by Allie Parker
Health Impact News
When a medical doctor bridges the line of physician and law enforcement, which many, if not all, child abuse physicians do, the rights of families are not only often violated, but they are blatantly disregarded.
The first violation after the accusation is made is the disregard of the presumption of innocence until proven guilty.
Once a medical doctor makes the “diagnosis” of child abuse, it is not just a diagnosis; it is actually the accusation of crime.
This accusation, stemming from the knowledge, experience and expertise of a child abuse pediatrician has now damned a family into guilt, until they can prove their innocence.
As we have previously reported here at Health Impact News, Child Abuse Pediatricians are making legal accusations based on only medical evidence, and not on forensic evidence, which is the kind of evidence non-medical detectives trained in law enforcement have to rely upon to get a conviction for child abuse in a court of law. See:
Has the U.S. Become a Medical Police State? How Doctors Deny Due Process to Kidnap Children Through CPS
The Supreme Court is sympathetic to the need for counsel in criminal cases, but often denies legal assistance to civil cases, where the termination of parental rights is most often decided.
This leaves the burden of finding and retaining counsel, finding and paying experts to review their case and testify, up to the families themselves.
The law does not generally recognize the constitutional right to a court appointed attorney in a civil case, whether they are the plaintiff or the defendant.
McMillin Indigent Defense Bill, which was signed into law in Michigan by Governor Snyder (HB 4529) in 2013, only applies to criminal cases.
Parental rights to receive counsel in Termination of Parental Rights cases is left to the individual state legislatures or determined by the trial court on a case-by-case basis, which leaves the right to counsel on many states inconsistent.
Rights to representation are available again on a case-by-case, state-by-state, and court-by-court bases, but if the Termination of Parental Rights petition is brought against a parent by a “private party” (i.e.: foster parent), the right to counsel is then left to the trial court, which usually denies the parents the right to counsel.
This leaves the parents to defend themselves in the complicated judicial system, while faced with the potential loss of their child.
In Lassiter vs. Department of Social Services, the presumption against the right to counsel should be determined on a case-by-case basis using the due process balancing test. This gives a very vague guidance for determining whether an indigent parent has the right to counsel.
In a recent study conducted by Martin Guggenheim and Susan Jacobs, the multi-year study of child welfare cases in New York City courts evaluated whether the kind of legal representation provided to parents can make a difference in case outcomes.
Reported to be the largest study of parental representation in family court ever conducted, it traced the outcomes of 9,582 families and their 18,288 children through a four-year follow-up period.
The study compared case outcomes based on whether parents were represented by solo practitioners (panel lawyers) or by professionals who are part of a multidisciplinary law office that includes lawyers, social workers, and parent advocates (multidisciplinary representation).
Some of the key findings are:
- Reduced time in care: Multidisciplinary representation reduced children’s time in foster care by nearly 4 fewer months. This amounts up to nearly $40 million annual savings in foster care board rates for New York City.
- Child safety: Children were just as safe with multidisciplinary representation. Representation type did not impact whether children experienced a subsequent substantiated report of child maltreatment during the 24 months following the petition filing.
- First-Year Reunifications: Giving parents the right kind of legal team means families are reunited significantly sooner than would otherwise happen. The multidisciplinary family defense offices secured the safe return of children to their families approximately 43% more often in the first year than the solo lawyers.
- Second-Year Reunifications: The multidisciplinary family defense offices secured the safe return of children to their families 25% more often in the second year.
- Higher Rates of Kin Placement: The family defense offices allowed children to be permanently released to relatives more than twice as often in the first year of a case and 67% more often in the second year. These families may otherwise have been permanently dissolved or the children may have spent their childhood separated from their family and aged out.
- First-Month Reunifications: 17 percent more children would be reunified within a month if their parents had multidisciplinary representation than if represented by panel lawyers.
- First Six-Month Reunifications: 27 percent more children would be reunified with their families within six months if their parents had multidisciplinary representation than if their parents had been assigned panel attorneys.
- Guardianships: Of those children who could not be returned to their families, 40% more children ended up with a permanent disposition of guardianships when their parents had multidisciplinary representation than children whose parents were represented by panel lawyers.
In Texas, family code 107.013 grants or withholds the right to counsel depending on the mere initiator of the suit.
Supreme Court decision on Lassiter vs. Department of Social Services is being interpreted differently in every state and court. This is leading to the lack of counsel to any indigent parent in a Termination of Parental Rights petition.
Professor Vivek Sankaran, Clinical Professor of law at University of Michigan, states in a blog post:
I began seeing parents as sources of great strength in their children’s lives and also as victims of broader societal ills like poverty, homelessness and mental illness, that had been unaddressed by the government.
But this perspective hardly came up in my casework. What these parents needed more than anything were strong advocates to tell the untold stories in juvenile court, those involving the many strengths of the families before it.
Without these stories, I realized we would continue to fail children. (Source.)
It is clear lawyers and advocates are seeing the demise of families rights in regard to family courts. The rights of families need to preserved not only by attorneys and family advocates, but by the government who claims to uphold the rights of its people.
The big question is, who is indigent and who is not?
With the possibility of over $100,000.00 in legal and expert witness fees, what family is considered indigent? If they weren’t indigent before the accusation, they certainly will be after.
In order to qualify as indigent, the courts require the accused to fill out forms, and provide proof of being indigent. All of this takes more time; time the parents and individuals in these kinds of cases seldom have.
Having representation is significant at any of these proceedings, the first of which is usually to determine visitation while the petition to terminate is being processed.
Without adequate representation, these families are often left with no visitation. Even if and when an individual has representation, visitation is often never revisited in the course of these proceedings.
This leads to parents having only hours per week, or no contact at all for months and even years.
This is just one of the many constitutional rights parents and individuals accused of abusing their child have violated by the courts.
The “burden of proof” is actually on the prosecution and the department (DHHS, CPS, DCF, etc), but it is the accused (the guilty) who are responsible for footing the bill to retain counsel and expert witnesses to defend them, mainly to find out what is going on with their child, as the negligence of these child abuse pediatricians continues.
Also, their opinion holds more credibility in the courts than the experts who specialize in the disorders associated with child injuries.
Furthermore, the prosecution uses the fact that these witnesses are “paid” or “retained” as a means of discrediting them.
The fact that the second opinion of an outside, unbiased, and more qualified physician should have been consulted on cases like this is never mentioned, leaving the child abuse pediatrician the “expert.”
Therefore, leaving indigent families and individuals facing the accusation of child abuse alone and without representation, and leaving families as not deemed indigent, usually bankrupts them.
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