This update on the Haleigh Poutre case shows both the power of the Department of Social Services (DSS), and the “we never admit we are wrong” DSS culture AND how little the courts can do to rein in DSS. Alison Avrett gave up custody of Haleigh to her sister under DSS pressure when Avrett was a 16 year old, by the way. No abuse, and only a “bad boyfriend”, no neglect. Today Alison is a married woman raising several other children well.
As for “conflicts” I do represent children and parents in cases where DSS is involved. While sometimes DSS (tragically in my opinion) is “all there is”, all too often I see a DSS culture that never, ever admits DSS made mistake and that has done great harm to vulnerable people.
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Poutre family going to Statehouse
Saturday, December 09, 2006
By GEORGE GRAHAM
ggraham@repub.com
WESTFIELD – The grandmother of child-abuse victim Haleigh Poutre, angered over the state’s refusal to allow family members to visit her, said yesterday she will take her cause to the Statehouse on Monday morning.
Sandra L. Sudyka, of the Feeding Hills section of Agawam, said the state Department of Social Services has not allowed family members to visit Haleigh at Franciscan Hospital for Children in Boston since July 18.
A Suffolk County Superior Court judge, acting on emergency injunctions filed by Haleigh’s biological mother, Allison Avrett, ruled in October she would not force the state to restore hospital visiting privileges.
But Sudyka said it’s not right to keep Haleigh isolated from her family, especially as Christmas approaches.
“It is cruel and abusive,” Sudyka said.
Sudyka said she and Susan Molina, executive director of the Whitman-based Yellow Ribbon Kids Club, will go to the Statehouse on Monday to ask legislators to do what they can to restore visitation.
“We are going door to door,” Sudyka said.
DSS has had custody of Haleigh since Sept. 11, 2005, when her adoptive mother and stepfather, Holli A. and Jason D. Strickland, brought her to Noble Hospital with injuries, including severe trauma to her head, for which they were later charged.
Holli Strickland, Avrett’s sister, was shot and killed on Sept. 22, 2005, in an apparent murder-suicide at the hands of her grandmother, police said.
Although doctors reported that the battered and emaciated Haleigh was in a vegetative state with little or no hope for recovery, she has been improving and can eat and communicate on her own, officials have said.
Sudyka has said that during their June and July visits, Haleigh spoke several words and clearly relished their time together.
DSS officials could not be reached for comment yesterday.
©2006 The Republican
© 2006 MassLive.com All Rights Reserved.
about this whole case. In many ways, it’s reminiscent of Terry Schiavo. How is it that the diagnosis went from persistent vegatative state to miraculous speech after the DSS and a religious hospital took over the case? Why is it again that nobody can visit?
No – Haleigh did not improve AFTER DSS took custody. In fact, DSS lied to the SJC about how Haleigh was doing – and but for a terrific fight by John Thompson, John Egan, and Greg Schubert, Haleigh would not be alive at all. And her mother and others saw and communcated with her…DSS is another problem, all together – see http://www.socialaw…. for the SJC’s failure to provide guidance or protection when DSS wants to end a life – and see http://michellemalki…
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for more go to http://news.bostonhe… which details that DSS had four different social security numbers for Haleigh – and worse.
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In fact, but for the time bought by Thompson, Egan, and Schubert, the plug would have been pulled before Haleigh woke up. Brain injuries are far different in kids, and maybe DSS wanted a quick death and to sweep their failure to protect this child away before there was much publicity – what I do not understand is the failure of judges and the court system to protect her. Where were the Guardian Ad litems and the brain scans, I wonder?
is a whack job. Citing an article by her about the condition of this child is equivalent to citing Bush on global warming.
No, I suppose not.
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If you did, you would see that it is almost entirely a reprint of an article from the Boston Globe, which is otherwise lost behind their archive firewall.
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Granted, I suppose that it is possible that things printed in the Globe are likely untrue, but that is a sentiment I’m surprised to find on this site.
I clicked the link (reluctantly) to the whacko Michele Malkin’s spin on the case (and yes, I had an immediate visceral reaction to even clicking on anything related to her spew). I haven’t decided whom is more desperate and deranged — Ann Coulter or Michele Malkin. I think they’re having a duel to see which one can be more absurd and cruel. I didn’t bother with the Glob after reading the whacko. You do realize that MM fully supported the religious right in the Terri Schiavo debacle — right? Please read before making assertions about what I have or haven’t commented on.
Hey, guys! Did you read the Sharlene case I liked to? Ther est of it? The issue is not whether or not you like a particular journalist, but rather “Who is monitoring DSS”. Judges no longer can, thanks to two cases: Isaac and Jeremy.
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REASONABLE EFFORTS
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Before a child is taken out of their home, there is a requirement that “reasonable efforts” to prevent removal occur.
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PROBLEM: There is no definition of “reasonable efforts” required prior to removal of children in the General Laws of Massachusetts
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RESULT: In Massachusetts, the policy seems to be that it is worse to leave a child with indigent, ethnic, working poor or disabled parents than it is to terminate parental rights thereby destroying such families erroneously.
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PROBLEM: There is no neutral oversight as to whether DSS (The Department of Social Services) follows its own rules and regulations, or over the secretive determinations within DSS that lead to the change of a family’s “goal” by DSS. Under Commissioner Spence, poverty and the challenges of disability are all too often treated as unfitness, and no assistance provided to the family.
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RESULT: So-called “Service Plans” are designed for families totally by DSS, with no input by the involved parents, their care providers, or attorneys. These “one size fits all” service plans do more harm than good. Further, as soon as a goal becomes adoption, DSS reduces visitation between the parent and child or children to one hour a month in every county in Massachusetts. THOUSANDS of legal orphans are created, and the aggressive termination efforts of DSS have caused foster care costs, the legal costs paid by the commonwealth, and the case loads at Juvenile Courts to skyrocket.
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BACKGROUND
A. What are “reasonable efforts” and why they matter
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A state’s efforts to avoid taking a child into custody by making services available to assist the involved family are called “reasonable efforts.” Crossley, Will “Defining Reasonable Efforts: Demystifying the State’s Burden Under Federal Child Protection Legislation”, 12 B.U. Pub. Int. L.J. 259, 260 Spring/Summer (2003). The reasonable efforts requirement was put in place by the federal government to address the concern that agencies such as the Massachusetts Department of Social Services (DSS) were placing children in foster care unnecessarily. Id. 261.
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In Massachusetts no legislative body has defined reasonable efforts. There is neither guidance nor “quality control” over DSS to provide clear guidance as to what the provision of reasonable efforts entails. See Crossley at 262, G.L. c. 119 §1. Reasonable efforts as a protection against improper placement of children into foster care are effective only with “proper services.” Id. 280.
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While G.L. c. 119 §1 states a policy in favor of strengthening families, there is no definition of what strengthening families or reasonable efforts requires. First, the failure to enunciate any standard for reasonable efforts prior to termination contradicts G.L. c. 119 §1. The requirement to strengthen families is a meaningless phrase without a clear definition of what strengthening families requires.
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In fact, G.L. c. 119 Sec. 23B provides for services to the mothers of children borne out of wedlock, but not to the fathers.
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B. Comparison with States where Reasonable Efforts receive Protection
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Connecticut In In Re Eden F., 710 A. 2d 771, 782 (Conn App. Ct. 1998), rev’d on other grounds, 250 Conn. 674, 741 A. 2d 873 (1999), the Appeals Court of the State of Connecticut held that “reasonable” is synonymous with”…equitable, fair just”. That court, and a subsequent statutory change in Connecticut, held that the state has the burden of establishing by clear and convincing evidence that it has made reasonable efforts before termination of parental rights may be ordered. The court’s policy behind this determination and statutory change “…reflects the view that it is worse to erroneously terminate parental rights than it is to erroneously leave the family intact.” See, Crossley at 302.
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Minnesota Unlike Mass. G.L. c. 210 §3, which only mentions reasonable efforts one time and does not define what reasonable efforts should constitute, Minnesota statutes also view reasonable efforts as critical. Minnesota’s statutes provides extensive guidance as to the reasonable efforts required of their child protection agencies. Minnesota requires that its Courts ensure that child protection agencies provide reasonable efforts, and that such efforts include culturally appropriate services. In addition, the courts of Minnesota are granted express authority and required to ensure that its DSS equivalent “…exercise due diligence…” and “…use appropriate available services…” as well as that the DSS equivalent agency carries the burden of establishing that it has made reasonable efforts.
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p> Courts in Minnesota are required to determine whether the services provided by the DSS equivalent agency are: 1) relevant to the safety and protection of the child; 2) adequate to meet the needs of the family and the child; 3) culturally appropriate; 4) actually available, and accessible to the family; 5) consistent and timely as in provided without undue barrier and delay; 6) realistic given the circumstances. See Crossley at 303, See also Minn. Stat. Ann. §260.012(b).
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Massachusetts In contrast, the General Laws of the Commonwealth of Massachusetts make only two mentions of reasonable efforts, without either defining what reasonable efforts should be, or ensuring court oversight as to whether reasonable efforts have occurred. See G.L. c. 210 §3, in which the sole statement regarding “reasonable efforts” is embedded in the several pages of G.L. c. 210 §3(b), as follows: …such services as the department deems necessary for the safe return of the child to the child’s home if reasonable efforts as set forth in section 29C of said chapter 119 are required to be made, with respect to the child.”
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p> G.L. c. 119 §29C is no more helpful. Embedded in the preamble to §29C is the following: “…the court shall certify that the continuation of the child in his home is contrary to his best interests and shall determine whether the department or it’s agent, as appropriate, has made reasonable efforts prior to the placement of a child with the department to prevent or eliminate the need for removal from the home…”
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p> The failure to define or delineate “reasonable efforts” as well as the lack of authority of the courts in this state over what constitutes reasonable efforts is problematic.
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p> First, without a specific definition as to what constitutes reasonable efforts, DSS has total discretion, without any accountability or oversight due to the use of the words “…as the department deems necessary…” in G.L. c.210 §3.
2. Massachusett’s Courts have been stripped of the ability to protect children by case law.
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A. Current case law strips juvenile and probate court judges of both equity jurisdiction and the ability to act in the best interests of children (The Isaac and Jeremy decisions) Care and Protection of Isaac This case held that the courts themselves, whether juvenile, district, or probate may not order DSS to provide services based on the best interest of the child to either the child or the parent. See Care and Protection of Isaac, 419 Mass. 602, 604 (1995). In Isaac, the following question was certified to the Supreme Judicial Court by a single justice: “Does a judge sitting in a juvenile session have authority to order the Department of Social Services, over its objection, to provide a specific placement and a specific staffing level for a child who has been adjudicated to be in need of care and protection and committed to the Department’s (other than temporary) custody pursuant to G.L. c. 119, §26?”
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The Supreme Judicial Court responded: “We answer the question “No.”. The Supreme Judicial Court goes further, and states: The relevant provisions of G.L. c. 119, however, contain no general grant of authority to a judge to enter an order intended to be in a child’s best interests. Isaac, Id. At 609.
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In Isaac, the Supreme Judicial Court determined that the only standard of review available to any child or parent or guardian over the actions taken, or not taken, by DSS is that of error of law or abuse of discretion, which is measured by the “arbitrary or capricious test”. Id. 610. From the further reasoning of the Isaac court, this result appears mandated by the “finite annual appropriation”. provided to DSS. Id. at 611. The results of Isaac have been a social disaster, denying judges any real oversight as to the placement and service provision decisions of DSS.
Care and Protection of Jeremy Care and Protection of Jeremy, 419 Mass. 616, 622 (1995) further eviscerated the ability of judges to protect children or ensure reasonable efforts once initial custody is granted to DSS. In Jeremy, the juvenile court judiciary are stripped of all equitable powers. Id. 622.
3. The Department of Social Services is an out of control agency
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The SJC was troubled by the results of Isaac and Jeremy. Jeremy ends with a plea to the legislature to protect children and families by amending G.L. c. 119 and G.L. c.210 §3: “…we recognize that the statutory scheme is, in some respects, unclear and leaves room for the parties in this case, and in Care and Protection of Isaac, supra, to make conflicting arguments about the proper role of a court in reviewing the department’s placement decisions. The Legislature may wish to examine the statute to state more definitely the scope of a court’s authority when passing on these decisions.” Id. 623.
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Children do not vote, and poor and working class parents are unable to hire lobbyists, or conduct grass roots legislative campaigns. In the eleven years since the holdings in Isaac and Jeremy, no legislative action has been taken to rein in the unbridled discretion of DSS. Children have suffered. Parents have suffered. The result in Massachusetts is that poor families are deprived of their children wrongly. The costs of social services, court appointed attorneys, and legal orphans are collectively enormous and avoidable. This tragic waste of human capitol and social costs are both avoidable. For example, Connecticut has amended its statutes to avoid such tragic, unfair results. In Connecticut, its statutes require that reasonable efforts must be shown by clear and convincing evidence before termination of parental rights may occur. See Connecticut Statutes, Sec. 17a-112 (j). Further, in Connecticut a service plan to be valid must spell out “…specific steps which the parent must take to facilitate the return of the child or youth to the custody of such parent.” See Connecticut Statute Sec. 46b- 129 (j). Connecticut’s statutes protect children and families but that the statutory scheme of the Commonwealth, as interpreted by Isaac and Jeremy protects neither children, nor parents such as Appellant Father. The citizens of Massachusetts deserve better treatment then what the current statutes and culture of the Department of Social Services delivers.
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4. Proposed Remedy
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A. Immediate There must be a new Commissioner of the Department of Social Services who will stop the war on the poor, and end this needless destruction of poor, working class, and immigrant families. Families must come first, not racking up the highest possible rate of terminations of parental rights and adoptions. Poverty does not equal unfitness, and the time it takes to locate housing should not be a basis for termination of parental rights, as it is under the current Commissioner. Further, under the current Commissioner the DSS aggressively seeks to terminate the parental rights of disabled parents.
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B. Middle and Long range
The statutes of the Commonwealth of Massachusetts must be amended to define and protect the policy that reasonable efforts to support and preserve families are a prerequisite before any removal or move to terminate parental rights can be taken.
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http://wggb.com/qod….
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PLEASE FORWARD WIDELY TONIGHT
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THANK YOU.
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Deb Sirotkin Butler
AmberPaw@aol.com
To post testimony for this committee go to:
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House.Can@state.ma.us
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I am not sure who is reading the written testimony, mind, but the auto responder is prompt. Also, this Committee was set up due to the Haleigh Poutre case.