[Cross-posted from The COFAR Blog]
The Patrick administration has dramatically reversed itself in the Justina Pelletier case, and asked a judge to reunite her with her family, The Globe reported this week.
I think this reversal shows the power that Governor Patrick has to intervene in these cases. He should do the same with the Duzan and McDonald cases, in which the Department of Developmental Services has similarly supported draconian restrictions on contact by family members with loved ones in the DDS system.
Justina Pelletier spent nearly a year in a locked ward in Boston Children’s Hospital after doctors there disagreed with the family’s diagnosis that Justina was suffering from mitochondrial disease. The Children’s Hospital doctors claim her illness is psychological, and as a result they got a judge to agree to award temporary custody of her to the state Department of Children and Families.
Late last week, DCF reversed its longstanding opposition to reuniting Justina with her parents and filed a request with the judge to allow her to return home. The Globe noted that Executive Office of Health and Human Services Secretary John Polanowicz played a personal role in trying to broker a resolution of the case. There is no doubt in my mind that Polanowicz was acting on orders from the governor and that the governor was starting to view the Pelletier case as a political liability for himself and wanted to see it resolved.
The state, human services and health care providers, the courts and their appointed guardians and other authorities have enormous coercive power over families, particularly when it comes to making decisions about care for persons with illnesses or disabilities. This power is often exercised without restraint even though federal law explicitly states that families should be considered the “primary decision makers” in the care of loved ones with disabilities. But that raw exercise of power does come with some political risks if the case has a high enough public profile, and the Pelletier case certainly has had that.
Unfortunately, the mainstream media has so far been uninterested in looking into the Duzan and McDonald cases and potentially others like them. As a result, those cases have not been resolved.
The state’s power to intervene in family affairs is a sensitive political issue that politicians apparently don’t want to involve themselves with unless they are pushed into it through public pressure. I’ve asked two candidates for statewide office in Massachusetts, who have touted their political independence, for their view on the Pelletier case — Don Berwick, who is running for governor, and Maura Healey, who is running for attorney general. (I asked Berwick the question in an online “town hall” meeting that he held a couple of weeks ago, and I posed the question to Healey as a comment in a blog post about her.) Neither candidate has responded.
Since I “participated” in Berwick’s town hall event, I do get constant requests from the campaign for money. But personally, before I support a candidate, I want to see that they have the political fortitude to answer a question about the Pelletier case or a case like it.
#Free Justina
Never forget!
that you feel that John Polanowicz was acting on orders from Mr. Patrick in not opposing the legal paperwork filed by Justina’s attorneys. However, callers to the governor’s office are told that only Judge Johnston can end this mess and send Justina home.
And if not for Justina’s father, Lou Pelletier, who courageously ignored Johnston’s very unconstitutional gag order, we the public would still be in the dark about this matter.
…I don’t think I like the idea of the Governor or his people intervening in a specific case. This could so easily result in better treatment and outcomes for those well-connected vs. not so much. A formal amicus brief might be one thing; otherwise I have separation of powers concerns.
They have filed papers with the court asking that Justina be sent home. When I said that the governor has the power to intervene, I meant he has power to order his subordinates, e.g., the secretary of health and human services, to take a specific position with regard to the court case. That, I believe, is what happened here.
The judge in this case is relying heavily on the state’s position, so I think it is highly likely he will ultimately rule in favor of Justina’s return home. It’s the way the process works, and should work, except that more weight should be given throughout the process to the wishes of the individual involved and their family.
the idea of a competitive figure skater seeking treatment for flu symptoms and ending up as a disabled hostage, but that is exactly what has happened here. I think it’s about time someone did the right thing.
It’s horrifying to me that this sort aggressive taking of children by the state can even come to pass. There is absolutely NO excuse for it, and many people should be fired for it, including the doctor at BCH who initiated the whole thing.f
So, your premise is that no children (no matter how badly they are being abused by their parents) should ever be “aggressively taken by the state.”
If that’s not your operating premise (which I assume and certainly hope it’s not), then we are talking about complex and difficult decisions about the degree to which a particular child is suffering from parental abuse. Decisions that often, as in this case, involve expert judgment calls by large teams of medical professionals, social workers, lawyers/judges, and state officials.
No matter how much you’ve read about this case, I find it highly unlikely that your partially-educated opinion is more “correct” than the judgment calls that have been made by dozens of experts with more direct knowledge of the circumstances in this case.
To suggest that there is “absolutely NO excuse” for the decisions made in this case and that “many people should be fired” is extreme hubris at best.
on this case has been deemed to be only “partly educated.” Please be advised that only the “experts” make the “correct” decisions in these cases.
The opinions of anyone who hasn’t actually been involved intimately in this case – opinions which are usually developed based on news accounts – are by definition only partially-educated. Sorry, David, but I’d put your opinion and mine in to that category as well.
Instead you believe anyone can be an expert and/or that all opinions should be given equal weight, regardless of their level of expertise and knowledge on an admittedly complex matter?
To me, the very idea that we should base complex public policy decisions (much less decisions about who should lose their job) on the opinions of those without any real, first-hand knowledge of the matter seems ludicrous. Persistent and severe Somatic Symptom Disorder is a real thing whether non-experts understand it or not.
but I do believe the Pelletier family does have first-hand knowledge of the matter, and their opinion is backed up by medical professionals from Tufts. Yet, the family’s view has been completely dismissed by certain “experts” who happen to disagree with other “experts,” and a judge has sided against the family.
This is not a simple case of the experts versus the “partially educated.” The experts happen to disagree with each other in this case. So, that’s proof in itself that the experts are not always correct. As the Mark Knopfler song goes, “Two men say they’re Jesus. One of them must be wrong.”
I think we see that happening everywhere, not just in the medical field. Everything needs oversight, and sometimes the only people watching are the ones not directly in the middle of it.
I meant when they are taken without a valid reason. I’m a little worried that it happens too often. Without the efforts of the Pelletier family and various other knowledgeable people who got involved, it would have gone on without intervention for who knows how long. There is no excuse for that. The doctor should be fired. Also, people involved in this case from the DCF should be fired. They don’t have the skills or the temperament to do the job they are doing.
I agree that children should never be taken from a parent without a valid reason. I agree that it happens too often. I agree that it seems to have happened in this case.
I only wish there was more outrage about the reality that it happens many times a day, every day, each time a father goes through a divorce in this state. The “guideline” (which means the default unless a judge can be persuaded otherwise) is that the mother receives sole physical custody, together with a specified visitation schedule. While it is true that “shared legal custody” is also awarded (as a guideline), that is irrelevant to day-to-day life.
“Sole physical custody” means that any mother can effectively block any father’s access to their children through any number of ways — signing up the children for clubs and activities that conflict with visitation is typical. “Shared legal custody” is meaningless because each and every alleged violation has to be reported to the Court, and the mother then claims that the father is abusing the process and harassing her.
As horrific as this case is, Massachusetts is chock full of parents who have had their children taken without a valid reason.
They are called “divorced fathers”. Happy Father’s Day.
Does it have any basis in law whatsoever? Shouldn’t the guideline be best interest of the child, with maybe a bit of a default toward shared legal and physical custody unless it can actually be shown that one of the parents is unfit?
My understanding is that the guideline is derived from court-tested interpretation of the relevant law.
At the time of my last divorce (in 1998), I am reasonably certain that the prevailing standard for the father was shared legal custody, with sole physical custody awarded to the mother together with a court-ordered visitation schedule.
In the eyes of the law, proving that a mother is “unfit” is an extraordinarily high standard. The example cited to me during my last divorce was a mother who was convicted of drug trafficking from the home she shared with her minor child (of whom she had sole physical custody). The court determined that since she took care to keep the child out of the room where she conducted the illegal exchanges, she was taking appropriate care and the court ruled in favor of the mother.
My understanding is that in recent years, the trend has been towards awarding both sole legal and physical custody to the mother. The cited motivation for this is the desire to reduce conflict and hostility between the parents in order to preserve the best interests of the child.
Though a diversion from the topic of this thread, it might be interesting for one the several attorneys who participate here to comment on past
and current court practices.
Especially when parents use children as tools for revenge. I’ve seen it happen on many occasions. Men do it too. I think if the father was greatly involved in the children’s lives prior to the divorce, then the physical custody should be equal in measure. If the father barely spent any time with the kids and doesn’t even know what the child’s pediatrician’s name is, he has no business asking for joint physical custody and is only doing it to torment his ex-wife. Which men often do. Just to add some balance to your argument.
So it would seem to come down to a clarification of what should be considered a “valid reason” to take children away from their parent.
While I mostly agree with you, the devil is in the details. It seems to me that the presumption should be that every parent loves and cares for their children, that the burden of proof should be on the party claiming that access should be limited, and that the burden of proof should as high in divorce cases as the threshold we agree should have been demanded in the case in question.
When a married couple jointly agrees it is important for one parent to be a stay-at-home mom or dad, and the other parent takes on a demanding full-time job in order to support the family, then in a subsequent divorce it is unfair to then remove the children from the parent who worked full-time because that parent didn’t spend enough time with the children.
I hope that custody awards between mothers and fathers will become balanced as we solve the gender-based income inequality problem that so often both aggravates the custody imbalances and spurs the heartbreak of divorce in the first place.
Good for the Pelletier’s that they got this case out in the open.