Abused Child Victim Denied Lawyer at Psych Exam

Last month, a federal judge ruled that a child who is suing the Boy Scouts for emotional distress for abuse at a faith-based military camp is not entitled to have his lawyer present during a psychiatric examination.

In M.S. et al v. Cedar Bridge Military Academy et al, federal Magistrate Judge Martin C. Carlson found that a lawyer's presence "interjects an adversarial, partisan atmosphere into what should be otherwise a wholly objective inquiry."

Judge Carlson explained that there is a conflict between federal civil procedure and the Pennsylvania rules. The federal rule and case law discourage any observers, while Pennsylvania's Rule 4010 permits lawyers to attend such examinations.

The judge concluded that Rule 4010 is not a "rule of substance" that is binding on the federal courts, but rather "is simply a procedural preference which does not control our exercise of discretion" under Rule 35 of the Federal Rules of Civil Procedure.

Rule 35, however, allows the court to determine “the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” Rule 35 "consigns the procedures to be used in conducting these examinations to the sound discretion of the court, an approach that is consistent with the general guidance of the rules which provide that issues relating to the scope of discovery rest in the sound discretion of the Court."

Clearly, under this analysis, Judge Carlson could have allowed the victim's parents or attorney to be present during the exam subject to whatever reasonable "conditions" the court imposed. Judge Carlson recognized that "[i]n considering this question, we note that the exercise of our discretion compels a choice between conflicting guidance. Rule 35 does not, by its terms, specify who may attend a psychiatric examination undertaken in connection with civil litigation."

There was no discussion that this case involves a child victim nor any consideration of the child's maturity or any special circumstances which would necessitate the attorney's presence at the exam.

International Adoption Racketeering

Using a strategy pioneered by my law firm in this 2006 lawsuit against JCIS and NCFA-certified World Child International Adoption Agency, five couples recently filed a federal Racketeer Influenced and Corrupt Organization (RICO) claim against Main Street Adoption Services, based in (where else - the epicenter of bad adoptions) Lancaster, Pennsylvania.

The plaintiffs claim the international adoption agency that promised each a baby from Guatemala scammed them in a "bait and switch" scheme. They accuse the agency and three individuals of conspiring with one another "for the illegal purpose of committing fraudulent adoptions through a bait and switch scheme, an adoption scheme that offered illusory promises."

Between 2007 and 2008, the prospective parents spent up to $25,000 apiece for adoptions that were never finalized completed. The couples suffered humiliation, outrage, indignation, sleepless nights, and severe emotional distress.

In each case, the agency promised the couples a Guatemalan child and in each case, things went wrong even after the couples traveled to Guatemala to meet the children.

The suit demands the adoption agency pay each couple triple the amount of their losses as well as cover court costs and damages of more than $75,000.

The attorney representing the adoptive parents is a well-known champion of using RICO in fraudulent adoption cases, Joni M. Fixel of Okemos, Michigan.

A copy of the complaint is here.

Court Okays Student's MySpace Principal Parody

The Third Circuit Court of Appeals has finally ruled that school officials cannot discipline students for ridiculing their principals on MySpace during their hours away from school.

As I discussed last year in the blog here, the Court agreed to re-hear both cases en banc (with the Court's entire 14 judges considering the case). In the first, J.S. v. Blue Mountain School District, the judges were sharply split, voting 8-6 to overturn a 10-day suspension of a student who posted a fake profile on MySpace that portrayed the principal as a pedophile and a sex addict.

The majority opinion rejected the school district's argument that such lewd speech—even when it occurs off campus—may be punished if it targets school officials and has the potential to create a disturbance at school. Such a determination "would vest school officials with dangerously overbroad censorship discretion."

The Court found that the student had created the fake profile "as a joke," and took steps to make it private so that it would be accessible only to her and her friends.

While it was "indisputably vulgar," it was also "so juvenile and nonsensical that no reasonable person could take its content seriously."

The Court concluded that lewdness and a connection to the school community was not enough to satisfy the Tinker and Fraser tests. In order for the Court to rule for the school district, the explained that it would be forced to "adopt a rule that allows school officials to punish any speech by a student that takes place anywhere, at any time, as long as it is about the school or a school official, is brought to the attention of a school official, and is deemed 'offensive' by the prevailing authority."

The second case, Layshock v. Hermitage School District, was less controversial. The Court unanimously held that the school district waived any so-called Tinker defense that focuses on speech that causes disturbances at school.

The majority in that decision held that it would be "an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child's home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities."

Judge Overturns 6-Year-Old's Expulsion Over Touching

A Philadelphia judge has ruled that a kindergartner should not have been expelled from a charter school because he allegedly touched his teacher’s thighs.

Philadelphia Common Pleas Court Judge Paul P. Panepinto, writing an opinion explaining his decision to the Commonwealth Court May 23, said that, on the record before him, no reasonable person would have reached the same decision as the First Philadelphia Charter School for Literacy’s Board of Trustees to expel a student who allegedly touched his teacher’s legs after she complained that they hurt.

The decision to expel the kindergartner was arbitrary, capricious and prejudicial to the public interest and was a gross abuse of discretion, Panepinto said.

Read the full story here at The Legal Intelligencer.

Transparency in Human Services

Diamonds that are absolutely clear are the most valuable—so too, departments of human services. The word transparency is derived from the Latin, transparere, meaning to appear or to become visible.

Transparency has become a popular term to denote open and honest government. In human services transparency is the desire and ability to conduct business in a clear and accountable manner. This does not mean that privacy and confidentiality are given short shrift. Rather, it means the department genuinely tries to inform the public how it works while simultaneously trying not to be ambiguous.

Arkansas recently passed a law that takes a step in that direction. The purpose of the Act is to “clarify the procedure for public disclosure of information related to child fatalities or near-fatalities…” Toward this end, the department of human services must place on its web site certain information within 72 hours of a child fatality or near fatality occurring.

This information includes the age, race, and gender of the child; the date of the child’s death or near-death incident; the allegations or preliminary cause of death or incident; the county and placement in which the child was located at the time of the incident; the generic relationship of the alleged offender to child; the identity of the agency conducting the investigation; the legal actions taken by the department; a list of services offered or provided by the department presently and in the past; and, the child’s name. Not shared will be any information on the siblings of the child, nor any attorney-client communications.

In the first two weeks since the law took effect, the Arkansas DHS web site indicates there were seven fatalities and three near fatalities. All were male; all were the victims of neglect, physical abuse, or inadequate supervision. Such real time information can be invaluable to the department and the public.

Kansas recently passed the Taxpayer Transparency Act. Its new spending database, KanView, allows citizens to search state revenues or expenditures by agency, fund, program, object or vendor. Similar legislation has been passed in South Carolina, Louisiana, Georgia, Kentucky, Texas, and Missouri.

What are some general principles of transparency that departments of human services can adopt?

• Offer stakeholders real time involvement. Meetings, especially ones that attract many people from across the state, can be webcast live through various video applications. Berkeley, California webcasts meetings of its city council, rent stabilization board, zoning adjustments board, and redevelopment agency. These meetings are also recorded for later download and can be closed captioned for hearing impaired individuals.



• Offer information for free whenever possible. Webcasting and making documents available electronically can usually be done with minimal costs. Charging citizens unnecessarily only serves to distance us from the very people we want to involve.



• Offer primary data that is as complete as possible. Include all data that is not subject to legal privacy restrictions in a format that is in both aggregated and unaggregated. Summaries of data should be offered but not to the exclusion of raw data. Things such as department purchases, sales, and contracts should be easily tracked and available for public viewing.



• Offer data that can be manipulated by the end user. Allow the public to use the data in ways it wants to use it, not only in the way the department wants it perceived. Allow users to search contracts and grants by county, city, contracting agency or type of award, including all sub-grants and sub-contracts.
  



• Assign the task of transparency oversight to a high level official. Make sure the public and other stakeholders are satisfied with the level of transparency offered by the department.

At the federal administrative level, a search engine called the Library of Unified Information Sources (LOUIS) “combs through seven different sets of government documents. The seven sets of documents are Congressional Reports, the Congressional Record, Congressional Hearings, the Federal Register, Presidential Documents, GAO Reports, and Congressional Bills & Resolutions.

The search engine allows users to search broadly for keywords or limit searches to a single document set or range of dates. LOUIS, which updates its document depository daily, even allows users to set up a “standing query” as an RSS feed, to get alerts every time Congress or the executive branch takes action that references the subject of the initial query.”

At the federal legislative level, Congress passed the Federal Funding Accountability and Transparency Act, which requires disclosure of all entities or organizations receiving federal funds.

Improving the way we operate state departments of human services is an ongoing priority. We can surmise that transparency will inevitably help us examine ways to strengthen and streamline our departments, improve effectiveness, reduce costs, maximize informed participation, and facilitate state and regional governance.

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This entry is by Daniel Pollack, a professor at Yeshiva University’s School of Social Work in New York City and a frequent expert witness in child welfare cases. He can be reached at dpollack@yu.edu.

This article was originally published in American Public Human Services Association’s Policy & Practice, June, 2011.

NY's $1.4 million per disabled child = death and despair

Today's NYTimes has an excellent article about the horrors in New York's residential care system for the developmentally disabled. Despite spending as much as $1.4 million per resident, the "system" has failed most of its residents with sub-standard care, abuse and death.

These institutions spend two and a half times as much money, per resident, as the thousands of smaller group homes that care for far more of the 135,000 developmentally disabled New Yorkers receiving services.

But the institutions are hardly a model: Those who run them have tolerated physical and psychological abuse, knowingly hired unqualified workers, ignored complaints by whistle-blowers and failed to credibly investigate cases of abuse and neglect, according to a review by The New York Times of thousands of state records and court documents, along with interviews of current and former employees.

Since 2005, seven of the institutions have failed inspections by the State Health Department, which oversees the safety and living conditions of the residents. One was shut down altogether this year.

Read the article on the NYTimes website here.

Sex Trafficking: The Girls Next Door

Vanity Fair has a great story about child sex trafficking and prostitution in All-American Hartford, Connecticut. Here's an edited excerpt of this excellent piece:

There are more young American girls entering the commercial sex industry—an estimated 300,000 at this moment—and their ages have been dropping drastically. “The average starting age for prostitution is now 13,” says Rachel Lloyd, executive director of Girls Educational and Mentoring Services (gems), a Harlem-based organization that rescues young women from “the life.”

The explanations offered for these downwardly expanding demographics are various, and not at all mutually exclusive. Dr. Sharon Cooper believes that “history is repeating itself, and we’re back to treating women and children as chattel,” she says. “It’s a sexually toxic era of ‘pimpfantwear’ for your newborn son and thongs for your five-year-old daughter.” Additionally, Cooper cites the breakdown of the family unit (statistically, absent or abusive parents compounds risk) and the emergence of vast cyber-communities of like-minded deviant individuals, who no longer have disincentives to act on their most destructive predatory fantasies.

Criminals have learned, often in prison—where “macking” memoirs such as Iceberg Slim’s Pimp are best-sellers—that it’s become more lucrative and much safer to sell malleable teens than drugs or guns. A pound of heroin or an AK-47 can be retailed once, but a young girl can be sold 10 to 15 times a day—and a “righteous” pimp confiscates 100 percent of her earnings.

“There are basically two business models: manipulating girls through violence—that’s called ‘gorilla’ pimping—and controlling them with drugs,” says Krishna Patel, assistant U.S. attorney in Bridgeport, Connecticut, who prosecuted the case of New York-based trafficker Corey Davis, a.k.a. “Magnificent.” A high-living, highly educated pimp who kept the slave master’s manifesto The Willie Lynch Letter and the Making of a Slave in his Mercedes, Davis, Patel says, made sex slaves out of, among others, a 12-year-old runaway and a university coed on a track scholarship.

Says Krishna Patel, “I’d always dismissed the idea of human trafficking in the United States. I’m Indian, and when I went to Mumbai and saw children sold openly, I wondered, Why isn’t anything being done about it? But now I know—it’s no different here. I never would have believed it, but I’ve seen it. Human trafficking—the commercial sexual exploitation of American children and women, via the Internet, strip clubs, escort services, or street prostitution—is on its way to becoming one of the worst crimes in the U.S.”

Read the story here in Vanity Fair.

Listen to an interview of the story's author here.

Child Welfare Response to Child Trafficking

Human trafficking is arguably one of the most disturbing human rights abuses of our time. The United States Department of Justice has estimated that between 14,500 and 17,500 foreign men, women, and children are trafficked into the United States each year.

While estimates indicate that thousands of child trafficking victims exist in the United States, very few have been identified and recovered. Between 2001 and 2009, only 212 foreign minors were successfully recognized by U.S. authorities as victims of trafficking.

Human trafficking is a relatively new issue and emerging area of knowledge for most social service, legal, and law enforcement professionals. It was only in 2000 that the first federal anti-trafficking statute, the Trafficking Victims Protection Act (TVPA), was enacted.

Thousands of organizations and agencies are unaware of this law and other state laws that provide critical support and protect the rights of victims. Even fewer have been adequately trained or prepared to respond to child victims of trafficking, and fewer still have incorporated policies, protocols, and case management techniques to appropriately serve this population.

The protection of children has rarely been included in government-funded initiatives to combat human trafficking in the United States. The majority of victims are minors, yet support for this group has not been considered a priority.

The child welfare field is only beginning to recognize the need to prepare for and address the issue of child trafficking. For the past decade, child protection agencies across the United States have been unprepared to address the problem, despite laws requiring child welfare agencies to serve trafficked children.

In 2007, the International Organization for Adolescents (IOFA) developed and launched the Building Child Welfare Response to Child Trafficking project. The purpose of this project is to build the capacity of child welfare agencies and service providers to identify and respond to this often invisible and underserved population. The primary goals are to ensure that children are correctly identified as trafficked persons and that they receive the appropriate protections
and referrals to specialized services to which they are entitled under federal and state laws. This project, supported by funding from the Chicago Community Trust, takes place over a two year period ending in mid-2011.

To achieve these outcomes, IOFA is developing key resources and tools, including the Building Child Welfare Response to Child Trafficking Handbook outlined in this publication. The handbook is a critical resource for state child welfare systems and other service provider settings.