I receive the Washington Lawyer magazine every month.  When I see it in my mail I immediately go to the back page.  The back page contains a monthly article written by a D.C. lawyer named Jacob Stein.  The articles are always entertaining and are usually geared for the daily practice of law.  This month contained the story below titled “Circumstantial Evidence” and I wanted to pass it along to everyone – even nice, normal people that are not afflicted with a law license.  Hope you enjoy.

Martin Armstrong had obtained two continuances from the court to file his opposition to the defendant’s motion for summary judgment.

He had a problem with the case. He could not bring himself to read the file. He knew he must go someplace where there were no distractions. He decided to take the file and nothing else and register at that second-rate hotel in Boston where he stayed in his student days.

When he arrived at the old hotel, the clerk told him to leave his briefcase in the lobby and to come back in an hour or two and his room would be ready. He decided to stop in at the used bookstore close by. He was determined, however, not to buy any books that would distract him.

He went to the table where, for a dollar, one could pick up a stray volume from one of the multivolume sets. He saw one of Arthur Schopenhauer’s books, titled Counsels and Maxims. Despite his resolution to buy no books, he could not pass up this dollar bargain. He knew of Schopenhauer in his Harvard philosophy class. He liked the old boy’s pessimism.

No matter his resolution not to buy a book, he bought the book. A page or two of Schopenhauer would not be much of a distraction from the summary judgment, and he took a few turns around Bromfield Street, enjoying the pleasant fall weather. Then he returned to the hotel. His room was just what he wanted – a bed, a desk, a chair, a small closet. No radio. No TV. No distractions.

Once and for all he was going to read the pleadings and the papers, no skipping. He soon realized that there was not much to the defendant’s motion. Why had he been so frightened by it?

After two hours of work he stood up, stretched himself, and looked around the small drab room. The cleaning people did a poor job. The last occupant was a smoker and a drinker. The ashtray was filled with cigarette butts. Beneath the bed was an empty half-pint whiskey bottle. He put both in the trash basket. He had been clean of smoking and drinking for three years. If he were to spend a week in this room, he might fall off the wagon.

Armstrong felt exhilarated after writing the first draft of the pleading. He decided to take a walk, eat a sandwich, and return to the room. He said to himself that he had now earned the right to read a few of Schopenhauer’s maxims, including the advice that “[t]o speak angrily to a person, to show your hatred by what you say or by the way you look, is an unnecessary proceeding – dangerous, foolish, ridiculous, and vulgar.” Well, he said to himself, that is pretty good.

There was a one-page paper note in the back of the book. It happened to be a suicide note, filled with despair and futility. It contained this Schopenhauer quotation:

Life may be represented as a constant deceiver in things both great and small. If it makes promises, it never keeps them,… Life gives only to take away. The charm of distance shows us a paradise, which vanishes like an optical delusion if we allow ourselves to approach it.

Well, Armstrong said, somebody in that state of mind should not have been reading Schopenhauer.

The outside Boston fall weather was pleasant. He tried to open the window facing the street. It would not open. There were chipped coats of old white paint around the window. He thought of those lead poisoning cases he had lost.

Armstrong placed himself where he could put his strength behind the effort to raise the window. It did not open. But something else happened. He felt a sharp chest pain. Why did he get all worked up about opening that window? His cardiologist had warned him against doing anything that required real physical effort.

He breathed deeply, but the pain did not go away. He looked through the leather pouch where he kept his shaving supplies to see if he had the prescription bottle of nitroglycerin pills. The bottle was there, but no pills. He did find a scatter of over-the-counter sleeping pills that he had. In the past, when he had sharp pains, he took a nitroglycerin pill together with a sleeping pill. If he got  good night’s sleep, the pain went away. He took two of the “blueys,” the blue pills that guaranteed to give a good night’s sleep.

The following morning, the cleaning woman knocked on his door. No answer. She reported this to the desk clerk who, with the help of others, pried open the lock. Armstrong was in bed. Dead. The police were called. The policeman found the suicide note. He then called the doctor whose name appeared on the empty nitroglycerin bottle.

The policeman identified himself and asked if the doctor had Martin Anderson as a patient. The doctor confirmed that he did.

“Did you prescribe nitro pills for him?” the policeman asked. The doctor said he did.

The policeman said, “What if he took a lot of pills and smoked a lot and drank a bottle of whiskey – would that have any effect?” The doctor said it would kill him.

“Well, it looks like Martin Armstrong has died, and left a well-written suicide note.”

The doctor said, “Something must have gone wrong for Martin to end up like this. Something must have really gone wrong for him to be in that hotel you described. Why wasn’t he staying at the Ritz, his favorite hotel in Boston? Something must have really gone wrong.”

By now, you’ve undoubtedly heard the story of Anna and Alex Nikolayev, the Sacramento parents of baby Sammy who were stunned when Child Protective Services (CPS) workers yanked the infant out of his mother’s arms – all because the parents had the temerity to request a second opinion from physicians.

But after some digging, I began to realize that while all the available facts have been reported by one outlet or another, no one article told the whole story.

Background: The Nikolayev Family

Alex and Anna Nikolayev, parents of 5-month-old infant Sammy, took their child to Sutter Memorial Hospital in Sacramento due to Sammy’s congenital heart murmur and the fact that the baby had developed flu-like symptoms.

It’s important to keep in mind that this wasn’t the first time they’d had to seek medical treatment for their child. In fact, they apparently had seen many doctors prior to this visit, at least one of whom had told the young parents that Sammy should not be given antibiotics.

So when Anna saw a Sutter nurse begin to administer antibiotics to her child, she spoke up and asked why. The nurse said “I don’t know.”

Then the attending physician told the worried parents that Sammy didn’t have the flu – but rather that the infant needed open-heart surgery immediately.

The parents made the (I believe quite understandably) decision to seek a second opinion elsewhere. Anna put Sammy in his stroller, and they traveled across town to Kaiser Permanente Medical Center to get that opinion.

At Kaiser Permanente, after the child was evaluated, physicians told the Nikolayevs that they could take Sammy home – a very different opinion than the one formed by the Sutter physician.

One fact that seems to be getting lost in the retelling of this tale is that the Nikolayevs were confronted twice by authorities. The first such occasion happened on the day they brought Sammy home from Kaiser Permanente. The police approached the parents, and with their permission, spoke with the KP physician who had treated Sammy. The KP doctor assured the police there was no danger to Sammy. The police indicated to the Nikolayevs that the staff at Sutter had led the police to believe Sammy was at death’s door, but that they could clearly see he was not.

The next day the nightmare truly began. The Nikolayevs were confronted again by the police – but this time, the police were escorting CPS workers who had one of the officers take Sammy right out of his mother’s arms. There’s very troubling video of this incident here.

For the following week, the distraught, confused parents were allowed only one-hour visits with their baby per day. CPS, meanwhile, had taken Sammy to Sutter, the very hospital that had made the parents so leery.

Finally, on April 29^th, a judge yanked the reins on this runaway train returning medical decision-making authority to the Nikolayevs. However, the ordeal isn’t over for these parents: the judge also ordered the parents to allow home visits by CPS workers, to abide by medical care providers’ treatment orders, and to not remove Sammy from any hospital unless the infant was discharged by the hospital.

So, effectively this preliminary order puts Sammy’s medical care back in the hands of the medical profession instead of where it belongs – with his parents.

CPS Response

Initially, the agency circled the wagons and declined comment, citing privacy laws. However, eventually the agency released a statement, partially quoted in this Yahoo! article:

The law is clear. If there is imminent risk of serious physical harm to the child and there is insufficient time to obtain a court order to remove the child from the care of the parents… the social worker or law enforcement officer can remove the child.

That does seem pretty clear – except that judging solely by the facts currently available to the public, the “imminent risk” exception to the court order requirement doesn’t really apply in this case.

This is made manifestly apparent by the court’s subsequent order, in which the court returned medical decision-making authority to Sammy’s parents – which would not have happened had there been any evidence of an ongoing imminent risk.

What Next for the Nikolayev Family?

Sammy is now receiving care from another hospital (not Sutter). His parents have stated he probably will require surgery.

Understandably, the Nikolayevs are worried about future CPS visits. They report that many parents spoke up following this story’s first publication, stating that they had experienced similar questionable actions by CPS – which, of course, is no surprise to any reader of this blog.

The Nikolayevs are not alone in this fight, however. They are represented by Joseph Weinberger, a Sacramento attorney who appears to focus on personal injury cases.

Additionally, Tim Donnelly, a Republican California Assemblyman representing Twin Peaks, CA, has now called for an audit of the CPS agency’s actions in the Nikolayev case.

And they’ll need all the help they can get. While I certainly hope that the next court hearing (scheduled for later this month) will put an end to the entire matter for the Nikolayevs, that is far from a foregone conclusion.

Parents have a constitutional right to make healthcare decisions on behalf of their children. CPS trampled those rights in this instance. Basically, CPS took a child out of a home because the parents sought a second medical opinion for their child.

While there’s certainly enough blame to go around (to the overreaction of the medical care providers at Sutter, for instance, for the wholly unsupportable decision to report obviously caring parents as abusers simply because the parents questioned their conclusions), the Sacramento CPS bears the brunt of the responsibility for this ridiculous assertion of its powers.

This is yet another tragic example of CPS abusing its power in regards to our children. And if you think this can’t happen to you, think again. These parents acted completely within their rights, followed the advice given by the physician providing the second opinion, and still had their infant child taken from their home.

I’ve written briefly before about collaborative divorce on this blog, but one misconception about this relatively new method of ending a marriage continues to pop up from time to time. That misconception is that collaborative divorce is just for the wealthy and those with significant net worth values.

Two studies conducted by the International Academy of Collaborative Professionals, however, set the record straight.

The IACP conducted a four-year study (link: PDF of summary results) in which practitioners responded to a series of questions aimed at crafting a more detailed picture of who, exactly, uses collaborative divorce services instead of the traditional divorce litigation route.

The IACP also conducted a separate client survey, this one aimed at the actual participants in collaborative law processes. (Here’s the link to the PDF of those results.)

What the IACP found is that a significant percentage of individuals who choose the collaborative process earn less than $100,000 per year. From the IACP’s Client Experience Survey summary:

Fifty-four percent (54%) of respondents had estates valued at $500,000 or more …  [n]ineteen percent (19%) had estates valued at less than $200,000.

Clearly, then, collaborative divorce is not just for the super-wealthy.

Clients often choose the collaborative process for many reasons. For example, the collaborative process is perceived to be much less likely to turn highly adversarial and contentious.

But it is also true that clients often fear the litigation process may become protracted and eat up financial assets that could be better allocated to taking care of each partner’s fresh start. As Florida attorney Adam Cordover wrote recently:

Though it is true that the up front fees in collaborative family law may be more than the traditional trial divorce, the specialization of the collaborative attorneys, facilitator, and financial professional allow for tremendous cost (not to mention time and emotional) savings over the course of the divorce.

Collaborative divorce isn’t the right choice for every couple, of course. But it’s certainly worth exploring as an option. Fear of the cost should not keep you from asking your attorney about it and exploring the possibility.

Münchausen syndrome by proxy.

It sounds dire. And for parents of sick children who have yet to receive a diagnosis from their medical care providers, it can be.

But it’s not the illness their children have.

It’s what their children’s doctors think the parents have.  And if the doctors and nurses in charge of your child’s care think you have it, prepare for a custody battle.

What Is Münchausen Syndrome By Proxy?

Münchausen (MSbP – sometimes erroneously referred to as MBPS) was named for Baron Hieronymous Carl Friedrich von Münchhausen, a rather colorful individual known for making up wild stories about his various “adventures.”

Like the related illness, Münchausen, MSbP is said to involve psychologically-motivated actions of triggering or causing medical symptoms in order to obtain desired attention. Both are considered mental illnesses.

Whereas in Münchausen, the person with the illness makes himself appear to be sick (or actually makes himself sick), in MSbP, the person with the illness makes another person sick, or appear to be sick, in order to obtain attention from medical professionals and others.

Typically, the target of the individual said to have the illness is the person’s infant or young child.

The origins of the term and the illness itself are in question. Many believe both were basically created in a 1977 paper by a British pediatrician, Roy Meadow. Regardless of whether he was the first to use the term, Meadow’s reputation in this area grew to prominence in the last decades of the 20^th century, but has since been severely questioned.

Those questions resulted in professional misconduct proceedings against him which dragged on extensively in the U.K. but ultimately resulted in a ruling striking his credentials being reversed, although the criticism against him stood.

Meadow had also testified as an expert at a number of abuse trials in the U.K. and was even knighted for his work. Based on his testimony, several parents were convicted of abuse in cases where their infant children died suddenly and without warning (Sudden Infant Death Syndrome, or “cot death” as it’s called in the U.K.). After Meadow’s work began to be questioned, many of those convictions were reversed.

The MSbP “Profile”

While MSbP sounds perfectly valid – and we’d certainly want to protect children from such sick parents – there are a number of troubling issues stemming from this diagnosis.

One of the main problems: the profile for the illness itself. Read for yourself – these are, according to the medical and psychology professions, a few of the hallmark indicators of MSbP:

• A child with one or multiple medical issues and who doesn’t respond as anticipated to medical treatment, or with a medical issue that progresses unusually in a puzzling or unexplained way.
• A parent who understands medical terminology and concepts, who seems to be interested in the medical details of her child’s case, seems to enjoy being in the hospital and shows an interest in other patients.
• A highly attentive parent who is reluctant to leave their child’s side and who themselves seem to require constant attention.
• A parent who appears to be unusually calm in the face of serious difficulties in their child’s medical course while being highly supportive and encouraging of the physician, or one who is angry, devalues staff, and demands further intervention, more procedures, second opinions, and transfers to other more sophisticated facilities.

There are other indicators, of course, but in many cases, these four indicators alone have triggered suspicions in medical staff who used them as the basis for reporting those suspicions to authorities.

A Failure of Logic and of Compassion

Let’s take a critical look at these indicators again.

A child with one or multiple medical issues and who doesn’t respond as anticipated to medical treatment: If the medical professionals do not understand your child’s illness, have improperly diagnosed it, or failed to diagnose a co-existing condition, your child will almost certainly fail to “respond as anticipated to medical treatment.”

Does that mean you, as her parent, have MSbP?

A parent who understands medical terminology and concepts, who seems to be interested in the medical details of her child’s case…: Whenever a child becomes chronically ill, almost certainly this prompts her parents to buckle down and educate themselves on the child’s condition and medical terminology, in order to communicate more effectively with their child’s doctors and in order to provide better care themselves.

Does that mean these parents have MSbP?

A parent who … seems to enjoy being in the hospital and shows an interest in other patients: If your natural orientation and mood as a person is one of compassion, stoicism, and optimism, you too might appear to a casual observer to “enjoy” being where you are. Of course you don’t enjoy it – you’re heartsick and worried to distraction. You just happen to be the kind of person who feels compelled to put on a brave face. You might also strive to remind yourself to show interest and compassion for others around you, too, to avoid becoming too self-absorbed.

Do any of these behaviors mean you have MSbP?

A highly attentive parent who is reluctant to leave their child’s side and who themselves seem to require constant attention: Of all the indicators for MSbP, this one strikes most thinking, rational people as absurd.

What parent of a chronically sick child wouldn’t be reluctant to leave their child’s side? What parent of a chronically sick child wouldn’t need some help and support during that crisis?

Does that mean that parent has MSbP?

A parent who appears to be unusually calm in the face of serious difficulties in their child’s medical course while being highly supportive and encouraging of the physician, or a parent who is angry, devalues staff, and demands further intervention, more procedures, second opinions, and transfers to other more sophisticated facilities: Here’s the “damned if you do, damned if you don’t” Catch-22 of MSbP indicators. You can either support your child’s medical care providers and try to remain calm, or you can lash out, give voice to your frustration and demand better answers for your child’s care.

Either way, the medical staff could decide you have MSbP.

In a future post, we’ll look at a few ways in which MSbP has been approached by the legal system in the U.S. and in the U.K.

Pardon the tongue-in-cheek headline, but, as a divorce and custody attorney, I have to admit that sometimes it seems as if straightforward advice may not get through quite as clearly as satire does.

So, in that slightly-satirical-but-completely-serious spirit, and in honor of the day (though I’m not fooling you here!),  here’s my own version of David Letterman’s “Top Ten Lists”: The Top Ten Ways to Thoroughly Make a Mess of Your Custody Case.

#10: Don’t Listen to Anything Your Attorney Says.

It’s not like you’re paying him or anything …

#9: Instead, Do Everything Your Second Cousin (Once Removed) Who Got Divorced and Won Custody Twenty-Two Years Ago In a Completely Different State Says You Should Do.

Because of course he’ll know more than your lawyer, with three years of law school and ten-plus years of actual experience under her belt …

#8: Never Forget the Ultimate Goal Is to Really Stick It To Your Ex-Spouse.

Isn’t that what the court system is for, when you get right down to it?

#7: Ignore the Court Order At Will.

It’s not like the court order carries the force of law or the threat of jail time if you don’t do what it says. (Actually, no, it is that. It is exactly like that.)

#6: Don’t Worry About Keeping a Case Notebook – You Won’t Forget Any of This Stuff, And It’s Not Like It’s Important Anyway.

Details, schmetails. You’ve got a brain like a steel trap, right? And you never forget where your car keys are, either, do you?

#5: Wait Until the Very Last Minute to Get Your Chronology Together.

“Um … when did we get married? Lemme think … well, I know Clinton was president … or was it Bush? Yes, that’s right, it was Bush. Wait, which Bush, though?”

#4: Take Every Opportunity to Show the Judge What You Really Think of Her.

Roll your eyes, make derogatory comments under your breath, give her “the finger” – judges just love that kind of behavior.

#3: Badmouth Your Ex to the Kids Every Chance You Get.

It’s important that they know every single detail of every single one of your many passionate feelings. It’s called “honesty,” right? Sure! What could possibly go wrong with this strategy?

#2: Even Better, Enlist the Kids In Your Campaign to Ruin Your Ex’s Reputation.

Make your kids co-conspirators? Why not?

#1: Kids? What Kids?

See #8. You’re not really in this for the kids’ best interests, anyway.

In the previous post, I shared a little background on the Hague Convention on Civil Aspects of International Child Abduction (“Convention” for short). This post, part 2 on “Parental Abduction and the Hague Convention,” will cover several concrete things you need to know and do in the event this happens to you and your family.

First and Foremost …

Before you do anything else, call your local law enforcement agency.

I cannot possibly overstress this point.

So I’ll say it again:

Before you do anything else, call your local law enforcement agency.

You may be tempted to do one of two things, either of which would be a mistake:

1. Underplay the event and attempt to negotiate directly with the absconding parent; or
2. Give way to your rage and start a massive call-campaign aimed at enlisting the aid of people and organizations on the national and international level.

Instead, take a deep breath, and call the police, immediately.

Your local law enforcement agency has connections, methods, procedures, and training in place specifically designed to put into place a system designed to help you. That system will almost certainly not move as quickly as you want it to. But it is the strongest ally you will have. Start local.

Before you do anything else, call your local law enforcement agency.

Next, contact the National Center for Missing & Exploited Children (NCMEC).

NCMEC was established in 1981 by John and Reve Walsh, in the wake of the kidnapping and murder of their son, Adam Walsh.

With over 30 years of hard experience on the ground aiding parents of abducted children, NCMEC has an invaluable support network already in place to help you through the nightmare of an abducted child.

Calling them after contacting the local police – and having received a copy of your filed report – is to your benefit.

Yes, You Need an Attorney …

… and preferably one with experience dealing with parental abductions and the complicated legal mechanisms involved in getting your children back home safely.

The Office of Children’s Issues

Every signatory to the Hague Convention is assigned or has designated a “Central Authority” to serve as the clearinghouse office in abduction cases where the Convention may apply.

In the United States, the Central Authority is the Office of Children’s Issues within the Department of State.

Ask your attorney to contact the OCI as soon as possible.

Get Whatever Help You Need to Cope

Finally, don’t be afraid to reach out to professional counselors or therapists in order to help you withstand the immense and often overwhelming stress you will inevitably face.

Getting your children back home safely is possible. But this is a marathon – not a sprint.

Be prepared for the long haul by making sure you take the steps necessary to surround yourself with a team of experienced professionals – law enforcement, legal, political, diplomatic, medical and emotional/psychological – who will be part of your team.

As Joshua and Sharyn Hakken now sit in custody, awaiting trial on multiple felony counts, one thing has become abundantly clear: the Hakken family history is a troubled one.

The Hakkens – parents of two young sons – lost custody of their children after Louisiana police found the young family ensconced in a motel room surrounded by weapons and illegal drugs. The police thought the parents were behaving abnormally and took the kids into the state’s custody.

And so the great machinery in place to terminate parental rights began to move against the Hakkens.

But instead of combating the allegations of abuse and neglect properly – in court, aided by competent counsel – the Hakkens took a slightly more direct approach. Joshua Hakken even attempted to take the kids by force once before, showing up at a foster home armed with a weapon, before fleeing the scene after the foster parents called the police.

When the children were then placed in the care and custody of their maternal grandparents, the Hakkens apparently conceived of a desperate plan – a plan that they put into place several days ago when they once more attempted to take back custody of their kids by force.

This time, they were successful. Joshua Hakken allegedly broke into the grandparents’ home, tied up the grandmother, and fled again –this time, with his sons. Despite national BOLOs (“Be On the Look-Out” requests from law enforcement agencies) and Amber Alerts, the Hakkens weren’t found for days.

The entire Hakken family was finally spotted – on the beaches of Cuba, of all places. The Hakkens had abducted their own kids via a sailboat called the Salty Paw. Cuban authorities took the family into custody and returned them to U.S. authorities.

Thankfully, the Hakken children are safe and sound, and back in the custody of their grandparents. Their parents, on the other hand, are in jail without bond, awaiting trial on multiple felony counts, including kidnapping and assault.

As many U.S. parents (and parents all over the world, to be sure) have discovered, when a child is kidnapped by a non-custodial parent and taken to a different country, such speedy reunions are all but nonexistent. It doesn’t take days – it takes weeks, months, even years, and that’s only if it happens at all.

One source of international law, however, is in effect to assist parents whose children are victims of international parental abduction.

The Hague Convention: History and Overview of Its Provisions

Its full and formal name is the Hague Convention on Civil Aspects of International Child Abduction, to distinguish it from other “Hague Conventions.”

The overarching purpose of the Convention is to preserve the status quo – whatever custodial and access provisions were in place and in force immediately prior to any wrongful abduction or event that constitutes interference with custody, or interference with access to the child/children.

The Convention does not provide any new substantive rights, nor does it validate any particular country’s existing substantive provisions pertaining to custody or visitation matters.

Instead, the focus of the Convention is on procedural mechanisms to speed up the return of children who have been kidnapped or abducted and taken across international borders.

Signatory Countries to the Hague Convention’s Provisions

As of December 12, eighty-nine countries (including the United States) are signatories to the Convention’s provision.

The most recent additions to the list of countries in which the Convention is now in full force and effect are Guinea and Lesotho (a small country in Africa) in 2012, and South Korea in 2013.

Speedy resolution is a key aim of the Convention’s provisions. Member countries – and, by extension, their judicial and law enforcement bodies and agencies – agree to move “expeditiously” through their standard proceedings whenever a wrongful abduction takes place.

Further, each member country must move to conclude those proceedings with a final determination of rights and remedies no later than six weeks following the date the proceedings were commenced.

The Convention’s Definition of “Wrongful”

The Convention’s procedural protections come into effect whenever the removal of a child is deemed “wrongful.” Here’s what the Convention says in defining “wrongful” removals:

a. It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. …

… From the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other, is … wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise.

Coming Up in Part Two: What to Do If It Happens to You

In the next post, we’ll explore more about the Hague Convention’s provisions that can help parents coping with the nightmare of international child abduction.

I’ll also offer some suggestions on what to do in the (hopefully unlikely) event that it happens to your family.

Other Resources

• The Hague Conference’s website section on Child Abductions
• Wikipedia entry for the HCCAICA

According to an old maxim, you should never raise your voice to complain about a problem unless you can offer a solution.

I’m not sure how true that is – seems to me that there is value in merely pointing out that the house is on fire – but it does seem only fair that, after pointing out serious problems with CPS investigations, I give some space to constructive suggestions on how to fix those problems.

In other words: If our “house” is in fact on fire, then allow me to point out three potential firefighting tools at our disposal.

Offer Better Training in Investigative Techniques and Procedure

First and foremost, CPS must stop asking its social workers to become police detectives, or failing that, must offer far superior training in proper investigative procedure.

Social workers are trained and equipped to evaluate issues such as the suitability of housing for a child, or whether the child is properly fed and clothed, or if the child is exhibiting symptoms of untreated medical or psychological conditions. That’s what they are passionate about, and that’s their job.

It is fundamentally unfair to those people – most of whom, I still believe, are good people who mean well – to expect them to become Serpico and investigate whether criminal activity took place between a parent or caretaker and a child.

But if you are going to expect these workers to fill the role of detective in such high-stakes scenarios that directly and immediately affect the most basic Constitutional rights of the targets of those investigations, then you’d better improve the training the investigating workers receive.

They need to understand basic principles, such as interviewing techniques, evidence-gathering procedures, and civil rights laws.

Most of all, they need to understand that human psychology is much more complex than their training and experience might have led them to believe, and they need some training in causative logic and critical thinking – i.e., just because A is true, does it necessarily follow that B and C must also be true?

Please understand, I’m not saying child welfare caseworkers are illogical or that they lack common sense.

Rather, it’s the normal environment these workers function in that requires and cultivates a very different mindset than the one that ought to be employed in the investigation of abuse claims.

Simply put, caseworkers investigating abuse allegations are no longer advocates but must remain neutral, especially during the early days of the investigation.

And that segues nicely into the second suggestion…

Respect and Maintain Boundaries Between Different Roles and Functions

It seems obvious: A counselor cannot play investigator and advocate in the same case.

The roles are simply incompatible in the same individual. A completely different mindset and approach are required to investigate a criminal act as opposed to counsel the victim or advocate for her interests.

First and foremost, an advocate must believe the victim’s story without reservation or hesitation. But an investigator cannot simply believe the story being told straight from the outset.

Personnel who are investigating the charges, therefore, must be trained in critical thinking and must consciously resist the societal impulse to “believe the child.” That’s not to say the investigator must never believe the child.

Rather, what I’m advocating is true skepticism. The true skeptic never says “That couldn’t have happened” or “I’m absolutely sure that did happen.” The true skeptic, instead, says, “I understand you’re saying that this event occurred. Now, I’m going to go look for evidence that it did occur and for evidence that it did not occur.”

It’s that last bit – the willingness to search for evidence against the truth of the accusations – which is so often missing in false abuse cases.

Get Much Better at the Forensic Interview Process, and Learn to Spot When a Child Has Previously Been Questioned in a Leading Manner

I’ve combined these two suggestions, because they both concern the most basic element of an abuse investigation: the interview of the alleged victim.

Children are highly susceptible to leading interview methods. If you’re not highly trained and experienced in forensic interviewing techniques, often the result of a sequence of interviews with the child is a false planted memory of abuse that never actually happened.

What this means is that even a well-intentioned, educated adult who cares about the child in a false abuse case can inadvertently do as much damage to the child as if the abuse had actually occurred. This is true because the child’s brain and psychological conditioning make no distinction between the memory of something that actually happened versus the “memory” of something that didn’t happen at all.

In both cases, the resulting trauma to the child is the same.

Not only is the child traumatized, but the alleged “perpetrator” then becomes the next victim, through the loss of reputation, standing, employment, support, relationships, and perhaps even freedom.

Proper forensic training techniques teach interviewers to avoid the easy-to-miss traps of phrasing, intonation, question sequence and stress that trip up the well-intentioned novice and plant those false memories in a young, impressionable, and undeveloped brain.

False Allegations vs. Abuse Epidemic: A False Dichotomy

I think the problem stems from a false dichotomy that has been established by the media and some professional talking heads and pundits. I believe that as a society we may have been conditioned to think about these issues in the context of an either/or equation:

Either the U.S. has an epidemic of child abuse and CPS doesn’t do enough to stop it …

OR the U.S. has a growing epidemic of false abuse allegations and CPS is too eager to lock up innocent people and take away their children.

That’s a false dichotomy.  Both scenarios can be true, because each case of alleged abuse must be viewed independently.

It’s better to think of these two conditions as opposing extremes, and equip and encourage our CPS agencies to tread the middle line more carefully.

After you’ve successfully defended your client’s good name against false allegations of child abuse and somehow shepherded him safely through the quagmire of a horribly abusive investigation, what’s next?

Is there any remedy for a parent who has been intentionally put through the grinder of a false abuse charge?

There are remedies, of course, but whether they are available for your client will depend on your jurisdiction, the facts of your case, and the persuasiveness of your evidence.

Civil Rights Action Under Section 1983

By far the most common approach is to file suit in federal court under section 1983 of title 42 of the U.S. Code.

This section provides a remedy through civil litigation for violations of constitutionally protected or statutorily-granted civil rights.

Money damages are available against defendants, but there is a requirement that the defendants were acting “under color of law.” This would be satisfied if the complained-of actions took place in the context of a child welfare agency investigation of false abuse charges.

Defendants can claim immunity through different legal doctrines. One of the most common forms of immunity is the concept of qualified immunity.  This defense protects defendants sued in their individual capacities who exercised discretion in discharging their duties.

To defeat a claim of qualified immunity, the plaintiff must then show that the defendant’s “discretionary” actions violated a clearly established right of the plaintiff’s, and that a reasonable person should have known that the defendant’s conduct violated the plaintiff’s rights.

State Law Causes of Action

In addition to the federal approach through section 1983, plaintiffs may also elect to pursue a state law cause of action.

Generally, in the context of a false abuse allegation case, that cause of action will be a tort claim. Common torts alleged in such cases can include intentional infliction of emotional distress (or the tort of outrage), defamation, and/or injury to reputation.

Plaintiff’s counsel must be careful to consider any “Tort Claims Act”-type legislation enacted by the state in which the investigation occurred. These statutes can frequently give government defendants additional protections from suit and liability, and may also impose certain procedural “hoops” a plaintiff must jump through in order to litigate the claim at trial. Additionally, most state TCAs will include some cap on damages, which may severely limit the amount recoverable at trial, if successful.

The Court of Public Opinion and Legislative Advocacy

Of course, if a lawsuit is pending in any court, it would be improper to litigate the case in the press. Most jurisdictions’ professional responsibility rules would prohibit that sort of tactic, anyway.

But if for whatever reason the vindicated client does not want to prosecute a lawsuit, or litigation is not appropriate under the facts of the case, there is nothing to prohibit him from attempting to raise public awareness, both of his case in particular and the problem of false abuse charges generally after the charges have been dropped or a successful verdict delivered.

Lawyers should take care to caution clients who show interest in this approach about the boundaries and contours of First Amendment protections of speech – and what the right to speak freely both does and does not mean.

Oftentimes, a vindicated client will express an interest in pursuing more formal advocacy work for this cause. If so, encourage them to hire a press specialist who can work with them to craft a message and present a polished image to the press.

One of the most helpful things my clients in false abuse cases can do to help me do my best work for them is to prepare and maintain a current case notebook.

What’s a Case Notebook?

Simply put, a case notebook is a collection of documents and notes relevant to the ongoing case that’s maintained and kept current by the client.

That last part is important. Of course as a lawyer I maintain a separate set of files and compile my own case notebook when court appearances begin.

But this case notebook is particularly important, because it’s the client who has the most personal involvement in the ongoing dispute. Only the client, for instance, can give me a factually accurate written summary of the last six visitations with the child in her own words.

Formatting and Setting Up a Case Notebook

The best format for a case notebook is a three-ring binder, in my experience. Clients can print off digital documents (e.g., emails) and use a three-hole punch to insert them into the notebook.

Alternatively, the client can use page protectors – for instance, with court documents or other official communications.

It’s best to use section dividers for different types of documents, perhaps using the headings in the next section as a guide or template.

Types of Documents to Maintain in Case Notebook

The client should maintain the following kinds of documents at a minimum.

Official Documents & Correspondence

The client should keep his own set of the originals and/or copies of all official case documents and correspondence in the case. Suggest the client maintain originals in a protective folder located in the notebook.

Notes

Arguably the most important part of the notebook – the client should keep and keep current an ongoing set of notes, especially about:

• Child’s behavior during visitations
• All conversations with the child, the other parent, and all case workers and other professionals on the CPS “side”
• Daily activities – this can be crucial in rebutting specific claims of inappropriate behavior

Task Lists

Anything the client has been tasked to do – either by you as her attorney or by anyone associated with CPS – should be maintained in a separate list in the notebook, along with the client’s notes about when and how the task was completed.

Case Chronology

The client is your best source of information about the timeline of events, and a good, thorough chronology is invaluable in preparing your case.

Encourage the client to start a chronology (preferably in a digital document which can be more easily edited) starting with the beginning of the relationship with the other parent, and running through current events.

Copies of Supporting Documents

Any supporting documentation – school records and correspondence, cards from the child or other parties aligned with the other parent or extended family, report cards, medical appointment slips, etc. – should be separately maintained in a protective folder.

Questions

As much as you may obsess over each client’s case, your client in a false abuse case will be even more prone to worry and anxious thoughts.

Encourage your client to keep a running list of questions and add to that list whenever a new question or concern occurs to him. Then have the client bring in that list whenever you meet with him.

This is the best way to help the client achieve more emotional clarity, and can also help you capture key points that might help your case quickly.