Appeals

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Appeals

Postby Marina » Thu Apr 03, 2008 3:31 pm

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http://www.news-sentinel.com/apps/pbcs. ... /804030332

Father denied due process, appeals court rules
A court date is set to determine status of his parental rights.



By Jeff Wiehe
of The News-Sentinel

A father of two was denied due process in Allen Superior Court when his parental rights were terminated last April and may now have a chance to regain custody of his children, the Indiana Court of Appeals ruled Wednesday.

The Superior Court failed to allow Michael Farley, 33, a chance to respond to an independent, off-the-record investigation into the conditions of his home conducted 45 days after evidence was presented during a trial to determine the status of his parental rights, the appellate court ruled.

This created a “high risk of error” in the Superior Court decision, according to the ruling.

The Superior Court decision is now reversed, and a new trial will be scheduled.

Farley's children were found to be in need of services in September 2005 because one of them had scabies and lice, according to court records. In July 2006, the Allen County Department of Child Services filed a petition to have Farley's parental rights terminated because he failed to maintain suitable living conditions. In December 2006, a trial was held on that petition, which in parental-rights issues is held before only a judge. In February 2007, the court ordered further investigation into the evidence presented at the trial. An investigation was then apparently conducted by the Allen County Department of Housing.

The results were given to the trial court but apparently not submitted in their entirety into evidence or put into the case file, according to court documents.

The court then decided to terminate Farley's parental rights on April 9, 2007, citing the conditions of his unsanitary home presented during trial that included amongst other things: missing drywall exposing insulation; a strong odor of dog urine, feces and sewage from a broken sewer pipe in the wall; a hole in the ground in the front yard that was only covered with a sheet of glass; overall clutter and filthiness that posed dangers to kids.

The court also added an addendum to its decision citing a excerpt from the Housing Department report. The decision also indicated the court did not feel Farley would make the necessary changes to make the home safe for his children.

There were no more trial proceedings after the Housing Department's report was submitted to the court, which didn't allow Farley to cross-examine the inspectors who produced the report or even to see the complete report.

The Department of Child Services argued that because the report was never presented into evidence, it may not have had any bearing on the superior court decision. The appellate court judges did not agree that the report was as “innocuous as the DCS suggests,” according to the ruling, citing that the court ordered a further investigation into Farley's home before making its decision and got that with the Housing Department report.

“Had the state met its burden of proving by clear and convincing evidence that the conditions that led to the children's removal had not been remedied, additional investigation by the trial court would have been unnecessary,” the appellate ruling read.

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Postby Marina » Sun Apr 13, 2008 7:56 pm

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http://www.al.com/news/huntsvilletimes/ ... xml&coll=1

State appeals courtreturns dad's custody

Saturday, March 08, 2008By BOB LOWRYTimes Staff Writer [email protected]

Blasts county'sDHR and juvenilecourt for decision

MONTGOMERY - A state appeals court came down hard Friday on the Madison County Juvenile Court in overturning its decision to terminate the parental rights of a Gurley man.

In a harshly worded opinion written by Presiding Judge William Thompson, the Alabama Court of Civil Appeals also sharply criticized the Madison County Department of Human Resources.

The juvenile court, based on evidence presented by DHR, had terminated the father's parental rights to his 12-year-old son, a 10-year-old daughter and a 9-year-old daughter. Names in juvenile cases in court are not disclosed.

DHR had cited a litany of problems with the children's care that included neglect of their diet, health care and a claim that the parents smoked marijuana in front of the children.

The mother, whose rights were also terminated, did not appeal the ruling after she abandoned the family in 2006.

In restoring the parental rights to the father, the Court of Civil Appeals said, "By all accounts, the father is a hard worker and a trustworthy employee. According to all the witnesses who observed him with his children, he is also a loving father."

At the time of the trial in 2007, the father was a 37-year-old, ninth-grade dropout who had worked a variety of manual-labor jobs. Then, he was earning $10 an hour as a landscape foreman.

The appeals court said after the mother left the family, it appeared DHR's plan became focused on terminating the father's rights rather than working with him to keep the family together. And it said DHR could provide no proof that the father had failed drug tests after completing a treatment program.

"We can find in the record no affirmative conduct or dereliction of duty on the father's part that caused DHR to alter its case plan for this family after the mother left, and we can only conclude that the father's 'long work hours' were a plus while the mother was in the picture but that, now that she is out of the picture, they are a minus," the court said.

"Poverty ... in the absence of abuse or lack of caring, should not be the criteria for taking away a wanted child from the parents."


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Marina
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Postby Marina » Wed Apr 23, 2008 3:37 pm

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http://www.herald-coaster.com/articles/ ... pstory.txt

Gates' CPS suit continues

By Stephen Palkot Monday, April 21, 2008 3:44 PM CDT






Businessman and political activist Gary Gates was handed a victory last week in his years-long battle with the agency that oversees Child Protective Services in Texas.

An appeals court ruled that a lawsuit his wife filed against the agency was improperly dismissed in an Austin court in 2006, and she can once again proceed with the matter.

Gates has accused the Texas Department of Family and Protective Services, which oversees CPS, of violating his constitutional rights against unlawful search and seizure by taking custody of his 13 children without a warrant on a Friday in February 2000.

Gates contested the decision the following Monday, and a judge in Fort Bend County ruled in his favor, having all children returned to the couple's custody immediately.

The children were seized by CPS after a son showed up at his elementary school with a plastic baggie filled with snack wrappers taped to his shirt, punishment for repeatedly helping himself to snacks without permission.

The Gateses said they improvised the punishment after other methods had failed to reach the child, and the boy was given a note that explained to school leaders the reason for the punishment, along with their contact information.


In a separate lawsuit against Lamar Consolidated ISD for initiating the investigation, the district agreed to pay $125,000 to Gary and Melissa Gates, as well as implement a series of changes in the district's policies.

Since that time, Melissa Gates has been listed in a central CPS database as a “designated perpetrator” of “child abuse.” On Aug. 30, 2001, she filed suit against the DFPS in Austin, seeking the removal of her name from the database.

According to court paperwork, Gates' lawsuit against the agency was dismissed by a state district judge on Sept. 25, 2006 on the technicality that she had not undergone the formal complaint process offered by CPS.

Gates raised numerous questions about the nature of the procedure and could not agree on a time for the review to happen. Thus, lawyers for CPS took the matter before the judge in Austin, and asked for the case filed by Melissa Gates to be dismissed based on her alleged failure to cooperate with the scheduling of the administrative review.

CPS lawyers said this showed Gates failed to exhaust administrative remedies, and the judge went along with their request to have the suit dismissed.

The ruling this week came from the Texas Third Court of Appeals, which is one level above state district courts. In their written ruling, the court concluded that Melissa Gates did not have to exhaust her administrative remedies to sue the TDFPS, and they faulted the department with misinterpreting state law.

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Marina
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Postby Marina » Wed Apr 23, 2008 7:22 pm

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http://www.law.com/jsp/article.jsp?id=1 ... s=newswire



Appeals Court Faults Removal of Obese Child From Parents
Joel Stashenko
New York Law Journal
March 3, 2008



Though not "ideal," a couple's efforts to control the weight of their obese daughter were made in good faith and did not justify a county agency's repeated removal of the girl from her parents' custody, an upstate New York appeals court ruled Thursday.

The custody case, Matter of Brittany T., 502131, concerned attempts by the Chemung County Department of Social Services to intervene in the upbringing of an obese girl. The matter began in 2003, when the agency filed petitions alleging the parents were neglecting their then-9-year-old daughter.

According to Thursday's ruling, Brittany T.'s weight eventually exceeded 250 pounds, and she had several health problems associated with obesity, such as gallstones, high blood pressure, high cholesterol and insulin resistance. The girl "undoubtedly has an eating disorder," the court noted Thursday.

The county petitions argued that the parents, identified in court papers as Shawna T. and Robert T., were failing to take steps to control their daughter's weight and also to ensure she was attending school. A finding of neglect and order of supervision in August 2003 established a series of conditions the parents were to follow to reduce Brittany T.'s weight.

She was removed from her parents' household three times during the next four years and placed in foster care by social services officials based on alleged violations of the terms of the 2003 order of supervision.

The most recent of those removals, ordered in February 2007 by Chemung County Family Court Judge David M. Brockway and based on the parents' "willful" violation of the 2003 order of supervision, was before the 3rd Department on appeal Thursday.

Writing for a unanimous panel, Justice E. Michael Kavanagh observed that a "willful" violation of an order of supervision is a serious matter that, if prosecuted, carries a six-month jail sentence for an offender under Family Court Act §1072(b).

"The specter of such punishment, as well as the potential consequences that such a finding may in fact have for the family unit, requires that competent evidence be presented that establishes the willfulness of the violation by clear and convincing evidence," Kavanagh wrote. "Applying that standard to the evidence produced in this proceeding leads us to the inescapable conclusion that petitioner has not met its burden of showing that the parents willfully violated any of the terms or conditions as set forth in the order of supervision."

In refuting the county's contention that Brittany's parents violated the order, the 3rd Department cited several instances where judges said Shawna T. and Robert T. had displayed extra diligence in caring for their daughter. In one instance, the parents drove 130 miles to attend regular meetings with their daughter's nutritionist, the court noted.

The judges also found that the repeated absences from school cited by social services officials as a violation of the order of supervision in 2005 and 2006 were all excused by school officials. The girl, in fact, passed all of her classes and was on the honor roll for part of the school year, according to the ruling.

"While we recognize and share petitioner's concern for the child's health and well-being and are not unmindful of the fact that her weight and dietary habits while in respondents' care had not been, to say the least, ideal, we cannot conclude that petitioner has demonstrated a 'continuous, willful and unjustifiable refusal to accept petitioner's recommendations,'" Kavanagh wrote.

Presiding Justice Anthony V. Cardona and Justices Anthony J. Carpinello, John A. Lahtinen and Anthony T. Kane concurred with the decision.

The father's attorney, Francisco P. Berry of Ithaca, said he was "very happy" for his client but declined further comment on the case.

Cheumung County attorney Brian Maggs defended the local social services office. He did not immediately return a call seeking comment.

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Postby Marina » Thu Jul 10, 2008 4:17 pm

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http://www.app.com/apps/pbcs.dll/articl ... S/80710017

Appeals court upholds decision to take Hunterdon child from mother

By MICHAEL DEAK • Gannett News Service • July 10, 2008


HUNTERDON COUNTY — A state appellate court has upheld a court decision to take a Hunterdon County child from her mother, place the youth in a foster home and deny the mother's visitation rights.

The mother, identified in court papers as "P.H.," appealed an April 25, 2007, court order sought by the state Division of Youth and Family Services (DYFS) to terminate her parental rights after the child is adopted. The child has been placed with her birth father's sister and her husband, who plan to adopt the child, according to court papers.

"The child's bond with her foster parents and her need for stability and permanency substantially outweigh any possible harm from severing her relationship with (her mother)," the appellate court wrote in its ruling, dated Tuesday.

The child, identified in court papers as "N.H." because of her age, was born in September 2002. DYFS became involved with the child's welfare on Feb. 24, 2004, when the child was taken to a hospital emergency room for excessive vomiting and the hospital reported to DYFS concerns about the mother's parenting abilities, court papers indicate.

DYFS investigated the allegations and provided services, including medical care for the child and parenting classes for the mother.

In January 2005, DYFS visited the mother because of concerns about the child's care and the mother's impending eviction from her apartment. Although the child had a respiratory infection, the mother was smoking in the room and had the child dressed only in a diaper. The mother showed the child's medication to the nurse and then gave the bottles to the child to play with, according to court papers.

A month later, the father was granted temporary custody of the child. At about the same time, the mother was jailed in Pennsylvania on a charge of selling crack cocaine to an undercover officer.

In June 2005, DYFS received a court order putting the child in temporary custody of the state and suspending the mother's visitation rights.

When the mother was released from jail in August 2005 and wanted to schedule a visit with the child, DYFS told her to contact Hunterdon Medical Center in Raritan Township and obtain psychiatric medication before she could visit the child.

A psychiatric evaluation of the mother determined a lengthy mental health history, including a number of suicide attempts, an eating disorder, childhood sexual abuse and abuse by lovers, court papers indicate. The woman had also left school at age 16 to work as a stripper.

The report concluded the mother lacked "the social/emotional and life skills capacity to provide appropriate parenting," according to the court's ruling.

Though the child remained in DYFS's custody, the mother was given permission to visit the child and call her.

The mother's suicide attempts continued, however, and she was hospitalized for depression in June 2006, prompting DYFS to file for guardianship, according to court papers. The mother was again hospitalized in October 2006 and a psychiatric evaluation in January 2007 found the prognosis for her bipolar illness was "poor," court papers said.

Meanwhile, the child was "thriving" in foster care, according to court papers.

The appellate court ruled DYFS had "clearly and convincingly" met the statutory requirements for terminating the mother's rights.

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Postby Marina » Sun Oct 12, 2008 9:16 pm

http://www.pittsburghlive.com/x/pittsbu ... rss&feed=1

Caseworkers' documents altered in Tatar case, report says
By Renatta Signorini
TRIBUNE-REVIEW NEWS SERVICE
Saturday, September 13, 2008


A sworn statement from a caseworker and an expert's report that caseworkers' documents were altered were accepted into evidence Friday during an appeal hearing for an Armstrong County man serving a life sentence for the starvation death of his daughter.

Jeffrey Miller, the attorney for James Tatar, 46, of Parks Township, had asked that Judge Kenneth Valasek provide him with resources to bring the forensic document examiner, Albert H. Lyter, from North Carolina to testify. Miller also asked for a detective's help to find Pamela Walmsley, a caseworker who worked with 4-year-old Kristen Tatar and her parents before the girl's death in 2003.

Valasek instead permitted the statement and report be part of the record of an appeal hearing in which Tatar is seeking a new trial.


"It's going to save a lot of time and resources if I just permit it to be introduced into evidence," Valasek said.

Miller and the prosecution were instructed to file legal briefs in the upcoming months to support their arguments. Valasek will decide at a later date whether evidence and testimony presented Wednesday, Thursday and yesterday warrants a new trial.

Tatar was convicted in 2004 of starving his daughter Kristen Tatar to death. In his appeal, filed under the Post-Conviction Relief Act, Tatar and Miller allege that trial defense counsel was ineffective and that caseworkers' documents were altered, destroyed or concealed.

The validity of the documents is in question because of their role in a doctor's testimony during Tatar's trial. Dr. Holly Davis of Children's Hospital in Pittsburgh testified as an expert in child abuse. She based her opinion, in part, on documents from the Westmoreland County Children's Bureau.

Kristen Tatar's emaciated body was found wrapped in garbage bags inside a cooler on Aug. 7, 2003, near the Tatars' Kepple Hill home. Investigators testified at trial that Kristen died about one month earlier.

Janet Crawford, Kristen's mother, testified during Tatar's trial that he withheld food from the girl and was abusive. Kristen was tied to a bed in the attic of their home for a week without food or water before her death, Crawford testified.

She is serving a life sentence for her role in her daughter's death.

Tatar has maintained his innocence, testifying that he last saw Kristen in May 2003 and believed she was in a hospice.

Miller confirmed yesterday that the documents Lyter reports to have been altered were part of those provided to Davis. Lyter examined the documents as part of a wrongful death suit in federal court.

"We know these documents were something Davis relied upon," Miller said.

Four documents that Lyter claims in his report to have been altered were included as evidence yesterday. One of the documents shows that a risk assessment level appears to have been changed from low to moderate.

Walmsley's sworn statement outlines her role in working with Kristen and her parents as a contracted caseworker through Westmoreland County Children's Bureau. The statement is part of the wrongful death suit.

Walmsley provided family services and made sure Kristen made it to doctor's appointments, she said in the statement. The caseworker made notes and reports of the family's progress, she said, totalling hundreds of pages.

Walmsley said she was instructed by her supervisor "to make a bonfire and burn them (documents in the Tatar file) and get it all out of my system," despite their relevance to the murder case.

Yesterday's proceedings concluded the appeal hearing that included testimony from Tatar's trial defense attorney, Joseph Caruso, on Wednesday and attorney Robert Stewart, who assisted Caruso, on Thursday.

Caruso's qualifications to handle a capital case are being challenged by Miller because Caruso did not meet the requirement of a rule that came into effect the day the trial began.

The prosecution had been seeking the death penalty against Tatar. Stewart joined Caruso on the case during pretrial proceedings, initially just for the penalty phase, but then took on more work in the guilt portion, the attorneys testified.

Both attorneys were questioned this week about other alleged discrepancies in the handling of the case, including failure to object to jury instructions and testimony and raise certain issues in appeals to higher courts.

Tatar filed an initial appeal under the Post-Conviction Relief Act last year. Miller's amended motion, filed earlier this year, details new evidence and ineffective assistance claims in an attempt to prove the need for a new trial.

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Postby Marina » Sun Oct 12, 2008 9:30 pm

http://www.tucsoncitizen.com/ss/local/96976.php

Published: 09.18.2008
Prosecutors faulted in reversal of conviction in infant's death

A.J. FLICK
Tucson Citizen

An appeals court reversed the child abuse conviction of a Tucson foster mom accused of failing to seek immediate help for a 4-month-old boy who later died.

The Arizona Court of Appeals ruled Monday that Pima County prosecutors failed to get expert witnesses to tell jurors that Dwight Hill could have lived had he gotten faster care.
The ruling also reverses the 10-year probation term for Guadalupe Yolanda Gomez.

The infant died Nov. 16, 2005 - 11 days after Gomez was given custody - from bleeding in the brain from a skull fracture caused by blunt force trauma, according to the Pima County medical examiner.
Gomez was convicted of failing to provide prompt medical attention for the boy, based partly on her admissions that she saw his eyes rolled back in his head and he was listless for several days before she took him to a doctor.

Gomez initially was indicted on a first-degree murder charge, which prosectors withdrew at the beginning of Gomez's June 2007 trial.
At the conclusion of the trial in Pima County Superior Court, Judge Frank Dawley granted defense attorney Steven West's motion to dismiss a child abuse count that alleged she caused the head injury that ultimately killed the boy.

The jury then found Gomez guilty of reckless child abuse for failing to seek immediate medical care.

Judge Peter J. Eckerstrom, writing in the appellate opinion, said, "Jurors are not presumed to know the capabilities and limitations of modern medicine, and their speculation concerning the risks and possible outcomes of traumatic injuries cannot substitute for substantial evidence on such matters."

Eckerstrom said that among the state's experts called at trial were two registered nurses; three pediatricians, two of whom attempted to revive the boy; and the medical examiner.

"Because the availability and efficacy of treatment for cranial-cerebral injuries in infants is not within the common experience and knowledge of the jury, the state was required to present evidence from which the jury could conclude without speculation that Gomez's delay in seeking treatment had endangered (Dwight)," Eckerstrom wrote.

"We, like the jury in this case, are tempted to conclude that (the boy) would have benefited from more immediate medical attention and that such attention had the potential to save his life.

"And, we suspect the state would have had little difficulty eliciting expert testimony from at least one of its witnesses that Gomez's delay increased (Dwight's) risk of harm," he wrote. "We merely hold today . . . that the state must present such evidence. Because it failed to do so, Gomez's conviction was not supported by substantial evidence."

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Postby Marina » Sat Oct 25, 2008 8:23 pm

http://chronicle.augusta.com/stories/10 ... 9617.shtml

Court rules against DSS in Aiken couple's appeal
By Sarita Chourey| Morris News Service
Thursday, October 16, 20084

COLUMBIA --- The South Carolina Department of Social Services in Aiken County was wrong to fault a couple for child neglect, according to the state's Court of Appeals, which reversed a family court's decision to institute a "treatment plan" for the household.

The house was messy, but there was no evidence of maggots and feces, which had been alleged, Tuesday's Appeals Court opinion said.

The children's mother said the Social Services investigators disrupted her children's lives.

Nedra K., as she was identified in court records, said her two children were making A's and B's before Social Services started its investigation in 2006.

But their grades suffered, she said, because "DSS was visiting (them) at school and it was embarrassing to them. They were waking up at various times of the night afraid DSS was going to take them away."

Two years ago, officials from the Aiken County Department of Social Services visited the family's home after receiving a call that "there are bags of trash with maggots in them throughout the house ... there is dog feces and dog urine on floors ... there was the smell of marijuana in the home and marijuana smoke was seen."

Caseworkers did not find that, according to the court records, but said the house had carpet stains, bags of trash and a front door that was barricaded with garbage.

DSS concluded there was "physical neglect due to the condition of the home of the parents" and ordered the parents to comply with a six-month in-home treatment plan.

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Postby Marina » Sun Dec 07, 2008 12:02 pm

http://www.grandforksherald.com/article ... m?id=95790

ND woman appeals conviction for endangering fetus
Associated Press
Published Thursday, December 04, 2008

BISMARCK

North Dakota's Supreme Court is hearing the appeal of a woman who is accused of child endangerment in the death of her unborn child.


Authorities say Michelle Geiser overdosed on prescription drugs in October 2007. She was more than seven months pregnant at the time, and her unborn child died.


Geiser faces up to 20 years in prison.


Her lawyer says North Dakota's child endangerment law isn't supposed to apply to the death of a fetus.


Several medical and women's groups are supporting Geiser. They say it would be an unprecedented expansion of state law to convict a pregnant woman of child endangerment for taking drugs.

MaggieC

Postby MaggieC » Sun Dec 07, 2008 4:01 pm

God help us all -especially women if the state wins this one.

Can you imagine? If CPS are already attacking on false accusations for born children., what will they do with the unborn?

A woman accidently falls down a flight of stairs, miscarries, ABUSE!!!

A woman is in a car accident, miscarries, NEGLECT!

You get the picture.....................................


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