet the child in Russia and when the adoption is finalized.

Under Russian rules, children are considered under their control for four years following their adoption and remain Russian citizens until they are eighteen. However, these rules have no legal meaning in the U.S. as adoptive families can easily ignore attempts to monitor the welfare of the child.

There are limited levers within the U.S. legal system for the State Department to control this situation. Child welfare is generally under the legislative authority of the states. Local police can easily refuse to provide the State Department with information about an incident involving an adopted Russian child.

The abuses in the inter-country adoption system between the U.S. and Russia are widely discussed. They involve outright misrepresentation of children’s medical histories, use of forged or fraudulent documents by prospective adopters, bribes, and U.S. agencies leaving critical mental health history and other relevant background information out of homestudies in order to improve chances of a “successful” adoption.

In the United States success may be defined as the couple receiving a child and the agency collecting a large fee. The incentives are powerful on both sides as millions of dollars are involved. If one estimates fees to average $30,000 then American adopters may have paid an estimated $1.29 billion since 1991 to adopt Russian children. With such money involved, it is easy to see how Russian families willing to adopt might be passed over for more “lucrative” arrangements.

Russian authorities are considering a number of changes ranging from required psychological testing for prospective adoptive parents to new required preparation programs. They may also place more stringent requirements on adoption agencies operating in Russia. It seems unlikely that psychological testing will reveal prospective adoptive parents likely to murder a child with any degree of accuracy. If so, such tests would already be in use. Further, such measures are likely to raise the costs parents now pay along with providing no additional benefit.

A standardized preparation program could produce benefits by educating parents as to the needs and characteristics of Russian children available for adoption. Though there is scant research evidence to support it, many in the U.S. believe that such programs have improved outcomes for families adopting special needs children.

But a disturbing reality remains. Nearly all the child abuse fatalities involving Russian children adopted by foreigners have occurred in the U.S. Romania shut down international adoption due to abuses in the system. Russia may do the same. This would be a tragedy for thousands of Russian children who will not be adopted domestically and currently have no realistic alternative for permanency.

The extent of abuses is not limited to actions within Russia. American adoption agencies, with so much money on the line, have also committed abuses. One can expect such when children are commoditized, a fact that should not be lost on the domestic child welfare system in the U.S.

It seems unlikely that the State Department will ever have the infrastructure necessary to adequately monitor international adoptions. It also seems unlikely that states will initiate greater control over international adoption agencies operating within the state and responsible for bringing children with significant special needs into the state who may place additional demands the state’s human service agencies.

Until someone in the U.S. stands up to face this issue, the future of some Russian children will become lost in America.

Guest Commentary by

Thomas Morton

President and CEO

Child Welfare Institute

Financial Accountability of Human Services Agencies

“Government Is Criticized On Oversight of Head Start,” March 18, 2005, New York Times

“D.C.'s Anti-Poverty Agency Is Under Federal Scrutiny;

Possible Fiscal Irregularities Questioned,” March 24, 2004, Washington Post

“Ethics Charges Filed Against Top Officials Of Nassau Health Unit”, April 24, 2003, New York Times

Three different headlines, but they all tell the same story -- supporting the functioning of human services organizations is a financial challenge. The work of these agencies, coupled with limited money, results in a pressing need for close attention to financial management. Frequent newspaper accounts of financial irregularities underscore the increasing call for accountability. The public wants to know, and feels it has the right to know just how and where public money is spent.

In order to guard against distortion of an agency’s true financial health and to achieve credibility with clients, donors, lawmakers, and the public, every human services agency must be financially accountable. Financial accountability is as much a legal concern as it is a fiscal concern. How can we tell if a human services agency is being run in a financially accountable way? Here are 12 questions agency administrators should ask themselves:

1. Who is the one person responsible for managing the accountability structure of each of the agency’s units?

2. Who is the one person responsible for ensuring that the structure clearly defines all areas of responsibility?

3. Is there one person who can delegate financial management tasks within each unit?

4. Are all of the tasks of each of the agency’s units clearly defined and assigned to qualified people?

5. Does any worker have any conflicting duties?

6. In terms of being financially accountable, does everyone fully understand what is expected of them?

7. Do workers know who to contact if certain accounting problems arise?

8. Does each person have sufficient training to complete their assigned tasks?

9. Does each person have the knowledge and experience to make sound financial judgments concerning each task they are assigned?

10. Whose job is it to ensure that there is a reasonable distribution of work in accordance with the available resources?

11. Who is responsible for keeping current records of various aspects of the agency’s financial accountability?

12. Who monitors, in a systematic fashion, the financial accountability structure?

If an administrator has difficulty answering any of these questions, perhaps some fundamental guidelines would be helpful. In order to ensure financial accountability an agency should, at a minimum:

A. operate in accordance with an annual budget that has been approved before the beginning of each fiscal year;

B. maintain financial reports on a quarterly basis. These records should compare actual expenses to budgeted revenues;

C. have an annual audit by an independent Certified Public Accountant;

D. allow clients and employees to have a confidential mechanism to report suspected financial abuse to a neutral third party;

E. have a written procedure and financial manual that is periodically updated;

F. ensure that all documents are signed by a legally authorized employee so that payments and invoices can be processed in a timely way;

G. maintain appropriate liability insurance;

H. maintain a risk management program.

A number of disturbing trends are occurring simultaneously: litigation against human services agencies seems to be on the rise; much of this litigation has been in the form of class action lawsuits; the cost to defend against or settle these lawsuits is mounting. Maintaining a vigilant program of internal financial accountability will help an agency to weather this trend. Management needs to be keenly aware that financial responsibility must be taken seriously if scarce resources are to stretch to their maximum. And, they must be relentless in minimizing costs to simplify procedures and increase efficiencies. We all admit that it is challenging to remain optimistic amid such scary headlines, but there are many of us who have a vital and core belief that there are opportunities now to build human service organizations which can truly be accountable, in every sense of the word.

Responsibility and accountability are the fundamental building blocks of human services agencies; without them, we cannot continue to function.

This commentary originally appeared in Policy & Practice, (June, 2005), 63 (2), 24.

Guest commentary by

Daniel Pollack, MSW, JD

Professor at Yeshiva University’s School of Social Work in NYC

Senior Fellow, Center for Adoption Research,

University of Massachusetts Medical School

Dan can be contacted at (212) 960-0836

Ethnic Cleansing in America

Americans don’t have to travel to Bosnia, South Africa or the West Bank to appreciate the legacy of ethnic cleansing, apartheid or aboriginal territorial disputes. Those injustices can be found right here at home in New York state. Yesterday, with barely any notice, the United States Supreme Court ruled that land recently purchased by Oneida Indians for economic development on the long recognized Oneida reservation can never again become sovereign Indian land. Invoking high minded but ultimately hollow legal principles like “laches, acquiescence, and impossibility,” the Court found that the national government’s indifference, the great increase in property values, the predominantly non-Indian population now residing in the area, the impracticability and disruptive practical consequences of returning land to Indian control, the burden on the administration of state and local governments and the adverse affect on neighboring land owners justified stripping the few remaining Oneidas of tribal sovereignty over their land. At the founding of the United States, the Oneida's homeland comprised some six million acres in what is now central New York. By 1920, only 32 acres continued to be held by the Oneidas. The Supreme Court’s current justification for “wrongs which occurred during the early years of the Republic” provide little rectitude for a nation dedicated to righting many of the historical wrongs around the world.

Social Workers and the Fourth Amendment

It should come as no surprise that social workers and other child welfare workers are covered by the Fourth Amendment to the United States Constitution. What might be surprising is that the most conservative federal district courts are taking the lead in defining this new and rapidly evolving constitutional mandate, most notably the Tenth Circuit Court of Appeals (covering Wyoming, Utah, Colorado, New Mexico, Oklahoma and Kansas).

Applicable to the states through the Fourteenth Amendment's Due Process Clause, the Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." Because the Amendment focuses on safeguarding persons from unwarranted intrusion, and not on regulating the behavior of particular governmental actors, the prohibition against unreasonable seizures extends to civil, as well as criminal, investigations by the government.

In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), the Tenth Circuit Court of Appeals held that there is no social worker exception to the Fourth Amendment. In Dubbs, eight pre-school children enrolled in the Head Start program were subjected to intrusive physical examinations, including genital examinations and blood tests, on school premises without parental notice or consent.

Also in 2003, the Seventh Circuit Court of Appeals, in Doe v. Heck, 327 F.3d 492 (7th Cir. 2003), held that the strictures of the Fourth Amendment apply to child welfare workers, as well as all other governmental employees. In that case, a private Christian elementary school and a student's parents sued several child welfare caseworkers under the Fourth and Fourteenth Amendments after the caseworkers interviewed a student about corporal punishment without a warrant or the consent of the school or parents.

A Fourth Amendment analysis is based on the totality of the circumstances in determining whether a reasonable person would have believed that he was not free to terminate an encounter with government. Some of the factors considered include:

1) the threatening presence of several officials;
2) the brandishing of a weapon by an official;
3) some physical touching by an official;
4) use of aggressive language or tone of voice indicating that compliance with an official's request is
compulsory;
5) prolonged retention of a person's personal effects;
6) a request to accompany the official to the station;
7) interaction in a nonpublic place or a small, enclosed place;
8) and absence of other members of the public.

In the Tenth Circuit Court of Appeal's most recent decision issued last week, Jones v. Hunt, 2005 WL 1395095 (10th Cir. 2005), the court analyzed a sixteen year old girl's encounter with child welfare social workers "through the eyes of a reasonable sixteen year old" child.

After concluding that the alleged encounter constituted a seizure, the court then reviewed whether the seizure was reasonable which depends on the context in which it took place. With limited exceptions, a search or seizure requires either a warrant or probable cause.

In this case, the court found that the social worker's actions "violated the most minimal standard of which we can conceive." The court held that where no legitimate basis exists for detaining a child, a seizure is plainly unreasonable. The court further found that this standard was clearly established as far back as 1994 when it held, in Doe v. Bagan, 41 F.3d 571 (10th Cir. 1994) that a seizure of a nine year old boy was justified at its inception because a victim of child abuse had identified him as her abuser and a ten minute interview with a social services caseworker was reasonably related in scope to determining Doe's role in the incident.

In a critical footnote in Jones v. Hunt, the court noted that "we do not imply that a social worker investigating allegations of abuse or neglect necessarily requires a warrant, probable cause, or exigent circumstances before questioning a child on public school property. Where a social worker merely conducted an interview of a child at a public school, and thus did not remove the child nor interfere with the sanctity of the private home, we have applied the Terry standard." (a search of a child by a government official is reasonable if "justified at its inception" and "reasonably related in scope to the circumstances which justified the interference in the first place")

The court concluded "it may be that the Terry standard applies even where a social worker removes a child from her parents' custody at a public school following a legitimate investigation into child abuse and neglect."

Should the Fourth Amendment apply to the day to day workings of social workers in child welfare investigations? Do social workers understand and apply this constitutional mandate in your jurisdiction?

Protections for Foster Children Enrolled in Clinical Trials

The following testimony was presented to the House Committee on Ways and Means Subcommittee on Human Resources on Wednesday, May 18, 2005 at a hearing on Protections for Foster Children Enrolled in Clinical Trials.

Alan Fleischman, M.D., Senior Advisor, The New York Academy of Medicine, New York, New York

Roberta Harris, Deputy Secretary, Wisconsin Department of Health and Family Services, Madison, Wisconsin

Marjorie Speers, Ph.D., Executive Director, Association for the Accreditation of Human Research Protection Programs, Inc.

Moira Szilagyi, M.D., Ph.D., Fellow of the American Academy of Pediatrics, on behalf of the American Academy of Pediatrics

Federal Regulation of International Adoption

Introduction

It has been over ten years since the United States signed the Hague Convention on Intercountry Adoption. It has been nearly seven years since the White House transmitted the treaty to the Senate for ratification. It has been four years since the Senate ratified the treaty and President Clinton signed the enabling legislation, the Intercountry Adoption Act (IAA) into law. It has been over three years since the State Department held a series of public meetings to elicit information to inform the process of writing implementing regulations.

International adoption has been a widely accepted practice in the United States for over fifty years. Yet for most of that time, our government has not regulated adoption businesses in any meaningful way. Despite assurances that the IAA would be implemented some time ago, the State Department continues to equivocate about issuing final regulations or what those regulations will do to create greater transparency and accountability. Now, nearly four years after both consumers and industry should have received clear guidelines; the outcome of this process has never seemed more compromised. With the lines drawn between maintaining the status quo and achieving the first meaningful federal regulation and real protections for consumers of international adoption real progress is at risk.

The Regulatory Failure

Fundamentally, the Hague Convention, an international treaty, and the Intercountry Adoption Act, its implementing legislation, were developed to address a range of problems identified in international adoption practice, from concerns about child trafficking to complaints about skyrocketing costs to a rising number of wrongful adoption suits. Nevertheless, over a decade of discussion, debate, Congressional hearings, legislation, meetings and a myriad of detailed comments, four years after the Intercountry Adoption Act was signed into law an impasse remains on how inter-country adoption should be regulated.

No one, it seems - including the “experts” - can agree on how the federal government should appropriately regulate this important, growing but ultimately complicated process. Our national “policy” remains allowing large sums of cash to leave the country in an entirely unregulated system and browbeating foreign governments into surrendering children in a decision making process for their foster children that none of our fifty states would permit for America’s waiting children.

For years, the argument against greater regulation of adoption by the federal government has been rooted in the notion that adoption is a state law issue. While adoption is an important benevolent response to the needs of orphaned children around the world, it is also a big business that generates millions of dollars in revenue. All international adoption is inherently interstate commerce. While the federal government regulates everything from coal mining to organ transplants, international adoption has remained beyond the reach of most federal enforcement or oversight. The State Department’s equivocation has ensured that consumers have more protections when they join a health club than they do when they make this profound and life altering decision.

This country’s failure to adequately regulate international adoption has already had serious consequences. By allowing each state, each agency, indeed, each family to pursue adoption differently the US government has ensured consumers of adoption services have no coherent guidelines to protect their interests. This lack of consistency has only been amplified by the use of the Internet to market adoption services and the growing demand for children. Lacking training in foreign policy or a sound regulatory framework would be adoptive families and their adoption agencies are encouraged to navigate the increasingly complex and treacherous geopolitics of countries around the world with virtually no training and in many cases a vested self-interest. The result has been diplomatic and emotional chaos.

Foreign Adoption at Risk

Predictably, many foreign governments have elected to suspend or ban adoption rather than manage the independent diplomacy of these competing interests. They have also demonstrated increasing resistance to permitting large cash payments to facilitators. According to Ethica: A Voice for Ethical Child Placement in the past fifteen years, 13 countries have suspended or ended their adoption programs. In addition, four additional countries have closed temporarily to investigate charges of corruption or child trafficking. These countries represent 43% of the countries that have provided the majority of children adopted to the US. Though the total numbers of international adoptions have risen slightly the numbers of sending countries has decreased.

Superficially, the adoption industry and the consumers of its services appear to agree that the stated purpose of the Hague Convention on Intercountry Adoption and its implementing legislation in the US served a valuable purpose. By creating uniform standards abuses in adoption could be minimized and the practice itself could grow.

Ironically, attempts to ensure oversight and adequate consumer protections, requiring liability insurance, limiting cash payments and demanding greater transparency for service providers have triggered a firestorm of controversy. Despite the fact that many federal agencies engage in aggressive consumer protection and oversight, the State Department has attempted to balance the interests of service providers large and small with the interests of consumers and the demands of diplomacy. Unfortunately, the proposed regulations demonstrate an inadequate response to abuses that prompted passage of the IAA or how those abuses might be tempered or eliminated and a lack of insight into the economics of international adoption. Conflicts focus on several key areas:

Liability


For many years, adoption agencies working abroad have relied on the services of so called facilitators to identify and procure children for adoption and to navigate the often complex political issues in the sending country. Facilitators often require large cash payments, ostensibly for their services. They also work as independent contractors and have traditionally had little or no exposure to liability when issues related to their service arise. In some instances, facilitators have engaged in illegal activity including money laundering and child abduction. Even then, consumers have had little or no recourse for their actions.

The IAA addresses this problem by requiring that adoption agencies assume responsibility for all of their employees, contractors and facilitators here and abroad. Major adoption trade groups like the Joint Council for International Children’s Services (JCICS) have opposed this provision despite the fact that American companies doing business abroad are routinely expected to take responsibility for and adequately supervise their employees overseas. This loophole has left birth and adoptive families vulnerable to a variety of abuses while their service providers maintain plausible deniability.

Contractual Waivers

The IAA forbids the now common practice by adoption agencies of requiring prospective adoptive to sign waivers of liability on the part of their agency or its agents. Trade groups like the Joint Council hold that professionals in other areas are not expected to meet this standard. However, that assertion is not true. Professionals in occupations involved with the public interest - especially professionals rendering services to clients or patients dependent on them like physicians - are routinely prohibited from seeking exculpatory provisions from their clients. According to the American Adoption Congress, lawyers are specifically prohibited from doing so, for instance in the Model Code of Professional Responsibility Disciplinary Rule 6-102 which states “A lawyer shall not attempt to exonerate himself from or limit his liability to his client for his personal malpractice.” It is hard to imagine a scenario more fraught with emotional dependency that the relationship between an adoption agency and a prospective adoptive family, not to mention a birth family. Thus, there is ample precedent, both legal and ethical, to resolve the issue of waivers in favor of consumers.

Insurance


Perhaps the most controversial provision in the IAA requires adoption agencies to carry professional liability insurance in the amount of $1 million per occurrence. It came as a shock to many policy makers that many adoption agencies operated without insurance. It probably never occurs to many prospective consumers of adoption services to even inquire. According to one JCICS backgrounder, such insurance is “unobtainable.” Even if such coverage were readily available, they allege, it would be prohibitively expensive. This, of course, simply isn’t true either. A number of reputable insurance carriers provide reasonably priced coverage for qualified agencies providing adoption services.

Insurance provisions as required by the new law are reasonable and there are ample precedents in other fields. Insurers will add a layer of consumer protection by helping to enforce the safeguards of professional conduct as they do in other professions. In fact, until the State Department implements consumer protections mandated by Congress the underwriting process might represent the only effective regulation the industry has. Perhaps the question the State Department should be considering is whether or not an agency that cannot be insured should be in business in the first place. It is unlikely that most adoption agency owners would undergo brain surgery by a doctor lacking malpractice insurance.

There have been many experiences where negligence or fraud in an adoption placement has led to severe financial and emotional distress for innocent adoptive families. Even if the cost of insurance premiums was passed on to consumers it would amount to a nominal fee, $300 - 1000 in the context of a costly adoption. This is a fee most prospective adoptive parents would happily assume. It is certainly a cost that could be offset by lowering cash payments to foreign facilitators. Using the ultimate scare tactic to avoid assuming this normal cost of doing business many adoption agencies go on to assert that agencies “will have no choice but to pass this cost onto adoptive families” and that “fewer families will be able to adopt” due to cost. As for that canard, it should be noted that it is impossible to quantify how many qualified; loving families around the world have already been priced out of the adoption market by double-digit fees that the federal government refuses to cap. Since the US effectively limit pricing in other industries, offsetting rising costs with federal subsidies, perhaps it is time to engage in a serious discussion to subsidize adoption costs, either for industry or consumers or both.

Conclusion

Around the world, thousands of children are desperately in need of families. Around the United States there are hundreds of excellent adoption providers seeking to match those children with the thousands of well-qualified families in this country seeking to adopt. The fundamental purpose of the Inter-country Adoption Act was to provide a consistent, clearly articulated business model for inter-country adoption that would limit abuses, protect ethical agencies and consumers and make it easier for everyone to participate in this important component of international child welfare.

Over the years the inaction of the US government and the State Department in particular has penalized good agencies while creating a haven for less good ones. It has ensured that consumers of adoption services will continue to operate without protections afforded to constituents of dozens of other federal agencies and industries. It has created a diplomatic nightmare for foreign governments struggling simultaneously to establish credible child welfare agencies while attempting to accommodate the costly and constant demands of adoption agencies.

Many people with a vested interest in the adoption industry have attempted to persuade policy makers and consumers that any effort to regulate adoption is tantamount to being anti-adoption. However, it is impossible to quantify how many children have been deprived of families because we haven’t. As we fail to take adequate regulatory responsibility for adoption the tens of thousands of children who will continue to languish around the world while the US government remains confused about a task that should be crystal clear.

Guest Commentary by

Maureen Flatley

This is an update of a 1999 article which originally appeared in Decree which is published by the American Adoption Congress

Foster Care Meets the Third Reich<br><em>reference is borrowed from the New England Journal of Medicine</em>

Over one year ago, the Alliance for Human Research Protection in New York City alerted the federal Food and Drug Administration that they had “reason to believe that federal regulations for the protection of children as research subjects have been seriously violated in federally funded HIV research.”

Kudos also to Liam Scheff who in December 2003 broke the story of the drug trials in an online article entitled “The House That AIDS Built”.

AHRP’s letter to the FDA states that “a series of Phase I and Phase II drug experiments were conducted on infants and children who were under the guardianship of the New York City Agency for Children's Services (ACS), and living at Incarnation Children's Center, a foster care facility under contract with ACS. The test subjects were children diagnosed with HIV infection - in some cases infants who were merely "presumed" to be HIV-infected. Phase I and Phase II experiments involve the greatest level of risk and discomfort for children insofar as they test the safety and toxicity of the drugs as well as maximum dose tolerance.”

In response to these allegations, the New York City Administration for Children’s Services (ACS) recently contracted with the Vera Institute of Justice to conduct an independent review of ACS policy and practice regarding the enrollment of HIV-positive children in foster care in clinical drug trials during the late 1980s and 1990s.

The former-leading-critic-turned-revolving-door-head of ACS, John B. Mattingly, defensively responded in a press release “that the policies in place at the time reflected good practice.” That is, if there ever WERE any policies in place that anyone could then or now locate!

The BBC previously reported on this story in November 2004. Now that the New York Times and Associated Press have finally discovered this unbelievable scandal, trial lawyers, like my firm Marsh and Gaughran LLP, can not and should not be far behind. Along with a General Accounting Office investigation and Capital Hill hearings.

And finally, it remains incredible to me that in the 21st Century in the United States of America—where murders, rapists and pedophiles have a Constitutional entitlement to a court-appointed and taxpayer funded lawyer—children are involuntarily placed into foster care with no right to an attorney. In the vast majority of the states, foster children are lucky to get a well meaning but usually ineffectual community volunteer as an advocate in court.

The hundreds of thousands of voiceless and neglected foster children will remain so until Congress, the states and the bar get serious about providing well funded trained lawyers who zealously assert the child's position. Anything less is a sham.

As for Mattingly, we’re enrolling him and the heads and former heads of child welfare in Illinois, Louisiana, Maryland, New York, North Carolina, Colorado and Texas, in an involuntary clinical trial of civil lawsuits. This time foster children will win! Sieg heil.

Intercountry adoption: Who are the good guys?

The January 5, 2005 CNN headline read, “Trafficking a threat to tsunami orphans.” Within days after the tsunami hit, Indonesia had begun putting into place policies which prohibited any child under age 16 from leaving the country. Why? The Indonesian Embassy’s press secretary in Washington explained that “"the government would like to protect the children from potential traffickers.” It had cause for concern – estimates of children trafficked each year range from a half a million to four million.

Is this concern sufficient to interfere with legitimate intercountry adoption? Indeed, is intercountry adoption an act of unparalleled altruism, or is it a sly way of kidnapping a poor country’s children? International child advocates are engaged in finger pointing at each other. One side confidently asserts that, but for intercountry adoptions, the few children who are saved would be destined to be untouchables in the back rooms of institutions in their native countries. The other side claims that cultural genocide and unofficial baby buying is what is really going on. So, who are the good guys?

According to the National Adoption Clearinghouse, Americans adopted 21,600 children from abroad in the year 2003. Many of them had confirmed health problems, among them HIV/AIDS, developmental disabilities, malnutrition, congenital defects, tuberculosis, and hepatitis.

Intercountry adoption raises many general questions: Are such adoptions really in the best interest of the child? Are birth parents relinquishing their babies under economic or cultural duress? Do we know, from valid studies, if the adopted child will adjust satisfactorily to a new culture? Is there an element of classism and imperialism when Americans and Western Europeans secure babies from developing countries?

Modern-day adoption statutes and international conventions balance the interests of children, birth parents, adoptive parents, states, cultures, and countries. Indeed, intercountry adoption is not a topic which can be easily divorced from the swirl of geo- politics. Intercountry adoption implicates the international reciprocal rights and duties that people claim for and from each other. But to limit human interactions to those based solely on duties and rights is to overlook the most essential aspect of being human - genuine concern for one another. Focusing on this communal aspect enhances our most human virtues.

Complicating the resolution of these general issues is the need for answers to three specific questions: Which data is really valuable in determining the best place for a child? What risks are there to a child in terms of abuse and exploitation in the care of an institution in the child’s home country versus those same risks if the child were adopted, whether it is within or outside of their home country? Is there more we can do to help the poorest countries become more efficient in finding homes within their own countries?

Given the large numbers of children who are in the care of orphanages around the world, and an intercountry total worldwide annual adoption rate that numbers only approximately 30,000 much rancor has ensued. Perhaps both sides of this debate should acknowledge elements of truth in the other’s position. When an unwanted child with or without medical or emotional problems is spared a devastating, lonely, neglected life, clearly the adoptive parents, no matter where they reside, are doing an act of great love and kindness. On the other hand, when a child is adopted by parents many thousands of miles away without the host country having made rigorous attempts to secure a permanent family for that child in its own country, there may be grounds to question whether the adoption is really in the best interests of the child or primarily in the best interests of the parents.

In order to achieve real-time positive results the international adoption community needs to have all the relevant facts and figures about the child in actual time. The ability to make decisions quickly based on reliable information is the key factor to success in the face of difficult situations faced by at-risk children. We need intelligent solutions that will provide us with relevant information and allow us to plainly see the risks and chances for success by either leaving the child in its country of birth or removing it and allowing it to be swiftly adopted.

An elementary school teacher told me the following story: She was watching the children in her classroom while they were drawing pictures. When she approached one girl who she knew had been recently adopted, she asked, “What are you drawing?” “I’m drawing a picture of love,” the girl replied. The teacher remarked, “But nobody knows what love looks like.” The girl shyly replied, “They will when I finish my picture.”

This commentary originally appeared in Policy & Practice, (March, 2005), 63 (1), 28.

Guest commentary by

Daniel Pollack, MSW, JD

Professor at Yeshiva University’s School of Social Work in NYC

Senior Fellow, Center for Adoption Research,

University of Massachusetts Medical School

Dan can be contacted at (212) 960-0836

Social Work and the Courts

This book will give social workers a good introduction to the law as it affects the practice of social work and social work in general. The book is well designed for use by non-lawyers because its chapters are organized by subject matter rather than by legal principles. Therefore, for example, the reader can quickly go to those cases dealing with aging or income maintenance.

Other parts of the book are helpful to social workers interested in learning more about the laws and legal decisions that affect their profession. There is a brief section that explains 'how to use this book' that will enable the nonlawyer reader to engage in additional reading. In addition, there is a nine page section that lists all the cases in the book with a brief description of each case, a glossary and a recent bibliography.

Almost each case description ends with references to additional materials. The case descriptions themselves are clearly written and each contains a section that explains the implications of the decision.

It is these "implications" that are the most valuable aspect of the book because it is here that the author demonstrates how the decision impacts social workers and what they do, their clients and society in general.

Lawyers who are interested in learning more about the relationship between law and social work or who are working in human services agencies will find this book to be useful. Lawyers who wish to research a particular issue can use the cases discussed and other citations to begin their research. By reading this book lawyers who represent agencies can get a good sense of the legal issues that will be of concern to the agency.

Although lawyers will find much that is useful in Social Work and the Courts, it is social workers who will be able to use this book to further their knowledge of the law and gain a better understanding of the legal consequences that flow from the practices and policies of social workers and human services agencies.

When a Child Safety Plan = Coercion

The recent trend in child protective services (CPS) of creating safety plans received a set back recently in federal court. Judge Rebecca R. Pallmeyer of the United States District Court, Northern District of Illinois ruled that in-home safety plans created by the Illinois Department of Children and Families (DCFS) were illegal because they were secured in a coercive manner.

The coercion at issue was the CPS worker's express or implied threat of to take the child into protective custody lasting more than a brief or temporary period of time. The court also ruled that DCFS failure to provide a mechanism to review safety plans once they were put in place violated due process. The court declared that not all child safety plans trigger constitutional issues and gave DCFS 60 days to create constitutionally adequate procedures consistent with the opinion.

The ruling seems to indicate that DCFS can create an acceptable review process that does not require families to hire legal counsel. The issue of coercion is tricky. While it is possible to use non-coercive language, the imposition of safety plans in which parents agree or the child is removed has features not unlike the old consent dockets of juvenile courts which were also ruled unconstitutional.

If the agency judges a child to be in imminent danger of serious harm--general statutory language for justifying removal of a child--acceptance of a reasonable in-home safety plan may be the family's only alternative to placement. If the family does not consent to the plan (assuming the plan is reasonable and justified by the safety assessment) there is a seemingly inevitable coercive reality that without acceptance of the plan, the agency will need to take protective custody in order to ensure the safety of a child.

The issue in this decision is that a family's acceptance of a safety plan must be made only after a full understanding of these realties and the lawful alternatives. Under our constitutional system, state intervention in family life, including the threat of removing a child, is limited. According to this court, due process protections are required to balance the rights of families and the state's compelling interest in a child's welfare.

Guest Commentary by

Thomas Morton

President and CEO

Child Welfare Institute

Terminating Parental Rights when Visitation is Prohibited

In a matter of first impression anywhere (correct me if I'm wrong), the Wisconsin Supreme Court recently held that a statute which allowed termination of parental rights based on a judicial order which prohibited visitation was narrowly tailored to serve state's compelling interest of protecting children from unfit parents.

The Wisconsin law states that a "[continual] denial of periods of physical placement or visitation" is a ground for terminating parental rights. A finding under the provision requires that:

(a) the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order, and

(b) at least one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its order so as to permit periods of physical placement or visitation.

The parent argued that the law violates substantive due process because it does not require any evidence of parental unfitness. The no-contact orders denying physical placement or visitation are based on the best interest of the child rather than on a finding that the parent is unfit. Since these orders are the sole basis for a finding that grounds exist for terminating his parental rights, the statute is not narrowly tailored to meet a compelling state interest and violates his substantive due process right.

The court disagreed finding that only after multiple steps was the parent faced with a fact-finding hearing on whether this ground for terminating parental rights existed. The findings that are required for a court to proceed against a parent at each of the steps prior to the final step involve an evaluation of a parent's fitness. It is the cumulative effect of the determinations made at each of the previous steps that causes the finding made under this TPR provision to amount to unfitness.

The court concluded that, on its face, the law is narrowly tailored to serve the state's compelling interest of protecting children from unfit parents, including the temporal component in this interest that promotes children's welfare through stability and permanency in their lives.

Two judges dissented finding that no matter how you slice and dice the statutory scheme used in the present case, nowhere can be found a lower court's finding of the parent's individualized unfitness. The dissenters criticized the majority opinion for inferring unfitness when there was not an explicit finding of unfitness aside from a finding of a statutory ground. They found that the parent did not have an individualized judicial determination that he is an unfit parent. Under the statutory scheme, not only is such a determination unnecessary, but the parent was precluded from having a determination on that very issue.

Quoting from one of the dissenters: "The ramifications of the majority opinion in this case cannot be understated. A child may be taken away from a parent, in the best interests of the child and for reasons that have nothing to do with the unfitness of that parent. Conditions for return of the child can be ordered by the court, which simply cannot be met for reasons having nothing to do with the unfitness of the parent. At the expiration of one year, a parent may have his or her parental rights terminated absent any particularized showing of unfitness, simply because he or she cannot satisfy the conditions set by the trial court."

No word on whether this case is headed to the United States Supreme Court, but I think the issue is ripe for review and could result in one of the most significant parental rights/child welfare decisions in decades. What do you think?

Foster Care Law - The Book!

Mention the phrase “foster care” to nearly anyone and you may evoke one of several images: maltreated children; kindly strangers; abusive strangers; bureaucratic bungling. One image not likely evoked will be the sheer enormity of the foster care system. Foster care is big business. In 1989, the federal government spent 1.2 billion dollars to reimburse state spending on foster care. This year it will be over 6 billion dollars, an increase of more than 400%!

Foster care is a way of offering children a stable home while their own parents are unable to care for them. Some children may have been neglected or mistreated. Social workers and lawyers work with biological and foster families to help parents and children sort out their problems in order to make the biological home a safe place to which the child can return. Usually, foster care is a temporary arrangement. Some children return to their own families in a matter of days, weeks, or months. Those who cannot (two-thirds will stay more than a year) may stay in long-term foster care or may be adopted. Ideally, each child is placed in a foster home that is thoughtfully chosen to meet their unique needs. The principal goal is to significantly reduce the length of time a child spends in the frustrating wait to return to their own home, to find a permanent home, or to be adopted.

This book galvanizes and centralizes a great deal of legal and social work information about foster care into one easy-to–understand primer. The child welfare services system in general and the foster care system in particular are both amalgamations of federal and state law, hazily defined standards, policies, and practices. Public policy is defined by broad strokes; law is defined in its details.

Forster Care Law - A Primer catalogues and organizes numerous disparate bits of policy and legal information into a single volume that new or seasoned social workers and lawyers will find invaluable, even as public and private agencies are hampered by high staff turnover and inexperienced workers.

While anyone can apply to be a foster parent, to be an effective foster parent is a challenging task that calls for specific knowledge, skills and abilities. Even armed with these, foster parents too often find themselves unappreciated and criticized. Every new report of child abuse by a foster parent further weakens the desire of would-be foster parents and undermines the ability of agencies to retain their veteran foster parents. To combat this pessimism, one of the virtue’s of this book is the authors’ ability to provide a comprehensive review of risk and liability issues. This is accomplished by citing numerous legal cases without dragging the reader into a quagmire of legal jargon.

There is unanimous agreement that the American family is in a state of crisis. Births to unwed parents are still at record high levels, marriage rates are down, and divorce rates are up. Legislators, lawyers, social workers, and public policy makers are constantly pondering ways to evaluate such family changes in an attempt to determine possible responses to them. Schweitzer and Larsen have unraveled one strand of the family crisis mess. This book does what few child advocacy books do. It deftly communicates real-life practice, policy, and law to front-line workers without sounding like a training manual. It is a book that should truly help many of us lawyers and social workers do our jobs better.

Guest book review by

Daniel Pollack, MSW, JD

Professor at Yeshiva University’s School of Social Work in NYC

Senior Fellow, Center for Adoption Research,

University of Massachusetts Medical School

Dan can be contacted at (212) 960-0836

The Capacity of a Mentally Retarded Parent to Consent to Adoption

It is universally acknowledged that persons with mentally retardation have, to the maximum degree possible, the same rights as all other people. As early as 1971, the United Nations passed its Declaration on the Rights of Mentally Retarded Persons. A key provision states that whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse.

In the United States, the ability to adopt the child of a mentally disabled parent hinges upon the termination of the disabled parent’s rights. When the parent is mentally disabled, the ability to obtain the parent’s consent is complex and varies between states, but is always determined pursuant to a hearing. Most states hold that the capacity to consent is determined by analyzing whether the parent is capable of caring for the child, and/or considerations of the best interest of the child. Therefore, in the absence of specific legislation to the contrary, a third party has no right to decide such legal matters for an otherwise competent individual.

Case Law Trends

In general there must be consent to adoption. Typical state codes hold that consent to adoption is required of the following parties:

(1) both natural parents of a child conceived or born in wedlock;

(2) the mother of a child born out of wedlock;

(3) the adoptee who is over 14 years of age, unless the judge waives this consent;

(4) the person or agency having custody of the child;

(5) the father of a child born out of wedlock, if he has maintained substantial and continuous or repeated contact with the child as demonstrated by payment of child support and visitation of the child at least monthly when permitted and financially able to do so, or regular communication with the child or agency having custody of the child when permitted and financially able to do so; and

(6) the father of a child born out of wedlock who is under 6 months of age at the time he is placed for adoption, who has lived continuously with the child or the child's mother for 6 months before the adoption and who held himself out to be the father.

Capacity Hearings

In the case of parents who are mentally retarded, an initial hearing must be held to determine the capacity and fitness of the mentally retarded parent. In Helvey v. Rednour (1980) the Illinois Appellate Court held that the Illinois Adoption Act was unconstitutional because it appointed a guardian ad litem with the power to consent to adoption for mentally retarded parents. This Act was held unconstitutional because it omitted a fitness hearing, a violation of the Equal Protection and the Due Process Clauses of the Fourteenth Amendment. Since there was no requirement in the statute mandating a finding of parental unfitness as a condition precedent to the appointment of the guardian, the statute creates a presumption that all retarded parents are unfit, which is unconstitutional.

State Standards

During the hearing process, courts decide whether to terminate parental rights by using a combination of parental fitness and best interests of the child tests to determine whether the mentally retarded parent has the ability to consent. In Adoption of Abigail (1986), the court declared that the mental retardation of a parent is not sufficient grounds for the termination of parental rights. For the parental rights to be terminated, it is necessary to show that the mental retardation affects the parent’s fitness or the child’s well-being.

Withdrawal of Consent

An additional issue concerning the mentally retarded parent’s capacity to consent is raised by cases where parents want to rescind their consent after the adoption has occurred. If a mentally retarded parent attempts to withdraw consent, the court has to determine whether the mentally retarded person initially gave informed and intelligent consent to the adoption.

Some courts also consider the ability to nullify an adoption as a contract matter. In such a situation, the burden to prove incapacity to contract is on the mentally retarded parent, and must be proven by convincing evidence. In In re Adoption of Smith (1991), the mother, who was mildly retarded, wanted to invalidate her written surrender of her children because she did not comprehend that she was giving up her parental rights. The adoptive parents were trusted friends and neighbors of the mother. They cared for two of her children while the third was in the hospital, and aided the mother with shopping and paying bills. However, the mother was dependent on the adoptive parents and was induced into signing the agreement. The court held that the consent was void because she did not understand the repercussions of her act. Without such an understanding, there could have been no meeting of the minds and, therefore, the consent for the adoption was rescinded using basic contract theory.

Under what circumstances can state officials, in their capacities as defendants, be held liable? 42 USC § 1983 imposes liability on anyone who, acting under color of state law, deprives a person of "any rights, privileges, or immunities secured by the Constitution and laws." In Blessing v. Freestone, the Supreme Court held that in order to seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law. The US Supreme Court has looked at three factors when determining whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so "vague and amorphous" that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States.

Practice Tips

To ensure these parents are properly represented, consider the following points:

* Strictly enforce notice requirements.

* Ensure appropriate services have been offered to the parent in a timely manner. Mental disability itself is not a reason for TPR.

* Be able to demonstrate that the parent can or cannot materially improve the behavior that precipitated the request for a TPR.

* The parent’s capacity to understand the ramifications and significance of the TPR proceeding is key. To the extent possible, the parent should understand the finality of the court proceeding, or, if the TPR is voluntary the consent must given knowingly and without coercion.

* Besides court-ordered physician testimony, secure documentation from the parent’s treating physician.

* Make sure there is no undue influence.

* Even though there may be grounds for TPR, there is a need to document that the proposed permanency plan is in the best interest of the child.

* State officials, in their capacity as defendants, often argue that they are entitled to qualified immunity. Consult an attorney to determine whether or not this immunity exists.

References

42 USC § 1983

Blessing v. Freestone (1997)

Good v. Zavala, 531 S.2d 909 (Ala. Civ. App. 1988)

Helvey v. Rednour, 408 N.E.2d 17 (Ill. App. Ct. 1980)

Hunter v. Bryant (1991)

In re A.M.K., 420 N.W.2d 718 (Neb. 1988)

In re Adoption of Smith, 578 So.2d 988 (La. Ct. App. 1991)

Poe v. Leonard (2d Cir 2002)

United Nations (1971) - Declaration on the Rights of Mentally Retarded Persons - Resolution 2856 (XXVI) (December 20, 1971)

Vega v. Miller (2d Cir 2001)

By Daniel Pollack, MSW, JD, Professor at Yeshiva University’s School of Social Work in New York City and

Senior Fellow, Center for Adoption Research, University of Massachusetts Medical School, Worcester, MA

Dan can be contacted at (212) 960-0836

Social Workers as Expert Witnesses in Child Welfare Cases

Lawyers are increasingly calling upon social workers to serve as expert witnesses in cases involving children and families. Roles for social workers are emerging in the courtroom as expert witnesses in such areas as guardianship, forensic issues, child abuse and neglect, commitment hearings, education, and family custody evaluation.

As society gets more specialized and complicated, the courts are using the testimony of expert witnesses to help resolve cases. Whether defending social workers or agencies, or litigating on behalf of a client, having the right experienced expert witness can make the difference between winning or losing an important case.

How Social Work Experts Can Aid the Court

A social worker who is called as an expert witness should be able to provide:

* An in-depth analysis of the events and issues in question. For instance, in many states social workers are permitted to make diagnostic assessments.

* A thorough analysis of the procedures, policies and practices used by the social workers and agency to determine their appropriateness, legality, and conformity with current practice (e.g., were child abuse investigation procedures appropriately carried out?).

* A thorough analysis of the strengths and weaknesses of the case from many perspectives (e.g., clinical, administrative, managerial, supervisory).

* Reviewing pertinent documents, evaluating their findings, and developing conclusions regarding the evidence.

* Trial preparation and assistance during the discovery and trial phases.

* A familiarity with relevant and applicable case law.

* Testimony which is ethical, accurate and persuasive. Contrary to popular myth, expert witnesses are sworn to be completely truthful -- they cannot ‘fudge.’ It is important to remember that they are not advocates; their primary duty is to the court, not to the person who retained the expert.

* Special qualifications to testify in a specific case (i.e., Does the witness have any unique publications regarding the issues at bar? Does the witness demonstrate any bias for the plaintiff or defendant? Does the witness offer previous testifying experience? For whom? Which specific cases?

Assessing Qualifications

Who can be an expert witness and what is required to become an expert witness? Expert witnesses are usually expert consultants who testify under oath about the specifics of a case. They relate their conclusions and opinions about the actions in question. More than ever, social work issues in litigation require the services of expert witnesses. Experts are needed to inform judges and juries on technical matters and national standards of care for human services issues related to the cases brought before them.

When choosing social workers as expert witness, lawyers should look for people with qualifications that will help them accurately identify best practice standards, thus adding credibility to their position or allegations. Remember, social workers’ expertise has limits. For instance, the Massachusetts Supreme Judicial Court recently found in Commonwealth v. Frangipane, 744 NE2d 25 (MA 2001) that a social worker was improperly allowed to testify about memory loss and recovery.

The witness was called to discuss traumatic memory in the context of sexual abuse. She did not review any case records, nor did she assess the alleged victim. Rather, she articulated a phenomenon known as "dissociative memory loss," using her clinical experience and background of attending seminars on traumatic memory.

The Massachusetts Supreme Court did not take issue with the trial court's admitting her testimony on child abuse or trauma victim experience, but did find reversible error in allowing her to testify about how traumatic memories are stored and retrieved in the brain, which depended on advanced scientific knowledge of brain function. It held that these were physiological matters about which the social worker was not trained and was not expert.

Generally, witnesses must testify to facts, not opinions. The exception to this rule is for expert witnesses. Indeed, an expert witness is on the witness stand to offer an opinion. For this reason a social worker can be qualified as an expert witness only if she has special knowledge, skill, experience, training, or education.

Attorneys should look for social workers who have real work experience and an academic or theoretical background. They should be prepared to answer such questions as: Have you referred to any articles or books in preparing for this case? Which texts do you consider authoritative? Who are the authoritative authors in this field?

Because a case can be won or lost depending upon how well the expert witness delivers information in court, it is important that the experts can speak with authority and know how to communicate effectively. As soon as the expert witness takes the stand, the judge and jury begin to draw conclusions. So, the stature and appearance of an expert witness is crucial in establishing credibility.

Lawyers should seek effective expert witnesses who understand how a lawsuit unfolds through the pleadings, written discovery, depositions, hearings, and trial. The expert is a more valuable asset when there is an understanding of the overall court process, whether it is in criminal court, civil court, or before an administrative body.

Lawyers should especially seek social workers as expert witnesses whose responses to questions are succinct, and who can communicate confidence, sincerity and professionalism. Social workers as expert witnesses should never volunteer information outside their area of expertise; doing so can quickly weaken their credibility. One primary purpose of opposing legal counsel is to undermine the credibility of the expert witness, which can then nullify their testimony.

The ideal social work expert witness will have significant frontline and administrative experience and come across as someone who is unquestionably neutral. Indeed, many attorneys look for an expert witness who has testified as often for the prosecution as for the defense. The expert should be someone who has not changed jobs frequently, is known and respected in the wider social services community, has written extensively in professional journals, and is able to accurately and clearly summarize complex social work issues.

Social workers who have been trained in the use of objective assessment instruments and techniques which have been empirically validated are especially well-suited to be called as experts.

Costs

The cost of retaining social workers can vary considerably. They are usually paid by the hour. The hourly fee typically covers reviewing documents, interviewing key people in the case, travel expenses, and any other time spent working on the case. Rates for being deposed or testifying in court are usually higher than for other kinds of preparatory work.

Conclusion

The growing use of social workers as expert witness will likely continue. Social workers who serve in this role will play an important part in litigation and dispute resolution. Retaining a social work expert witness will not necessarily result in a victory in the courtroom. A credible expert witness, however, can offer invaluable information that can be used to present a more comprehensive case.

By Daniel Pollack, MSW, JD, Professor at Yeshiva University’s School of Social Work in New York City and

Senior Fellow, Center for Adoption Research, University of Massachusetts Medical School, Worcester, MA

Dan can be contacted at (212) 960-0836