|
TPR CASES
Atty. Michael H. Agranoff
NICOLE
Nicole was sexually abused as a child. Sexual abuse is the crime that never
ends; even imprisonment of the offender does little good for the victim. Nicole
grew up with psychological and drug and alcohol problems, and associated with
violent men.
She had a baby. When the baby was 2-1/2 years old, in October, 1999, Nicole got
drunk at a party and left the baby unattended in his carriage in a parking lot.
Nicole’s mother fortunately found the baby and called the police, who called DCF.
The baby was seized, and Nicole was given a court-appointed lawyer.
The court-appointed lawyer refused to communicate with Nicole. He would not
return her phone calls, never wrote to her, and seldom attended court hearings.
He sent a substitute instead, and there is no evidence that he acted on the
substitute’s findings. He never attended treatment plan reviews at DCF. He never
contacted potential witnesses or service providers. He refused to help Nicole in
getting more visitation with her son or in obtaining better treatment. The year
2000 was a very difficult one for Nicole.
In 2001, Nicole turned her life around. Events had apparently given her a
wake-up call. She became more cooperative with service providers, stopped her
substance abuse, improved her appearance, got a decent job which she retains to
this day, and improved her choice of boy friends. She had good visits with her
son. Nicole was well on the road to rehabilitation.
The court-appointed psychologist actually wrote an evaluation report in 2000,
making rehabilitation recommendations, and stating that Nicole should be given
clear feedback on those recommendations. That feedback simply did not happen.
DCF did not communicate with her, and her court-appointed lawyer could not be
bothered, if he had indeed read the evaluation.
Nicole had been taking parenting training from Carla. In October, 2001, DCF
filed a “Permanency Plan” recommending TPR (termination of parental rights). The
judge found that plan outrageous, denied it, and ordered DCF to offer Nicole
specialized training in how to parent the child, who by this time had been
acting out considerably and was very difficult to handle. The “specialized
training” referred, among other things, to the fact that Nicole and Carla simply
did not get along. More on Carla later.
In spite of the Judge’s order, Nicole got no specialized training and was again
sent to Carla, despite DCF’s knowledge of their mutual antagonism. DCF did put
in writing that it would “explore the possibility of individualized parenting
sessions”. Incredibly, DCF actually did nothing; and even more incredibly, the
court-appointed lawyer did nothing, although a letter or motion might have
solved the problem at that stage. Truly a horrific performance; worthy of a “60
Minutes” expose.
The best news is that Nicole actually had a great social worker, Joe. Joe really
advocated for Nicole. He tried to get her more visits, but his management
balked. Joe even called Nicole’s lawyer several times, asking him to help
Nicole! Nothing worked.
Meanwhile, DCF remained committed, on paper, to reunifying Nicole and her child.
Nicole’s individual counseling therapist wrote a letter to Joe, specifically
noting Nicole’s progress and change in life style, and stating that in his
opinion reunification was a certainty. However, like a Watergate shredding, this
letter simply disappeared from the DCF files, as we discovered when the case
came to trial and we subpoenaed the therapist. In my opinion, Joe, a great
person, was ordered to lose it by his superiors, and complied when he realized
where his bread was buttered; this is the reason that I personally will never
work in a bureaucracy again. I would rather be on welfare.
But things progressed, and in March, 2002, DCF put in writing that Nicole and
her child would be reunified by the end of May, 2002, if the good progress
continued.
However, Carla did not see things that way. Carla complained that Nicole had
gotten into an argument with her son during one visit (as what family hasn’t?),
and therefore Nciole should be denied unsupervised visits.
It developed at trial that Carla’s agency had made a great deal of money in
handling problem kids for DCF. It also developed that Carla had placed the child
with a foster parent who was a friend of hers, and that that foster parent was
making the incredible sum of $2,000.00 per month, tax free, for caring for the
child, who had been formally classified as requiring special attention. Again,
another possible scandal worthy of attention.
Despite this, on May 20, 2002, DCF wrote that Nicole had been cooperative.
However, on May 30, 2002, the planned reunification between Nicole and her child
simply did not happen. And Nicole’s court-appointed said nothing and did
nothing.
Throughout the remainder of 2002, Nicole and her child continued to have
excellent visits, and Nicole continued to lead a good life, employed, out of
trouble, well-groomed, and seeing her therapist.
In November, 2002, Joe hinted to Nicole that DCF was planning to file TPR. Quite
obviously, Joe had been told this by his management and, feeling guilty, tipped
Nicole off, hoping that it would be a further wake-up call.
Nicole’s lawyer continued to do nothing. Nicole remained frustrated, knowing
that Carla was sabotaging her, and knowing that she could do nothing about it.
Nicole had followed all of her “specific steps”, which are court-ordered
expectations for persons who want to get their children back. There was only one
problem. In June, 2003, Nicole was arrested for breach of peace. What happened
is that her former boyfriend had harassed and assaulted her, and she struck back
in self-defense. On television, women are applauded for this. But in real life,
she was threatened with jail if she didn’t plead out to the charges. Like most
persons without money, she took the plea to avoid the threat of jail.
Nevertheless, it was a misdemeanor conviction, and was the only excuse that DCF
needed.
In August, 2003, DCF filed the TPR petition. Nicole by now was beside herself
with grief. She was complaining to officials in the court house, and one
excellent State Marshal heard her, took pity, and gave her my name. With her
mother’s help, Nicole scraped the money together and hired me. We prepared for
the TPR trial, scheduled for March, 2004.
Trial preparation is always overlooked on TV and in the movies. Lay persons
sometimes think that it “just happens”. In reality, it is the most difficult
part of lawyering, especially when the facts are scattered in dozens of
different documents and are often in dispute. This is not the time for all those
details, but suffice it to say that Nicole and I went into the case prepared.
Trial was held over four different days in March, 2004. Post-trial briefs were
filed at the end of April, 2004. The Judge was a distinguished and respected
jurist with a patrician bearing.
DCF’s major argument was that Nicole had “failed to rehabilitate.” Nicole agreed
that she had a major problem initially, and she fully owned up to her mistakes.
However, she had overcome her past, we argued, and there was no reason to deny
reunification.
A summary of the evidence follows:
1. Nicole met her specific steps, with minor
and explainable exceptions.
2. Visitations with her child were generally good to excellent.
3. Nicole’s individual therapist, who had worked with her since she was a
teenage victim of child abuse, testified that he would continue to work with
her, and with the child’s therapist, and that she should be able to be an
effective parent.
4. A hospital therapist testified that Nicole was easy to work with, and
cooperative.
5. Carla’s supervisor testified that Nicole has problems when the child is
misbehaving. Yet we discovered a document written recently by Carla, which
stated that the child had been continually misbehaving, even when with the
foster parent. When asked, neither Carla nor her supervisor could explain the
reason; but the implication that Nicole caused or fostered the problem was not
credible.
6. The foster mother testified that the child was “worse” after visits with
Nicole. When asked repeatedly by me in what ways he was worse, she pointedly
could not answer. This, despite obvious preparation and coaching by Carla and
her staff. The foster mother agreed that the child had been misbehaving
recently, but admitted that she sought no extra clinical visits or additional
medications. (We were to use the fact later as evidence that, whatever
Nicole’s problems, the child was no better off with the foster mother).
7. A local respected child visitation agency testified that Nicole was easy to
work with, and was very patient most times with the child’s difficult
behavior.
8. Carla took the stand, in one of the most incredible performances of all
time. Highlights of her testimony:
a. She had written in a report that the child “displayed severe symptoms of
reactive attachment disorder”, or RAD. She repeated that he still has those
symptoms. Yet when asked by me to define RAD, she could not do so. She
admitted that, when she first wrote those words, the child had not been so
diagnosed by a licensed clinical psychologist.
b. She said that Nicole was “not receptive to training”, although other
testimony showed that Nicole was receptive. This was merely a personality
problem between two people that ended up costing one of them her child.
c. She was smug and arrogant on the stand, as if she were above
cross-examination by a lawyer.
d. She blamed DCF for choosing certain psychologists and psychiatrists to
examine the child, yet DCF later testified unambiguously that Carla had made
those choices herself.
e. She admitted that the child was not now in therapy, although he had been
acting out recently, and had no explanation for that.
9. A psychiatrist testified that the child had RAD. Upon cross-examination, he
admitted that his “examination” of the child consisted of a 45-minute
face-to-face meeting, and a review of the report of a psychologist (see
below), plus discussions with Carla and her staff. Never did he speak to the
mother or her attorney. He admitted that the RAD diagnosis requires accurate
knowledge of the history of the case, and admitted that he could not be
certain that the history supplied by Carla’s staff was accurate.
10. A psychologist testified that RAD requires a showing of severe early
childhood abuse or neglect, which ordinarily does not come from one isolated
incident. He said that the child “appeared to have RAD criteria”, but admitted
that his history information came from Carla’s staff and the foster mother. He
had not spoken to Nicole, her lawyer, or her individual therapist.
11. The real zinger was the court-appointed psychologist, Dr. Jones. He
submitted three separate evaluations that said that the child had RAD, and
that Nicole had “borderline personality disorder” (BPD). He testified in
support of those evaluation reports. Highlights of his cross-examination:
a. Dr. Jones admitted that he gathered history information from Carla and the
foster mother, but nothing from Nicole’s lawyer, her individual therapist, or
anyone else who had known or treated her.
b. Dr. Jones frequently opined that Nicole “minimized problems.” When asked,
he was unable to give concrete examples of what that meant, or how it
disqualified someone from being a parent. When told of Nicole’s current
employment and other progress, he shrugged these off.
c. Dr. Jones said that he took Nicole’s June, 2003 arrest into account, but
never asked for or heard the circumstances of the arrest. When told, he was
also unmoved.
d. Dr. Jones had diagnosed Nicole with alcohol abuse in his 2002 report. He
had omitted that diagnosis in his 2003 report. When asked if that showed
progress, he again shrugged it off.
e. When confronted with books and articles by authorities in psychiatry,
regarding BPD, Dr. Jones admitted that his diagnosis could not be sustained by
the accepted criteria. After a lunch break, in which he reviewed his own notes
and other materials, he changed his diagnosis to “mixed personality disorder”.
Nowhere did he explain why he had in three reports misdiagnosed this woman,
even though the books and articles discovered by me must have been known to
him for decades.
f. When confronted with books and articles by authorities regarding RAD, Dr.
Jones testified that his understanding of historical facts were derived from
the foster mother, DCF, and Carla. He admitted that he neither sought nor
received information from Nicole’s lawyer, her family, her individual
therapist, or any other persons. He admitted unawareness of DCF’s very
narratives that stated that Nicole and the child had many good visits
together. When asked if other facts could change his diagnosis, he was
noncommittal.
g. Dr. Jones also diagnosed the child as having “conduct disorder”. When asked
if the child should be getting psychiatric treatment, he responded that
Carla’s supervisor was a psychiatrist. This statement turned out to be untrue.
When told of this, Dr. Jones was unmoved. He never seemed to appreciate the
lack of communication, and miscommunication, upon which his testimony was
based.
h. Dr. Jones was asked directly, by me, if Carla had told him to say that the
child had RAD and that Nicole had BPD. Instead of saying “No”, Dr. Jones said
directly, “I do not recall that.” Anyone familiar with Watergate may draw
their own conclusions. In my opinion, Nicole received a royal zinger from many
experts, with absolutely no help from her court-appointed lawyer.
And that is only “failure to rehabilitate.” DCF
is also required to prove that it made “reasonable efforts to reunify parent and
child.” The prior discussion shows that DCF did not do so. Nicole was given a
parenting counselor who was hostile at best, and biased in favor of the foster
mother at worst. She had no meaningful legal help. Her positive aspects were
intentionally ignored. Reunification efforts?
As to Nicole’s court-appointed lawyer, it is true that “ineffective assistance
of counsel” can get you a new trial in a criminal case, but not in a TPR case.
However, I tried, arguing that at minimum, Nicole deserved another chance. The
former court-appointed lawyer was subpoenaed, and a subpoena also issued for his
files in this case.
He showed up in court, arrogant, argumentative, smirking, and then had the
audacity to say that he had “lost the files.” He never explained why he hadn’t
told me, in the two months since the subpoena was issued, that the files had
indeed been lost.
This man is still actually practicing law.
When the case had concluded, and post-trial briefs submitted, I was confident
that we had won. We desired, not the end of DCF involvement, but the child
returned to Nicole under strict protective supervision for 9 months, with DCF
required to communicate with me, and frequent in-court reviews to assess
progress and to ensure that DCF was not retaliating against Nicole.
Today, I am still confident that we should have won. However, the verdict went
against us. Nicole did not have the tens of thousands of dollars to pursue an
appeal, first in Connecticut, and then possibly up to the U.S. Supreme Court.
She lost her child, permanently.
I hope to heaven that when the child grows up, he will seek out his mother and
learn the truth.
The moral is clear: Get a qualified lawyer on board early.
There are no guarantees, but I believe that this case could have been won in 3Q
2002, or early 2003 at worst. It might have been won even earlier, had I been
the lawyer and able to get rid of Carla.
The interesting thing about this case is that Nicole had three different DCF
social workers, all of whom are personally known to me to be excellent. She was
actually victimized by a venal and biased counselor, a well-meaning but ignorant
psychiatrist, an arrogant and corporate power-crazed psychologist, and an
incompetent lawyer. Truly a group effort.
ROBERTA
This has to rank as my favorite case. A major injustice was corrected, not with
legal brilliance or courtroom tricks, but with old-fashioned getting to the
facts and refusing to accept nonsense. For lawyers: the case shows that you
don’t have to be a genius to win. You don’t need to be 4.0 from Harvard Law, you
don’t need to have Law Review articles published, you don’t have to be able to
understand Justice Rehnquist’s opinions. But you do need a strong desire to get
the facts yourself and work with them.
Roberta and Alex were a middle-class family. He had a very good job, she was a
fine homemaker. Their kids were 16, 11, and 9. The youngest was Carrie; the two
older ones were boys.
The older boy had problems, and one day he improperly touched Carrie. She got
very scared and reported it to a teacher. The Police were called. Then Carrie
said that no, her father Alex had touched her. The Police threatened to arrest
Alex. Roberta had a fit. She knew that it wasn’t true, and that Carrie had had
problems which may have caused her to make a false report. Roberta made a lot of
noise and did everything other than call a lawyer.
The upshot is that she herself was threatened with obstruction of justice. Now
Alex got a lawyer, one of the top criminal lawyers in the State. But matters had
gone too far.
If Alex protested his innocence, the prosecutor threatened a long prison term if
the jury found him guilty. Also, Roberta would be prosecuted and possibly jailed
herself. All the kids would be removed.
There was a simple solution, and you guessed it. Alex pleaded guilty to
something he did not do, to spare his family further trauma. He received a
lesser sentence, and has now been released on parole. No criminal
charges were pressed against Roberta. The older son, by agreement, began to
receive treatment.
What the criminal lawyer neglected to tell Roberta, because he wasn’t aware of
it, was that DCF would now get involved. Which it did.
Carrie was removed from the home and placed with a foster family. Fortunately,
it was a decent family and reasonably nearby. The major reason for the removal
was the usual: Roberta “minimized” the problem by not disbelieving her husband.
Also, Roberta was an arguer, and DCF cannot stand that. The middle boy was
allowed to stay in the home, provided that the older boy moved out, which he
did.
NOTE TO LAWYERS: This is another example of why I am leery of excessive
specialization. It is fine to specialize, as many doctors and lawyers do, but it
is wrong to ignore other aspects of the profession. Legal elements (and
medical/dental elements) are interrelated, as numerous examples show. A Juvenile
Court lawyer still needs to know the basics of divorce, bankruptcy, criminal and
other matters.
If you do specialize, then you at least have to keep up with professional
reading to be informed of developments (cases; journals; occasional seminars).
Sadly, many specialists don’t have the time to do this. Lawyers, unlike doctors,
have no tradition of referring people for second opinions; perhaps they should.
Roberta went to the phone book and hired a family law person. We shall call her
Atty. Stentor. It seemed like a good fit. Atty. Stentor is a formidable woman
who looks impressive and yells and screams and makes a lot of noise. She badgers
and belittles opposing lawyers to their faces. She threatens, makes innumerable
phone calls, and is generally a pest.
The problem is that she can’t accomplish anything.
After 3-1/2 years of trying, Roberta had paid Attorney Stentor $25,000.00, and
was billed another $35,000.00. Thus, total charges of $60,000.00, and no
results. She was no closer to getting her daughter home than when she started.
Roberta did not know how to handle it, but she knew that something was wrong.
She called me, and I told her to bring all her paperwork to the office.
Fortunately, Roberta was the type who saved everything, even in relatively
chronological order. That, believe me, made it much easier to work with.
Roberta came to the office, and I reviewed the file. It was interesting. Among
my findings:
1. Atty. Stentor had held numerous e-mail conferences with various service
providers. In almost all cases, she presented some facts and asked them what
they thought.
One thing you learn in bureaucratic life is never to ask other people what they
think without telling them what you think. They are not going to do your work
for you. They will recognize that you are not comfortable with your case and are
fishing.
2. The child’s therapist, an experienced psychologist, seemed to be suggesting
that the child should start the reunification process.
Yet nothing was being done. There was no formal report from the psychologist.
3. The DCF permanency plan did call for reunification. Yet the DCF social worker
was stalling, and criticizing Roberta at every step of the way. Roberta was
adamant that, contrary to the permanency plan, the social worker told her that
she would never revoke the commitment.
Atty. Stentor never filed a motion to revoke the commitment. In effect, she let
DCF stay in control, for over three years, while billing Roberta for her e-mails
and conferences.
4. The social worker was openly hostile to the Roberta. She even made outrageous
statements in front of the Carrie.
Atty. Stentor did nothing.
5. Roberta had an individual therapist whom she saw regularly. She attended
meetings at the Carrie’s school. She also interacted well with the foster
parents.
Atty. Stentor had none of this in her documentation. She was apparently not even
aware of the school interaction.
6. Carrie had a court-appointed attorney and a court-appointed GAL (Guardian Ad
Litem), also an attorney. They had never once seen Carrie, been to a conference,
spoken to the school, or interviewed Roberta or the foster parents. Not once.
Atty. Stentor never even tried to get them involved.
It became clear that the entire basis for DCF’s attitude was its belief that
Roberta had “chosen” the father over the child. This is an integral part of DCF
culture, no matter what the DCF Policy Manual says. If sexual abuse by one
parent is alleged, and the other parent does not immediately throw him or her
out the door, then DCF will never cooperate with the other parent.
I began writing to DCF, demanding to know what Roberta was not doing that she
should be doing, or what she was doing that she should be doing. Incredibly, the
social worker, apparently knowing that the jig was up, refused to respond to me.
Stonewalling lawyers is an old bureaucratic trick, designed to frustrate them
and make them go away. In this case, I wrote to the supervisor, and when that
didn’t work, I wrote to the DCF Ombudsman in Hartford. That was enough, and it
was not necessary to go to the Commissioner directly. I have no idea if the
worker and her supervisor were chastised, or had notes made in their personnel
files; but I certainly hope so.
This is as good a time as any to note the obvious. The DCF social worker clearly
believed in her heart that Roberta should not have Carrie back, and acted to the
best of her ability on this good faith belief. It is similar to a police officer
who is certain that an accused is guilty, and will plant evidence, or withhold
exculpatory evidence, to ensure that “justice” is done, despite any “lawyer’s
tricks” that might be pulled. I have no malice toward this worker; but it does
illustrate the need for due process and fair dealing. Almost no one starts off
being a tyrant; everyone tries to do the right thing. But “right” is determined
by law, not your own prejudices.
It’s an awfully hard sell, especially to people not used to being questioned.
I called the psychologist and scheduled a visit at her office. The psychologist
was very cooperative and repeated her agreement that unsupervised visits, and a
definite reunification plan, should begin right away. However, she was reluctant
to put that in writing, even though she had believed it for at least two years.
I myself do not know exactly why she was reluctant, but I suspect that it was
due to pressure from DCF.
Therefore, I drafted the letter for the psychologist, based on her own
statements, and sent a copy to DCF and the other lawyers. This got her to move:
she wrote her own letter two weeks later, and it was our smoking gun.
I also contacted the treatment school, where Carrie went twice a week, and
obtained their treatment plan, which was very favorable. I contacted the foster
parents and summarized their statements. Also, I got statements from the
mother’s individual therapist.
I pressured the lawyer and the GAL to visit Carrie. To anticipate their excuses,
I gave them the address and phone number and e-mail of the foster parents. I
secured the foster parents’ agreement to cooperate. There was no way out, and
they were forced to conduct a visit.
The foster parents were always invited to PPT’s at Carrie’s regular school. I
made sure that Roberta went to the next PPT at that school, and I attended, to
ensure that she would not be nervous and that her rights were protected. We made
good contact with Carrie’s special education supervisor. We were able to use
that supervisor as a good reference also, especially to counter DCF’s standard
assertion that Roberta “minimized” Carrie’s needs.
Then, the big day. A motion to revoke the commitment was drafted. It included a
motion to order DCF to provide services, as I knew that DCF would never actually
help Roberta without a formal court order listing absolutely specific steps.
The motion recited everything listed above, and included the psychologist’s
report. It included improper actions by the social worker. It included what
lawyers call an “offer of proof”, that is, what I expected witnesses to say at
trial. It includes treatment plans from Carrie’s school. It frankly and
unashamedly confronted the issue of the alleged abuse. The motion text was 8
pages, with a dozen pages of attachments actually showing our evidence.
When we got to court, DCF suddenly dropped its opposition to revoking the
commitment, and dropped any plans for TPR. It was apparent that the Assistant Attorney General, upon reviewing
the motion, had a fit, called DCF, and advised them to cooperate.
And cooperate they did, albeit reluctantly. Three months later, the child was
returned home under protective supervision. It was set to expire in a few
months, meaning that DCF would be out of the case for good.
But DCF did not give up so easily.
The DCF social worker (the same one; she was never changed) started verbally
harassing Roberta because she did not attend a class for “sexual abuse
non-offenders” at a local clinic. DCF said that it had set this class up for
Roberta, to help her “better understand the issues”, but that Roberta had failed
to attend, despite numerous warnings. DCF was threatening to extend the
protective supervision, or even revoke the commitment.
DCF had not had the decency to advise me of this problem, but Roberta did. I
wrote to the clinic, which confirmed Roberta’s story: the class was to be held
at the discretion of the clinic, and they simply did not have the enrollment yet
to justify holding the class. So, no class; but they would let us know.
I sent this to the social worker in an e-mail. No response; but she continued to
harass Roberta. I sent it to the supervisor, who called me and claimed she would
“check into it.” I told her that was not enough; she would have to change the
worker. At that, we got into a dreaded telephone argument. I wrote to the Area
Director, who was useless. Then I wrote to the Ombudsman, who by now must have
been wondering what was going on in this case.
Finally, DCF relented, and agreed that protective supervision could end as
scheduled.
During this episode, I had again asked Carrie’s lawyer and GAL to get involved.
They declined to do so. They were very polite; they just wouldn’t act.
Carrie is now doing fine at home. She is also making satisfactory progress at
her new school. She continues to see her therapist, and there are family therapy
sessions also. A few score hours of hard work overcame 3-1/2 years of inaction
within a matter of 7 months.
Roberta’s e-mails to me make me happy to be a lawyer. I am sorry for what she
and her family went through. And, of course, it’s no one’s fault; that’s the
system.
And Atty. Stentor is still busy practicing law. There is no redress. Legal
malpractice is almost impossible to establish in a field like DCF/Juvenile Law,
which is very new. Very few judges and juries would know how to handle it. A
grievance would take years to pursue and only end up frustrating the
participants.
One bit of good news. Attorney Stentor wrote to Roberta and asked for her $35,000.00. Roberta
gave the letter to me and I wrote to her. I asked for a copy of the Fee
Agreement, as I had found none in the files. I also asked for an explanation of
the reasonableness of a bill for $60,000.00 for accomplishing nothing in over
three years.
Atty. Stentor did not reply. And so far, she has filed no lawsuit for
collection.
ALICE AND PETER
When the entire world tells you that you’re wrong, it’s a good bet that you are.
But a good bet is
not necessarily a sure thing.
I got a call from Alice and Peter in early May, 2005. DCF had taken their kids
and wanted to
terminate their parental rights (TPR). They were on their third lawyer,
privately-paid, and that
lawyer was just agreeing with the State. He would not help them, and they were
desperate.
Would I meet with them?
I did. They paid a nice retainer, I went to the Court, filed my in-lieu
appearance to replace their
current lawyer, and reviewed the file. It looked like an encyclopedia, with
documents going back
about six years. But the gist of it was this:
- Alice had a long-standing drinking problem, minimized it, and refused to
cooperate
with treatment.
- Peter was violent towards Alice, and the kids (Hank and Sharon) witnessed
that.
- Both parents refused to properly supervise the kids. Hank, age 10, was
traumatized.
Sharon, age 14, was parentified. Both were afraid of their parents.
- The kids had been removed before, the family straightened up a bit, and the
kids
were returned. Then they relapsed and the kids were taken.
- The kids were placed with Alice’s mother, whom Alice positively hated, thus
making
the situation even worse. Alice said her mother had been abusive to her as a
child; the mother
said that Alice was just difficult; and of course there was no agreement.
- The parents had not had 3 lawyers; they had had 5 prior lawyers. So I was the
sixth
one on the list. [As every law office management manual will tell you, this is a
no-brainer sign
to not take the case].
- The court had already found that further efforts to reunify the children with
the
parents were not appropriate. Even their daughter, Sharon, had been allowed to
testify against
them at a prior hearing; and really gave them what-for.
- Alice was an unrelenting arguer. No matter what service was offered to her,
she
argued and debated with the providers, driving them to despair. No one would work with her.
Peter was lower-key, and could not control her.
And that was just the court file. At a case status conference, I got worse of an
earful:
1. According to the AAG (Assistant Attorney General) representing DCF, TPR was a
virtual certainty.
2. Hank and Sharon had separate lawyers. Sharon’s lawyer positively hated Alice
with a
passion, and had little use for Peter. She would do everything that she could to
end parental
rights. Later on, when we discussed keeping Sharon with her grandmother and
simply
transferring guardianship, the lawyer was still not placated. She stated that
TPR was necessary,
to “stabilize” Sharon, and ensure that Alice could never even ask for
guardianship back. It was
totally vindictive, but illustrated how the legal community was allied against
these parents.
3. Hank had both a lawyer and a Guardian Ad Litem (GAL). Both hardly ever saw
Hank,
but were satisfied that DCF was doing the right thing.
4. The kids had the same therapist, whom we will call Ms. Smoothie. She insisted
that
the kids had told her that they wanted TPR from both parents.
That is what I walked into.
The latest case document in the file was a “Social Study Addendum” dated April
11, 2005. It was
22 single-spaced typewritten pages. I read the document, which apparently the
prior lawyer had
not done, and found two possible smoking guns:
1. On pages 4-5 of the document were a few paragraphs stating that Alice was
meeting
with a psychologist, whom we will call Dr. Jung. Dr. Jung said that he was
working with Alice to
manage her emotional problems and had made great progress. He also worked with
Peter. Dr.
Jung believed that their prognosis was good, and that family reunification might
be possible.
The document went on to list other doctors who allegedly said that the couple
was hopeless. What is strange is that Dr. Jung’s observations were mentioned,
but then not
considered in the document summary or recommendations.
2. On pages 20-21 of the document was the incredible admission that Ms. Smoothie
had
actually discussed TPR with both kids, that the kids agreed, and that she
thought it was the right
thing to do.
Lay persons might need an explanation. TPR is considered an “adult issue”, and
it is normally forbidden to discuss adult issues with kids in the Juvenile Court
system. Parents
who do so run the risk of severe sanctions. Yet this therapist not only did so,
but trumpeted the
fact. She pursued legal issues that she barely understood, and that a
10-year-old boy certainly
did not comprehend. Further, even though TPR is an “ultimate issue” to be
decided by a judge,
DCF tried to pressure the judge into accepting this expert’s opinion in a
supposedly objective
document.
Armed with these meager weapons against a battalion of experts, lawyers, and
social workers, I
actually spoke to Dr. Jung. I obtained and read the DCF “narratives” and other
reports. It
turned out that Hank actually wanted to be with his parents, but was being
talked out of it by
Sharon and his grandmother, and then by Ms. Smoothie. I will say this for the
DCF social
worker: she herself made a brave attempt to at least appear neutral, although
she had to print
what her management ordered her to print.
I fought the matter in court, filing motion after motion. I insisted that Hank
not be brainwashed,
and be allowed better visitation with his parents. I got Dr. Jung’s additional
written opinions to
the court and to the other lawyers; DCF had simply ignored him, claiming that
they could not
reach him; and the parents’ lawyer had done nothing. I insisted that Hank’s
lawyers actually visit
him. Instead of accepting the contention between Alice and her mother, I tried
to mediate the
action and not make it worse.
I asked for and got a hearing on better visitation. Dr. Jung was subpoenaed.
When DCF saw
him in the hallway, waiting to testify, they dropped their opposition. It was
small, but a start.
I got DCF to stop harassing Alice and Peter and to go through me if they needed
anything. That
included conferences, visits, and signing releases. This had been a major
stumbling block in the
past. Most of all, I forced DCF to admit that their two major arguments no
longer applied:
1. Alice had been substance-free for three years.
2. The couple had had no incidents of domestic violence in 3-1/2 years.
DCF knew both of those facts, but had ignored them. And the kids’ lawyers cared
not a whit.
The jig was almost up. It was obvious that DCF favored TPR, and was pressuring
the kids to tell
the therapist that, so that she could testify that it was in their best
interest. But Matthew refused
to do so, despite enormous pressure brought on him. And DCF could not any longer
deny the
great progress that the couple had made.
DCF, actually being most reasonable, decided in early 2006 to drop TPR. (This
social worker
really was patient and excellent, and I guess her management had had enough of
me.) We all
agreed that Sharon should remain with her grandmother, and that Hank should be
gradually
reunified with his parents. Meanwhile, Alice got pregnant, and was terrified
that DCF would
move on the new baby. (Fortunately, through active intervention, we assured that
that did not
happen).
But, as previously mentioned, DCF’s decision did not placate Sharon’s lawyer.
She forced DCF to
reinstate the TPR for Sharon.
You might wonder how she could “force” this. Very simply, when DCF announced at
a
case conference that it was not pursuing TPR, the lawyer said that if they
dropped it for Sharon,
she would file it on her own. In my opinion, it was an idle threat, and I don’t
think she would
have won without DCF support.
However, this lawyer had her own smoking gun. Sharon had asked that Alice return
a
teddy bear that was hers as a child. Alice did not want to return it, fearing
that it would look as
if she were “giving in”, and insisting that it was not Sharon’s anyway.
Unbelievably, Sharon’s
lawyer took the matter to court, and a Superior Court Judge ordered that Alice
return the teddy
bear to this 14-year-old girl.
Alice, against my advice, did not return the teddy bear. (I told you she was
argumentative). She was duly brought back to court on a contempt charge. At the
hearing, Alice said that the dog ate the teddy bear. The Judge said that she did
not believe her and found her in contempt of court, but did not assess a fine.
That contempt finding was enough to convince DCF to give in to Sharon’s lawyer.
A TPR
trial for Sharon only (not Hank) was scheduled. The TPR Judge was, of course,
not the same
Judge who had issued the contempt finding.
And so TPR went forward over a teddy bear for a teenage girl. And the taxpayers
of
Connecticut have no idea how their money is being wasted.
To be fair and balanced: the contempt judge chastised me from the Bench for not
taking
the teddy bear incident seriously. She looked at it as both Alice’s disrespect
to the court, and
intentional aggravation of a vulnerable teenage girl. And this Judge is smarter
than I am and
may be right. However, having been raised in the 1950’s, when parental authority
meant
something, I looked at it differently; but was forced to keep my opinion to
myself.
And thus Sharon’s TPR trial was scheduled.
At the TPR trial for Sharon, we produced several experts who stated that TPR was
not a good
idea, especially as reunification for Hank was progressing. Even Alice’s mother,
Sharon’s
custodian of several years, stated that she would be happy with a simple
transfer of
guardianship! Even Ms. Smoothie was equivocal on the subject. But Sharon herself
was again
allowed to testify, and asked for TPR; although it was clear, at least to me,
that the girl was
immature and had no idea what she was talking about.
Unbelievably, the Judge granted TPR. It was not the same Judge who had chastised
me. I think he just wanted to end that chapter
and move
forward. And I can understand that, even if I disagree with his decision on
legal grounds. This
is a very fair and well-respected Judge, who had to have heard the experts; so I
must assume
that he made the “practical” decision.
On October 27, 2006, some 17-1/2 months after I was hired, Hank was returned to
his parents.
He and his new baby brother are happy. He still gets to see his sister Sharon,
and he goes to
therapy. DCF is finally out of their lives.
At the last court hearing on Hank, the Judge (different from the above judges)
openly
commended the parents for their progress. Alice was visibly gratified. I could
have cried for joy.
To repeat what was said above: even when it is almost certain that you will
lose, you might still
prevail. A good soldier, as Napoleon said, needs two qualities: courage and
perseverance.
I hope that, in years to come, Sharon will realize that kicking her parents when
they were down
did not accomplish anything positive. I pointed out at trial summation that when
Sharon grows
up and has kids of her own, and there are the inevitable problems, her part in
the TPR of her
own parents might negatively affect her ability to handle the situation. No one
knows.
It also need hardly be added: five ineffective lawyers did not help Alice and
Peter. If you have a
DCF problem, get a DCF defense lawyer.
Alice and Peter are imperfect people to be sure. That is beyond doubt. But Hank
would have
been slaughtered if his TPR went forward. That is something that social workers
should
remember when they pressure parents who don’t have adequate legal
representation.
Postscript: Alice and Peter have since had
another kid! And, DCF is leaving them alone.
HORACE AND SHIRLEY
This is a “Story of Nicole” with a reasonably happy ending. The parents were
vindicated after an agonizing struggle, which will no doubt leave lasting scars
on them and their children. The case should remind everyone, especially lawyers,
of why we have the presumption of innocence in America, even for unpopular
characters.
Sadly, the lesson may not take. Because it’s Juvenile Court, there will be no
movies (like “Hurricane”) celebrating the eventual victory of an innocent man.
Horace and Shirley were lower-middle-class parents living in a poor area in
Eastern Connecticut. They had three children, ages 5, 1-1/2, and 1 month. One
day Horace came home and found the family in crisis. Billy, the 5-year-old, said
that the adult neighbor, a family friend, had sexually molested him.
Horace called the police. The neighbor was questioned. Horace was also
questioned, as were others. No arrest was made. The families began arguing back
and forth, and then an uneasy peace settled on the neighborhood.
A State Police Trooper continued the investigation. He spoke to the parties
involved a few more times. He spoke to Billy alone. Finally he said that Billy
told him that the father, Horace, was the molester all along.
The Trooper threatened to arrest Horace. DCF was called.
Horace turned out to be a less-than-stellar character. He had served time about
ten years earlier for molesting his daughter from a previous marriage. The
family was always behind on their rent. They were unattractive and unpopular
characters.
DCF removed all three children under an OTC and filed neglect petitions. Horace
and Shirley were given separate court-appointed lawyers. They saw the kids an
hour a week or so, and Horace’s visit was closely supervised.
Meanwhile, Horace was never arrested. There was simply no evidence against him
that was enough to convince a prosecutor or a judge that a warrant should be
issued. Billy had flatly refused to ever say anything against his father, and no
other evidence could be found.
That did not deter DCF, however.
The case proceeded in Juvenile Court. Horace and
Shirley had their lawyers, but the lawyers never did anything. DCF had the
parents going to various evaluations, and the lawyers never got involved.
Meanwhile, the children remained in State care and allegedly got counseling.
Horace continued to maintain his innocence. He would not admit to any
wrongdoing. He and Shirley were livid that the neighbor was free, and insisted
on their version of what Billy had told them.
DCF pressured Shirley to leave Horace, hinting that she would get the kids back
(or at least the two younger ones) if she agreed. She refused to do so.
Courageous or foolish; you decide.
Finally, with no agreement, the neglect case was scheduled for trial. When the
trial was two weeks away, Horace and Shirley called me.
When Horace and Shirley came in to see me, I reviewed the DCF paperwork and
heard their stories. I asked about the upcoming trial.
That’s when I was floored.
Shirley’s lawyer had refused to meet with her. She did agree to see her the day
before the trial to go over a few things.
I could not believe it. I asked Shirley what witnesses the lawyer was planning
to call, and what evidence she was planning to introduce. Shirley did not know,
and reiterated that she had never reviewed the case with her lawyer, but had
simply said a few words to her in the courtroom lobby.
I told Shirley that if they lost, DCF would immediately file for termination of
their parental rights. What was the lawyer planning to do? Shirley said that’s
why she called me.
And this was an experienced Juvenile Court lawyer, a former friend of mine who
was known to be reasonable and competent. I wrote to her and asked if this were
really true. She refused to respond to me. I wrote again. She said that I could
call her up to talk if I liked. But she refused to deny that she was planning to
go to court “cold”.
Of course, no lawyer in the world can possibly prepare for a case like this on
one day’s notice. Unlike the TV lawyers, there is simply too much to do.
Horace’s story was worse. He had also never spoken to his lawyer, except for
chitchat in the courthouse lobby. He had never been to the lawyer’s office, and
the lawyer had never been to his home. Nothing.
Horace also explained that he had not molested his daughter years ago, but was
talked into pleading, to avoid a longer prison term, in the course of a domestic
dispute with his former wife. He claimed that his daughter, now a young adult,
would admit that her mother had coached her. Of course, I had no personal
knowledge; but this sort of thing is not unknown to happen.
I asked Horace if the lawyer planned to cross-examine the State Police Trooper.
He didn’t know. I asked if the lawyer planned to review DCF narratives and hit on
inconsistencies. He didn’t know. I asked if the lawyer planned to call any
witnesses. He didn’t know. However, the lawyer had no plans to meet with him,
and the trial was coming up soon.
I wrote to this lawyer also and politely asked if it were true. What was his
side?
Two days later, my secretary said to me, “What is the matter with Atty. ---“? It
turns out that he called the office, screamed at her, demanded to speak to me,
and when she asked the subject, said “He will know” and slammed down the phone.
Undeterred, I wrote another polite letter, explaining that I do not conduct
telephone arguments, and asked what his side was. He never responded, and we
have never discussed his side. I still see this lawyer in court, and he will
grunt at me if we are on the same case, but that’s it.
I filed an appearance to represent both parents, and asked for a long
postponement in the neglect trial so that I could be prepared. A court hearing
was scheduled. The Judge granted the postponement, without anyone objecting. The
State, however, objected to my representing both parents.
This is a common DCF trick to make representation less effective. You might
think that having two lawyers for the parents instead of one would be more
effective. That would be true if they were both in the same office, or both
dedicated to working together. However, a court-appointed lawyer is not
generally going to work with a privately-retained lawyer in a compatible manner.
With different offices, different styles, and different philosophies, two
lawyers are useless.
The State’s technical rationale is that the parents have adverse interests.
After all, mom might get the kids if she left dad. That is true, of course,
except that the adverse interests were created by the State itself! However,
nothing fazes DCF once its mind is made up.
Good news tentatively. The Judge overruled DCF’s objection. I proceeded to
prepare for trial, representing both parents.
I won’t go through the details, but it took dozens of hours of painstaking work,
sifting through documents, writing, requesting, calling witnesses, and trying to
get at the truth.
Finally the day of trial came. But it was not to be. A different judge read the
papers and said that he would not allow the same lawyer to represent both
parents. He used the standard argument stated above. When I reminded him that a
previous judge had ruled on the matter, he snarled and said that he would have
none of it, and that was that. He appointed a lawyer for the mother, and the
case was postponed for several more months.
I got in touch with the new lawyer. He was a decent sort who had won a few tough
cases. I thought this might be good news. We e-mailed details, and he agreed to
meet me to review the case in detail. Trouble was, we could never agree on a
time, and I was getting nervous. Finally we settled on a Saturday, at 11am, nine
days before the trial was due to start. We would meet at my office, then located
in Stafford.
At 10:45 am that Saturday, he called me. He said, “I didn’t realize you were in
Stafford. I thought it was Stratford. Anyway, it’s too far, and I can’t get
there. No more time, but I’ll see you at the trial.”
No, I am not making this up. In Juvenile Law, there is no need to make things
up.
We finally got to the actual trial. For all the ballyhoo and seriousness of this
case, it was really fairly simple: did the father sexually molest his young son
or did he not do so? There were no serious issues of drinking, domestic
violence, filthy home, or anything else that would even remotely rise to the
level of removing the kids. It all came down to the molestation.
And there remained no evidence. The kid refused to tell his own therapists that
his father molested him. There was no physical evidence that the father had
molested him. Several character witnesses testified that Horace was a good
father who got along with his son.
The Judge refused to allow the now-adult daughter
from a prior marriage to testify. He also allowed evidence of that conviction,
over my objection, to be mentioned at trial. He allowed a psychologist, over my
objection, to testify that Horace met certain criteria for sex offenders. But
there was no actual evidence – save for a Connecticut State Trooper who said
that the kid admitted it to him.
That was the State’s case. This one State Trooper, who apparently knew something
that absolutely no one else knew.
When the Trooper was ready to testify, I made my objection. I had written a
10-page brief supporting my objection to that hearsay evidence.
The Judge’s response? He was livid. Livid at me for raising the objection at
trial, and not in advance in what lawyers call a “Motion in Limine.” I told the
Judge that I was not going to tip my hand and let the State find a way to
circumvent my legitimate objection. The Judge castigated me for “wasting time”,
as if my client’s time, to say nothing of his well-being, had not been wasted.
Later on, I asked several experienced lawyers. All said the same: I was under no
obligation to file the Brief ahead of time and tip my hand. Everything in my
hearsay objection was proper; I simply took the trouble to also put it in
writing. The Judge, in my opinion, was flat-out wrong; although it was obvious
to me that his mind was already made up.
The Judge recessed Court until the next morning. He then overruled my objection
and let the Trooper give his hearsay testimony of what Billy had allegedly said.
I was absolutely floored. This Judge’s bias was so obvious, it wasn’t even
funny. Most biased Judges, I must say, make a decent effort to hide their
feelings, but not this person.
The Judge did not even consider the arguments in my Brief. He used the “residual
exception”, which essentially states that he can do anything he wants. He said
that the Trooper’s evidence would be “credible”, and therefore should be
admitted; after all, this was a Juvenile proceeding, not a Criminal proceeding.
If any lawyer wants a copy of that Brief, please ask for “Horace and Shirley
Hearsay Brief”, and I will provide a redacted copy.
To make matters worse, Shirley’s lawyer, the absentee counsel, argued that she
should be free to leave her husband for the sake of the kids. This is not what
Shirley wanted, and the lawyer’s conduct constituted a grievable offense; but he
knew that Shirley was meek and would never complain. And she didn’t.
Not surprisingly, all three children were adjudicated neglected. They would
remain in State custody, and a TPR trial would be scheduled.
More fun began. I told Horace that I was certain we would win an appeal.
However, the money to appeal, and then fight a TPR (which the State was doing
regardless) would be overburdening; not to mention that he already owed me over
$20,000.00. Horace responded by calling me a crook, firing me, and then
declaring bankruptcy.
I told you he was an unpleasant fellow.
Now Horace got a court-appointed lawyer for the TPR trial. But luckily, he got
one of the best.
She told me the results a while ago.
The State presented essentially the same case that it had presented at the
neglect trial. A different Judge also allowed the State Trooper to testify. But
at the end, the Judge said that there was no evidence against Horace, other than
the Trooper, and she simply did not believe the Trooper. The TPR petition was
denied.
I would have given anything to be there.
Yes, I knew the Trooper had lied, but I was ashamed to say so. I did not want to
believe that a Connecticut State Trooper, a high-prestige law-enforcement
official of my beloved State, would do such a thing, especially under oath in a
court of law. I had, and continue to have, the greatest respect for the
Connecticut State Police. But I caution people to remember that State Troopers
can commit crimes also.
As in the O.J. Simpson case, the police officer sincerely believed that the man
was guilty, and was not going to let him escape on a technicality.
And it was easy to believe him. He was a fine-looking young man, the very image
of a State Trooper. As mentioned earlier, Horace and Shirley were, at best,
unattractive characters. We in America have a habit of believing that attractive
people are better than unattractive people; they are better adjusted, more
honest, better workers, more friendly, and in general just make us feel good to
have them around. Erin Brockovitch was a plain-looking woman. To make her seem
believable, the producers cast Julia Roberts in the movie. Doris Day played
Calamity Jane, one of the homeliest women who ever lived. A rather sad
commentary on our educational system.
Back to Horace and Shirley. They won; and the Judge, knowing DCF’s bias, crafted
detailed orders with frequent in-court reviews to ensure that the children would
be returned to them, after an absence of almost four years, in an orderly and
therapeutically-proper method.
And I never got my 20 grand.
It is really frightening. What if, by the luck of the draw, Horace and Shirley
had not gotten a courageous Judge? But nobody cares, and with confidentiality
rules, the press will not touch the story. DCF goes on about its business. And
you hope that the kids are not too damaged. And if they are – well, don’t try to
sue the State.
And Atty. Absentee still gets his name in law journals now and then.
And if these folks had called a lawyer when Billy first made his
accusations....?
|