April 27, 2009

Mom and Dad in Cuffs: Arrests in Front of Children

Watching Predator Raw on MSNBC, I watched police shout to a man to hit the ground, grab him and roughly cuff him. It was deserved, as he was being arrested for coming to the home of a 14 year old for illicit purposes. But...it was done in front of his approximately 6 year old child. The child watches in horror as his father is slammed to the ground and cuffed and a female police officer scoops the child up, holding him so that he watches the scene unfold behind her shoulder. I cringed inwardly, imagining the scenario to follow:

- The child waking up in the middle of the night screaming
- The child being terrified when he sees police or people in uniform
- The child clinging to his mother in fear that she too will be taken
- The child exhibiting bad behavior in school
- The child disrespecting authority and possibly growing up with innumerable problems if this trauma isn't addressed, and addressed properly, in a therapeutic setting

Certainly the blame rests on the father for committing a crime and shuttling his young child to the scene of that crime. But could police have mitigated the negative result for this young boy through a few modifications of procedure?

2 million children across the United States have a parent that is incarcerated. A 1998 study showed that 67% of children with a parent incarcerated had witnessed the parent being handcuffed (Phillips, S. “Programming for Children of Female Offenders.” Washington, DC: 4th National Headstart Research Conference, 1998.). Studies show that witnessing a parent's arrest can have long lasting negative effects on the psyche of a child. Post traumatic stress disorder is a common result, and that can lead to a host of adjustment problems if left untreated.

Many police departments do not have protocols for the proper management of arrests in the presence of children, but an increasing number are developing them, often at the demand of state legislatures.

The Family and Corrections Network has developed a bill of rights for children with incarcerated parents that includes the right to be safe and informed at a parent's arrest and calls for the following:

Develop arrest protocols that support and protect arrestees’ children but do not unnecessarily involve the child welfare system and increase the risk of permanent separation.
Training police officers to understand and address children’s fear and confusion when their parent is arrested is an important first step. At a minimum, police could be trained to inquire about minor children, and to rely—in the absence of evidence that to do so would place the child at risk—on the arrested parent as a first source of information about potential caretakers. This would minimize both the possibility of children being left alone, and of children entering the child welfare system unnecessarily when family members or other caretakers are available.

Recruit and train advocates to support children during and/or after a parent’s arrest. The amount of time a police officer can invest in caring for the child of an arrestee is necessarily limited. In any case, when a child has seen an officer arrest his parent, he may be less than receptive to seeing that officer as a source of comfort and aid. To fill the resulting gap, volunteer advocates could be recruited through existing organizations that serve prisoners and their families, or at-risk youth generally.Police could call on these advocates when they have reason to believe a child may be present at a planned arrest, or shortly after an arrest takes place. The advocate would be there to support and reassure the child, and also to assist in finding a family or other informal placement when child welfare intervention is not deemed necessary.

These are interesting points to begin the discussion of proper procedure, but they fail to address some key points.

First, there need to be protocols in place for arrest that permit the most non-traumatic experience for the present child as possible while maintaining safety. Some possible means of achieving this would be:
- attempting to plan pre-planned arrests when a child is not present
- asking the parent to cooperate with the removal of the child from the scene before cuffing, and giving them an opportunity to reassure the child when appropriate
- when necessary to cuff the parent in the presence of the child, explaining to the child that the parent is not being harmed and that the child is safe
- remove the child from the scene as quickly as possible, and provide them with something to distract them from the event (toy, game)
- avoid using flashing lights and sirens, and other loud noises when possible

Secondly, the recommendations of the Family and Corrections Network suggest finding appropriate placement for the child without involvement of child welfare. As well meaning as this is, without the resources that child welfare can provide in screening potential kinship placements, putting a child with an uncle or grandparent could potentially be putting them at risk for other harms. Although placement with a family member can be and should be a priority over foster care, the safety of the child in such a placement must be properly and thoroughly assessed.

Finally, providing advocates to help children through the experience of their parent's arrest is a great idea, but an expensive one. In the absence of such targeted advocacy, police should be trained to provide it at least until child welfare or the other parent can relieve the situation. Common sense, combined with sensitivity training and and procedure that is guided by the advice of child advocates and professionals, can significantly minimize the trauma experienced by children. However, in every case where a child experiences the arrest of a parent first hand, child welfare should be required by state law to enlist the help of professionals in performing a trauma-specific evaluation to determine if the child needs trauma related therapy, and if they do that therapy should be provided. If parents cannot pay for the therapy, then the state should provide for it. Although this is costly on the front end, there is societal savings in the long run because of the high risk that children with PTSD will grow up to be offenders themselves.

April 21, 2009

Professionalism Part Deux (Duh?): Sex Offenders Shouldn't Practice Law

Recently, Eric Gaynor, a Connecticut lawyer was sentenced to five years for receipt of child pornography and running a child porn website. Here's the kicker: he was a former chairman of the Orange Board of Ethics. He currently still retains his law license, though is subject to "sanctions from state disciplinary officials" according to a Law.com article.

The Connecticut Code of Professional Ethics
contains this statement:
A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs.
This is expounded on by Rule 8.4 which provides that it is professional misconduct to

(2) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

Further, the commentary of 8.4 states:

Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving ‘‘moral turpitude.’’ That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
How will the state disciplinary board interpret this rule in this case? To the child advocate, it is clear that the circulation of child pornography is more than moral turpitude. It may be that the board relies on the "repeated offenses" clause because of the number of young boys involved in Gaynor's illegal conduct.

A solution to this intricate dance for Connecticut and other states is providing a clear clause in their professional ethics legislation that sex offenders cannot retain a license to practice law. It is a dark stain on an honorable profession that there might ever be a question of sex offenders practicing law, particularly sex offenders that have preyed on children.

A nation so allegedly outraged by sex offenses against children still seems to provide fairly light consequences to sexual predators. The legal profession should be a leader in changing that trend.

April 16, 2009

Opportunities for Advocacy Activism

White House Conference on Child Welfare
The Child Welfare League of America is asking for support for a White House Conference on Child Welfare in 2010. There hasn't been such a conference since 1970, and it is long overdue!

In addition to being a mechanism to raise awareness on child advocacy issues, such a conference could be the means to better interaction of child welfare agencies, information sharing and broad based problem solving on a host of issues from kinship care to proper CPS protocol. It is essential for the welfare of American children that child advocacy be brought before the President of one of the only developed nations not to sign the United Nations Convention on the Rights of the Child.

The Adam Walsh Child Protection and Safety Act
Oprah is calling for the reauthorization of the Adam Walsh Child Protection and Safety Act. The Act will expire in July 2009. The Act has been criticized for its over-breadth and the effect on low level sex offenders who are also subject to registry, and it is certainly not without its civil rights challenges. However, without its reauthorization there is no strong, federal interim protection for children against sexual predators.

April 13, 2009

Witch Hunt: A Documentary With Some Lessons To Teach

The documentary Witch Hunt had its television premiere last night on MSNBC. The film follows the story of a group of parents in Bakersfield California who were falsely accused of child molestation in the 1980's. The film takes the position that the Ed Jagels, Bakersfield's District Attorney (still), had an overzealous tough on crime stance that led to a "witch hunt" for child molesters. The convictions of these parents have since been overturned, but not until they served between 12-20 years in jail.

From a child advocacy perspective, the film highlights three key issues:

1. It is possible for child protective services to become overzealous and do more harm than good. ( But don't take that too far. )

That sounds like a no brainer, and the concept has been revisited recently by the FLDS debacle in Texas, but this is an important thing to remember. Efforts to protect children from harm should be lauded, and this film sometimes demonizes prosecutors and child protective workers in this case so utterly that it would be tempting for an uninformed viewer to believe that the entire system is always corrupt. This is certainly not true. However, it is a valuable shift from press coverage of abuse that usually demonizes the accused...innocent until proven guilty doesn't seem to apply if the words child abuse or child molestation appear in the charges. It is important for a balanced and just view to prevail, and for the public to begin to better understand the nature of the child protection process.

Society is a "consumer" of the services provided by child protection. We have decided as a whole that we want children to be safe from abuse in their homes, and this is a value that we have backed up with dollars and agencies. However, as consumers we are largely uninformed. The process and procedures through which each state manages its child protective functions remain largely a mystery....and the public only takes note when an extreme case of child abuse fails to be caught by the state agency, such as in a recent case in New Jersey where the Division of Youth and Family Services (DYFS) closed its case not long before the 9 year old boy, Jamal Cruz, was beaten to death by his mother's paramour. Not as interesting for the headlines are the countless stories of dedicated DYFS workers who saved the lives of children who might have ended up like Jamal.

Public interest in how child protective services is managed and run is a crucial element to its improvement. Public education about how to recognize and report abuse is also needed. Little Jamal Cruz must have shown signs of abuse prior to his death, but they went unnoticed or unreported.

2. Unskilled or improperly trained interviewers can create lasting damage to the children they interview on child abuse matters.

One of the most chilling elements of the documentary was the series of interviews with the adults who were once the children who "reported" the molestation. Tapes and transcripts of the interviews with them as children demonstrate that they were clearly coached, led to express that they were abused even after they said they had not been. The now adult accusers spoke of the fact that even now they have trouble with authority figures. One young man said he feared bathing his baby daughter because of what he went through in the investigation of his own alleged abuse as a child. All of them spoke of the horrible guilt they suffered when people they accused were jailed. They recanted their childhood testimony and were instrumental in getting the convictions overturned.

In addition to coaching them in the initial interview, the children were also forced to testify against their parents and neighbors on the stand. When they would testify that nothing happened, a break would be called and they would come back testifying something different.

Of course, since the 1980's strides have been made in developing more effective training for people who question children in abuse cases and in understanding the impact of testifying on a child's psyche. This does not mean that this protocol is always followed. Witch Hunt documents the lasting negative effects of unskilled, untrained and improperly motivated questioning on children.

3. There needs to be oversight built into the system for when personalities or improper procedures dominate and create negative outcomes from child
protective efforts.

How did the Bakersfield DA manage to get away with all this? The Attorney General for California at the time is interviewed in the film and said it takes an extreme breakdown of law and order for the AG to become involved. This actually happened in this case, but the AG's involvement consisted of investigating and issuing a report that improper procedures for child testifying and evidence collection was happening. Although this is of some use to defense attorneys if they can get it into evidence in an appeal, it really had no other bite to it.

An oversight provision needs to exist in every child protective structure that is triggered by events less dramatic than "the extreme breakdown of law and order" or a child's death. Although there are certainly many people out there who complain that CPS is out to get them as a smokescreen against their own misdeeds, there surely must be the occasional case where CPS is indeed to blame for improper handling of a case. It must be made crystal clear within the system how complaints against CPS are to be handled and there must be some oversight from a disinterested party when things go wrong.

Overall, the documentary Witch Hunt tells a compelling and sad story of wasted lives, a catastrophic failure of the system, and the abuse of children not by the accused parents, but by the system. Some of the lessons of the documentary are worth heeding, but it is important also for the public to educate itself in a fair and balanced way about how child protection is managed in their state.

April 9, 2009

Raising the Bar: Professionalism in Lawyers and Judges Dealing with Children

Photo by Naixin

Are professional responsibility standards leaving the needs of children out in the cold?

The plight of the children in Luzerne County brings into sharp focus the need for specific rules of professional responsibility for attorneys and judges involved with children, along with more appropriate sanctions for those who violate those rules. There is a need for an even higher standard of professional responsibility in dealing with children because they are largely voiceless in the system, and only heard through the voice of their attorneys.

In Children and the Ethical Practice of Law, 64 Fordham L. Rev. 1281, 1286 (1995), Bruce A. Green and Bernardine Dorhn write:

It is understandable that prevailing professional norms, as reflected, for example, in the Model Rules of Professional Conduct ("Model Rules"), may not provide any answers, or, if they do, may provide incomplete or inappropriate answers to important questions about how lawyers properly should serve children. By design, the Model Rules state principles broadly applicable to wide-ranging areas of practice, but rarely provide detailed or context-specific guidelines. They assume that lawyers will be able to apply the general principles in particular practice settings.
These are, of course, often erroneous assumptions. The legal profession needs specific rules of professional conduct that address the very unique needs of children in representation.

Theo S. Liebmann writes in his article Confidentiality, Consultation and the Child Client, 75 Temp. L. Rev. 821 (2002):
Today, practitioners and scholars in the field of child maltreatment recognize both that children's lawyers hold unique responsibilities which require abilities and skills more commonly ascribed to mental health professionals, and that competent representation by children's lawyers consequently requires interdisciplinary consultation. The unique responsibilities which children's lawyers must fulfill come in the form of ethical mandates, statutory requirements, and practice guidelines, and range from the implicit duty to communicate with a client in a developmentally appropriate manner,to the practice standard of advocating for appropriate social services on behalf of a client, to the explicit obligation to determine a client's best interests.
Confidentiality in child welfare law is certainly a prickly pear, because in most cases the client is unable to waive confidentiality and their caregivers may be compromised or have reason to withhold information. When child protective services has custody of the child, they then control the output of information, and law guardians may be at their mercy for receiving information, which is also not always optimal when there are adversarial issues between the law guardian and child protective services. Special confidentiality rules in the cases of child clients should be considered by state legislatures so that law guardians have free access to client information without the permission of the family or child welfare agency.

Confidentiality isn't the only matter of concern. Professional responsibility in dealing with child clients has been addressed by the ABA in their Standards of Practice for Lawyers Representing Children in Abuse and Neglect Cases. However, these standards or the principles embodied in them are not universally or even generally adopted into the professional responsibility codes of states or their bar associations. It is arguable that higher standards of professional responsibility should be in place for lawyers representing clients that are incapable of recognizing or voicing that they are being improperly treated due to their minority. The Model Rules call for competent representation of clients, but in cases of child clients sometimes the definition of competency can be unclear. Serious consideration and defining of competency in child representation should be a part of every state's rules of professional conduct.

April 8, 2009

April is Child Abuse Prevention Month

April is Child Abuse Prevention Month and the White House Press Office issued a proclamation, as has traditionally been done by Presidents to commemorate this month.

President George W. Bush's proclamation in 2007 and in 2008 were briefer documents including sentences like "America has a fundamental duty to protect the safety and well-being of its children" and "Children are the hope and promise of our Nation, and our society has a special duty to ensure young Americans get the care and attention they need to succeed in life" but also underscoring parental responsibility for prevention of child abuse. In 2008, the Bush Administration also patted itself on the back for signing the Adam Walsh Child Protection and Safety Act, which has to do with sex offenders that are generally outside the family, not the family violence that the Child Abuse Prevention Month program was originally created to educate the public about.

President Obama's proclamation took a different tone. Some of the important points in it, that may present a picture of the Obama Administration's approach to child welfare issues are:

1. Civic responsibility from private organizations but with funding and legislative support from government.

"Civic organizations and government also have an important role to play. Civic groups offer essential support through education, assistance to those at risk, and treatment for victims. Government at the local, State, and Federal level must provide funding for services, conduct public education projects, and enforce child abuse laws."

2. Parental education within the context of community based programs.

"A well-informed and strong family is the surest defense against child abuse. To help educate and strengthen families, community members can offer their time and counsel to parents and children who may need assistance. For example, parent support groups provide an organized forum for assistance."

3. Child abuse and neglect becoming a community problem and the general public becoming more educated (reminiscent of It Takes a Village?)

"This month, we emphasize the importance of understanding child abuse and the need for all Americans to help families overcome this devastating problem."

"Understanding the forms of child abuse is critical to preventing and responding to maltreatment."

4. The universality of the problem, and underscoring that the impact of abuse and neglect on children is community wide, not merely felt within the confines of an individual family.

"When the child next door is maltreated, we all suffer."

In a sense, Obama's inaugaral speech calling for more public/community responsibility is echoed in this approach to dealing with child abuse, and it does make good sense that communities, rather than big government, should solve the problems as they appear within them. However, the support of legislation and funding (which of course is difficult to get for anything in these economic times...unless you are a bank or major corporation) is needed for communities to successfully administer programs that lead to the prevention of child abuse.

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