LEGAL AID ARTICLE PRESENTS CASES OF CHILDRENS RIGHTS

[Dazeemay]

http://www.legalaidnc.org/Programs/ACS/ ... 20children

One should read the article because it is very informative, but I posted 4 cases sited in the article because of their content.

Gregory K - I Hear You Knocking But You Can’t Come In:
In 1992 Gregory K. was ten years old and had been left "double-parked" in the Florida foster care system well beyond the statutory time limit. He had a family ready to adopt him but the child protective system (CPS), in whose custody he was, refused to initiate termination of parental rights (TPR) proceedings. So Gregory found a lawyer who knocked on the courthouse door in his behalf petitioning for TPR and to be adopted. All the while Gregory languished as a ward of the state in foster care his appointed guardian ad litem never met him or spoke to him about his needs or desires. Predictably, the lawyer for the CPS moved to dismiss Gregory's petition claiming he lacked standing and capacity to bring any legal action. Gregory, who could be called the Rosa Parks of the Children's Rights movement, aroused national attention by his claim that he had a right to be heard on such matters as his own safety, liberty from state custody, and his desire for a permanent loving family. As director of the Legal Action Project of the National Committee for the Rights of the Child (LAP), this writer filed and argued an amicus brief before the trial judge opposing the motion to dismiss. Others expressed support for Gregory's position and a nascent movement for children's right to be heard strengthened.

The trial judge denied the motion to dismiss and accepted the petition for TPR to be brought on for a hearing. The trial was nationally televised on the then fledgling Court TV network and the judge, based upon strong evidence, ordered parental rights terminated. Because it was a presidential election year with Bill Clinton as a candidate, Hillary Clinton's old law review articles about children's rights became a lightening rod for partisan politics. Ms. Clinton’s articles argued that children should have the due process rights to be heard in court through their own attorneys. The "spin" was astounding. The decision in favor of a child seeking to get out of government custody and into a private family was described by some critics as the Clinton’s notion of "big government" and their support for a child being allowed to "divorce" his parents. Some child advocates working at the national level spoke critically of the trial judge’s decision. The adoption was approved and Gregory became part of a wonderful family. However, the CPS appealed the decision. The Florida court of appeals reversed, holding that Gregory did not have the capacity to have brought the action.(12) Because of the embarrassment to CPS when Gregory's petition revealed the unlawful amount of time he had spent in foster care, CPS had filed their own petition for TPR with the trial court. Thus the court of appeals was able to let stand the adoption as based upon the valid CPS petition and hold that Gregory, because he was a minor, could have his knock at the courthouse door ignored even though he was bringing an admittedly meritorious claim.(13)



The Grisson Children - Sanctioning the Messenger:
In 1992 the three Grissom teenagers were living with their mother in Missouri. Their father sought to have their mother held in contempt because the children refused to visit him as called for in an existing divorce and custody order. They testified that they did not want to visit with their father because he abused them. The trial judge, without notice to either parent and without any legal representation for the children, placed the children under the "custody and control of the Division of Family Services." He left physical custody with the mother but used the threat of state physical custody as leverage to coerce the mother to force the children to visit their father. When the children renewed their contentions of abuse and refused to visit, a hearing was scheduled where there was the real possibility the children would be taken away from their mother and ordered into a foster home or institutional placement. This writer, again as part of LAP, along with local counsel, moved in behalf of the children to intervene because of their fundamental liberty and safety interests at stake. Not only was the motion denied, the trial judge sanctioned both counsel for filing a frivolous motion. An appeal was filed and the Missouri Court of Appeals affirmed the denial of the motion to intervene but reversed the sanctions.(14) Anguishing negotiations kept the children from being placed in state custody or having to endure visits with their father. But the decision remains, denying children their right to be heard when they have fundamental interests at stake.



Samantha Frazier - Linking Litigation with Grassroots Advocacy and Media
Samantha was nine years old when the CPS in Delaware petitioned for TPR. Her mother, a long time substance abuser, had abandoned her 4 years earlier by running off to another state with her substance abusing boyfriend. Samantha had bounced around several foster homes and been abused in one. Eventually she started living with a stable family that wanted to adopt her. At the TPR hearing, Samantha's biological mother had a free lawyer and Samantha had a CASA lay advocate, who had a lawyer.

Samantha wanted to be adopted, but her testimony and desires were never heard by the court. The CASA urged, against Samantha's wishes, that Samantha be sent to South Carolina to live with her mother who was still in drug rehabilitation. Her mother did not even testify at the hearing. However, her drug counselor testified by phone that the mother would be a competent parent. The CPS attorney did not vigorously present the case for TPR and the judge ordered Samantha to live with her mom in South Carolina. The CPS attorney allowed the time for appeal to expire.

A handful of Delaware advocates for children's rights, then known as Hear My Voice and now known as Grassroots Citizens for Children (GCC), began to make a fuss. They contacted the CPS officials and their attorney, the Attorney General, and local attorneys. All bemoaned how unfair it was that Samantha never got to be heard and her own supposed advocate argued against her. But they all said Samantha had no right to appeal and the time to appeal had passed anyway. She was treated as an object of the proceeding and not a participant. This writer, who is a volunteer with GCC, was urged to "do something."

Believing that where there is a wrong there is a remedy, this writer drafted a simple four page pro se complaint for a writ of certiorari to be filed with the Delaware Supreme Court. In the plainest of language, the complaint pointed out the denial of Samantha's constitutional right to safety and her liberty interest in maintaining her relationship with her new family with whom she had been living. It also asserted that she was the real party in interest and had a fundamental due process right to access the court and be heard. The complaint was shipped over-night to Delaware to the GCC folks who had connections with Samantha and the family wanting to adopt her. Samantha read the complaint, corrected certain factual statements, then signed the document pro se. Without a "Next Friend", GAL, or counsel, but with the help of lay advocates from GCC, she filed the complaint with the Delaware Supreme Court. The media had been contacted in advance. Dan Rather covered the story that night. The next morning the details of her unhappy story and efforts to seek legal redress were front page in the state-wide newspaper and carried in other states. Her story was featured that same morning on ABC's Good Morning America with a live interview of Samantha.

The Delaware Supreme Court accepted Samantha's complaint on June 2, 1998, and quickly ordered transcripts of the hearing and responses from the CPS, the mother, and the CASA. Just 17 days after filing of the complaint the high court issued an order declaring:

It would thus appear that as a matter of statutory entitlement, under Delaware law, a child who is the subject of the termination proceedings may not institute an appeal in the child's own name. This is not to say that the child, whose very future as a member of a family unit may be in the balance, is not an interested party.... As an interested party in the termination proceedings, the child's right to be heard must be protected.... The CASA, like [CPS], claims that it acted in Samantha's best interest, but that claim is open to significant doubt.... A Guardian ad Litem, if true to the role, must assume a role closer to the child's wishes, while affording the minor the benefit of the guardian's counsel and advice.(15)

The court remanded the case for another hearing where the child would finally have a chance to be heard. But for the unique Pro Se filing by the child accompanied with local and national media, this child would probably have been victimized, as thousands of children are daily, by the "institutional immorality": a kangaroo court where her voice was never heard, much less weighed, her advocate was really her adversary, and the ruse of due process ignored like the Emperor’s nakedness by well-intended people who actually knew of the injustice but comfortably concluded nothing could be done. (For a copy of the order and/or the complaint for writ of certiorari contact this writer at (919) 856-2149.)



Chris B. - GAL as Potted Plant
This writer represented Chris, or at least attempted to be his lawyer. Chris, living in North Carolina, at age 10, had been a ward of the state for six years. Chris is deaf. He was severely neglected and sexually abused by his mother and step-father. He had lived all the six years with a wonderful foster family that had other deaf children and intended to adopt him. For over ten months Chris' foster mother pleaded with the CPS and its sister agency, the local public mental health center, to get appropriate mental health treatment for Chris. Chris was showing clear signs of Reactive Attachment Disorder (RAD). Yet the local public mental health center, operating under stringent managed care techniques designed to limit care and thereby costs, refused to even have Chris evaluated, much less provide treatment. When repeated intra-system advocacy at many levels failed, his foster mother publicized her pleas for mental health and legal services for Chris. Chris had a GAL attorney, known in North Carolina as an "attorney advocate", but it is undisputed that for the entire six years in foster care the "attorney advocate": 1) met only once with Chris to determine his expressed wishes and needs - and that was for approximately fifteen minutes; 2) failed to advocate to the court Chris' expressed wishes and needs; and, 3) never visited Chris' foster family home. Further, because the foster mother publicly advocated for Chris to get mental health and legal services and consulted with this writer, the "attorney advocate" for Chris filed a motion alleging the foster mother had violated the confidentiality rules and harmed the best interest of the child. The "attorney advocate" never once advocated the child's expressed desire to receive mental health assessments and treatment or his desire to be adopted by his foster family.

This writer was contacted by the foster mother and asked to represent Chris. This writer met with Chris and a sign language interpreter out of the presence of the foster mother. Chris communicated that he wanted legal counsel to help him get treatment and get adopted by his foster family. Chris signed a retainer agreement. Compensation was not an issue because this writer is employed by Legal Services of North Carolina and Chris qualified for free representation. Notice of Appearance was filed. After full oral argument by this writer supported by an amicus brief to the trial judge from Professor Barbara Bennett Woodhouse and her child psychiatrist colleague who specializes in deaf children, Chris was denied the right to be heard through his retained pro bono attorney in an on-going foster care proceedings in which he had fundamental and protected rights, including the rights to safety, liberty, and health care under the Federal Medicaid law, which were being denied.

Soon thereafter, in what appeared to be a retaliatory move against the foster mother for her public advocacy for Chris to have meaningful legal representation and appropriate mental health treatment, the CPS decided to remove Chris from the only loving family he had ever known. At approximately the same time and due to the delays and denials of mental health services and legal assistance and to protect their infant son from the ever-increasing threat of harm from Chris's untreated RAD, Chris' foster parents felt they had no choice but to withdraw their request to adopt Chris. Extraordinary Writs to appeal the denial of the right to be heard through retained pro bono counsel were denied without opinion by both the North Carolina Court of Appeals and North Carolina Supreme Court. The only opposition to these Writs were filed by the GAL, including hiring a private attorney to prepare and file a brief in opposition in the state supreme court. Chris was snatched from his family of six years and moved to another town. After several weeks he was moved once again. This writer has no idea where he is, whether he has received appropriate treatment, nor how he doing. This deaf child was truly never heard in court.