Delaware County litigants in Family Court before Becker - attention

Attention to those litigants in child neglect and abuse proceedings who had Judge Carl Becker (now retired) presiding over their cases after his re-election and ruling against him.

The Petitioner, Delaware County Department of Social Services, is officially represented by the County Attorney.

Porter Kirkwood, who is now running for a judge, was County Attorney since 2013.

Porter Kirkwood and his entire family, according to records filed with the NYS Board of Elections, supported Becker in his re-election campaign of 2012.

I believe, such information had to be disclosed by Becker and by Kirkwood or his "of counsel" assistant County Attorney Amy Merklen.

I am sure such information was never disclosed.

I believe that there are grounds to make motions to vacate findings by Becker in favor of Porter Kirkwood's client based on such non-disclosures.

The first book in the series of 3-language electronic, print, audiobooks, podcasts and lectures is close to publication in November-December this year

I am preparing a series of informational materials for publication on the topic of defense in neglect and abuse proceedings in New York.

The series will include:

• 15 single-language books (as planned now) covering various aspects of child neglect and abuse proceedings, from the point of prosecuted parents;
• podcasts;
• lectures/courses of study 

The books will come in three formats:

• electronic books (Kindle or other electronic format, I am deciding);
• print;
• audiobooks

and in three languages:

• English - author's version;
• Russian - author's version;
• Spanish - translation

The first book of the series is planned to come out in November-December of this year. 

It will be in English and will be in electronic and print format.


I hope to release the matching audio-book, podcast and a lecture/educational course close in time.

Of course, it is a steep learning curve for me to learn new tricks at my old age - podcasts, audiobooks, online lectures, designing your own book covers...

Yet, it is as exciting as it is difficult, and I value more than anything else my independence from any kind of licensing and permits.

Self-publishing your own books is not yet licensed in this great country, as nearly everything else is, so I will share my knowledge this way.

The Spanish version will be published as soon as the translation is ready.  I am working with potential producers and presenters of the Spanish-version podcasts, audiobooks and lectures.

The Russian set will follow the English version.

It is a large project and, I am sure, will take a long time to complete.

Yet, I think that such information is badly needed for the public, and I will do my best to provide it.

==

Update as of March 26, 2016 - suspension of my law license on November 13, 2015, and the time required to fight it, delayed the book's, and the series', publication, but I am working on it.

The Rooker-Feldman doctrine does not prevent parents from recovering improper child support payments from social services obtained by social services from New York Family Court

I've just posted a blog post in my other blog that pertains, generally, to the Rooker-Feldman doctrine and civil rights litigation - but is factually about a case where social services took a disabled child from parents, placed him in a residential facility and then went back to Family Court to sue parents for support payments, and obtained such payments, in the amount of $1,200.00 a month, in violation of federal law.

Parents sued in federal court - and recovered $104,564.32 in reimbursement of child support, plus interest and attorney's fees in the federal civil rights litigation.

The U.S. Court of Appeals for the 2nd Circuit ruled, in a case that remains a mandatory precedent  for New York, that New York Family Court is not a court of competent jurisdiction for purposes of jurisdictional bar on civil rights actions in federal courts based on claims arising out of federal law.

Parents whose rights are violated in New York Family Courts by social services!

Be aware of this precedent and use it to defend against "Rooker-Feldman arguments" in motions to dismiss in your own federal civil rights lawsuits.

Use of template agreements for ACDs with admission as TOP as a tool of coerced discovery under the threat of incarceration is unlawful under the Family Court Act 1029(b)

In child abuse/neglect proceedings, social services in New  York often use temporary orders of protection as tools to ensure access to the parents' home after removal of the children into foster care, and as a tool of forced supervision over parents and to mandate parents to speak to the Social Services, thus providing to the Social Services, outside of any formal discovery, an opportunity to testify and state that on a particular date the parent talked to them and said "A", even if the parent did not talk, or said "B".

Yet, use of temporary orders of protection for the above described purposes in child neglect proceedings is unlawful.

Child neglect and abuse proceedings in New York are creatures of statute, and what can or cannot be done in them is strictly circumscribed by the U.S. Constitution, New York State Constitution and the New York Family Court Act.

Family Court Act 1029 clearly enumerates the only bases upon which temporary orders of protection can be granted in child protective proceedings in New York, and what can or cannot be done through the temporary orders of protection.

NECESSITY OF A WRITTEN MOTION to obtain a TOP

The temporary orders of protection must be done through "applications".  "Applications" are written motions on notice to the interested parties.  Thus, temporary orders of protection (TOPs) may not be imposed without a written motion on notice to the interested parties, giving them an opportunity to be heard on the issue of imposition of the TOP or immediately after it was imposed - if imposition was on an Order to Show Cause for good cause shown.

Do not hesitate to make a motion to vacate a TOP if it was entered against you upon an oral request of social services.

NECESSITY TO SHOW GOOD CAUSE to obtain a TOP

Too often, judges give TOPs to social services simply for the asking.  That is not the lawful way to do it.  TOPs may only be given "for good cause shown", and should be vacated if they were given for the asking. 

Do not hesitate to make a motion to vacate if a TOP is entered against you for no good cause shown.

A TOP IS NOT A FINDING OF WRONGDOING - Family Court Act 1029(b)

As a consequence:

1) Social Services may not be called "a supervising agency" in the TOP - because when a TOP was granted before the adjudication of neglect or abuse and before the disposition ordering supervision, supervision cannot be ordered simply because a parent is being ACCUSED of child neglect or abuse;

2) Social Services may not seek access to the parents' home as part of TOP when children are removed to foster care, there is nothing for Social Services to do at the parents' home at that point;

3) Social Services may not seek to mandate parents to speak to Social Services as part of the litigation.  That does not serve the statutory purposes to impose a TOP one bit  Social Services may pursue, as they are entitled as part of discovery in civil child neglect/ abuse proceedings, to call parents to a deposition under oath, by following established subpoena procedure, and the same is true for parents who can call social workers at a cross-deposition.  Social Services and parents may exchange demands to produce evidence and to answer written questions under oath (interrogatories).

Yet, Social Services are not entitled to use their position as a governmental agency to force parents to unilaterally mandate parents talk to social services outside of formal discovery before trial, under the power of contempt of court and violation of the TOP (with the threat of jail time, as this is usually done by local social services).

Local social services where I practice have a template for the so-called ACD (adjournment in contemplation of dismissal) agreements that they use for TOP orders.

ACDs in social services is usually "with admission of fault", unlike ACDs in criminal proceedings which are usually without admission of guilt.

The difference is that in ACDs without admission, in case of violation of such an ACD the case is returned to the calendar where it started - before trial, and proceeds to trial.

In the child protective proceedings, where an ACD with admission is entered (and Social Services resist ACDs without admission), in case of a violation of the ACD (and Social Services can trip a parent very easily, and courts usually endorse anything social services would say), the case returns to the disposition stage, as if the trial already concluded and the finding of neglect/abuse entered.

Thus, ACDs with admission are very convenient tools for lazy and incompetent social services to skip conducting proper investigation and pleading and simply

• coerce parents into entry of, first, a TOP based on their ACD templates,
• then force a parent, through a TOP, under the threat of contempt of court and incarceration, to talk to social services and let them into the parent's home, whether the children are there or removed to foster care,
• then force the parent (who is usually represented by an assigned counsel dependent for further assignments on the court and thus prodding the client toward the ACD) into the ACD based on claims that the parent said something to the social services during those TOP-forced interviews that the parent did not say, and that social services saw something in the parent's home that was not true (but it would be the word of the perjurous social worker against the word of the parent if the case goes to trial, and the parent is made aware that social workers always win hands down);
• then trip the parent on the ACD for some bogus violation;
• then obtain a neglect adjudication without doing any investigation or proper pleading - and gain supervision over the parent, with "services" billed to the county for years.

TOPs are roads towards ACDs with admission, to child neglect/abuse adjudications on incompetent and legally insufficient pleadings and to years of supervision by social services over your life.

Therefore, it is of paramount importance to make sure that TOPs are imposed lawfully, and NEVER to allow Social Services to use TOPs as tools of coerced discovery.

Be vigilant as to the conditions that social services seek to include into the TOPs.

If a TOP is imposed without notice to you, urge your counsel to make a motion to vacate, urge the court to replace your assigned counsel if the counsel resists your request to make such a motion.

Such a motion may be the difference between you winning or losing child neglect proceedings, and between you being free or locked up in the local county jail for contempt of court if you do not want to talk to social services before the trial (a wise tactic).

And - since a TOP is not an adjudication of abuse or neglect, the court or social services may not put into the court conditions, as Delaware County Family court does and as Delaware County Department of Social Services regularly requests, "to remedy allegations as alleged in the petition".

First, there is no such thing as to "remedy allegations", second, allegations remain allegations until they are proven at trial, and a parent may not be forced to remedy what is alleged and not proven against him or her, under the threat of incarceration.

Be vigilant as to your parental rights and your civil rights.  They evaporate much too fast in New York Family court if you do not watch out.

Medical experimentation on children in foster care should stop - and a good start is to cut off federal funding for such experimentation

My upcoming book on child protective proceedings will feature constitutional problems arising when CPS remove children from their homes and their parents or biological families, with little, if any procedural protections, and the dangers that arise for the children's safety when CPS is given power over medical decisions regarding the children and practically of their lives.

Remember, parents and legal guardians are allowed to make decisions for their children to take or not to take medications with potentially deadly side effects, undergo or not undergo risky surgeries.

Also, parents and legal guardians have a right to decide whether and when to take the child off life support if the child is on it.

With the thriving organ donor industry, there are enough ethical problems in having parents sign consents to harvest organs from allegedly brain-dead children with beating hearts.

With the thriving pharmaceutical industry, there are enough ethical problems when parents enroll their children in clinical trials of potentially dangerous drugs.

Such ethical problems increase many-fold when CPS is the legal guardian of the children and makes the decisions as to enrollment of the children into medical experimentation, which is prohibited in the U.S. without consent of the human subjects.

For years in this country there have been reports of CPS using its position as a legal custodian of children in foster care to enroll them in risky drug experimentation, which the parents would have forbidden.

When a child is prescribed drugs with dangerous side effects, the parent, as the child's legal guardian, has the right to say "no", at least if the child's life is not depending on taking the drug and if there is proven scientific evidence that the drug will save the child's life or has a high potential to do that.

Subjecting children to prescription drugs which were never proven in their efficiency or safety for use in children is experimentation on children, and that is exactly what CPS and family courts are doing throughout this country, with the help of law enforcement.

What is the monetary gain if the child is prescribed such medications?

The gain is for:

1. the pharmaceutical companies producing the drugs, and that is why manufacturers of drugs fight tooth and claw to cater for prescribing physicians;
2. the prescribing physician - for obvious reasons that he or she gets to monitor the child;
3. for the CPS who will get extra money from the state and federal government for taking care of a child with a "diagnosed" disability, and will get extra money if CPS succeeds in pushing for adoption of the "disabled" child out of foster care - there are significant financial incentives for CPS to do that, as I have already written on this blog.

In 2015 there were several such stories reported.

In one of the episodes, about the Nikolayev family, the SWAT team descended to grab the baby from the family simply because the family was not satisfied with the quality of care the baby received in the local hospital, did not want to have their child undergo a heart surgery in the hospital where they were not sure about the standard of care, and wanted a second opinion.  So, CPS and police was used, on the tip from a hospital, to fight the potential plaintiffs in a medical malpractice action.

Since the parents were Russian nationals, the case caused an international uproar, involving Russian diplomats.

It has been reported as far back as 2005 by NBCNews that the government tested AIDS drugs on children in foster care, raising red flags as to legality of such testing and ethical issues involved in removal of children who are then subjected to medical experimentation without their parents' permission.

A higher death rate among foster children who were subjected to anti-HIV drug testing as compared to the similar control population of HIV-infected children was reported in that study.  

Some children's advocates compared drug-testing on foster care kids to Nazi experimentation in concentration camps.  Whether it is claimed to be "in the best interests of the child or not", where monetary incentives exist for the legal custodians of the children and all participants in such drug-testing, the comparison is not too far-fetched.

A federal legislation dubbed "Justina's Law" has been introduced, to prevent hospitals and CPS from conspiring to use children in foster care for medical research, even in cases where such participation presents great risks to children with no proven prospect of benefit to them.  The bill number is H.R. 4989. 

The bill, which is not enacted still, is aimed to 

"To prohibit Federal funding of any treatment or research in which a ward of the State is subjected to greater than minimal risk to the individual's health with no or minimal prospect of direct benefit."

So far, the CPS and medical industry's lobby apparently outweighed children's rights and the bill was not enacted, thus, federal funding (using taxpayers' money, your money, ladies and gentlemen) of medical experimentation on children, made by CPS in conspiracy with medical professionals, is not prohibited.

Call your representatives in the U.S. Legislature to have this overdue bill enacted.

Be also aware that your representatives, in 2014, derailed yet another bill that would have protected children from medical experimentation.

Call your representatives and give them your opinion on their actions as to not enacting that bill, push for enactment of legislative protection of children's right to be free from medical experimentation, and especially when they are in the custody of child protective services.

A 6-month old removed at birth on the basis of derivative neglect accusations dies in the custody of Social Services in Texas

In my upcoming book about child protective proceedings I will dedicate some space to discussion of the so-called "derivative child neglect".

That is when parents are charged with child neglect of children who were not actually neglected or abused, but are "presumed neglected" because of a finding (or even an accusation) of neglect pertaining to other children in the care of the same parents.

Derivative neglect is often used to pluck newborns from their mothers right out of the maternity hospital.

Recently, a 3-day old baby girl was plucked from her mother (in Texas) and put in non-kin foster care where her two older brothers already were, while placement with family members was rejected by CPS.

When the girl turned 6 months old, she ended up in the ICU with head trauma, brain damage and then her life support was disconnected (apparently by the CPS, the girl's legal custodian at the time), and the girl died.

Guess who is investigating the girl's death in the custody of CPS?  CPS itself, of course.

No matter what the result of the investigation, nothing can bring back the little girl back to her mother and her brothers.

CPS took the child to protect her.  And put her in the harm's way.  And I doubt that, with CPS investigating itself, anything good will come out of that investigation.

The concept of derivative neglect, in my opinion as a legal expert and civil rights expert, is a gross violation of parental constitutional rights and should be legislatively abolished and prohibited.

There is no need to even say that the mother is not wealthy and is Hispanic.  Discrimination against the poor and minority parents under the guise of child protection continues - and is a deadly menace to the safety of those same children CPS claims it seeks to protect.

Prescriptions of drugs to pregnant women harm the unborn children - should we expect the backlash against women's medical care or will a reasonable solution be found?

There was an article posted on Forbes.com yesterday about overprescription of narcotic pain-killers to mothers that harm the babies who are born with narcotic drugs in their system.

The article states that when children are born with narcotic withdrawal, it happens not only when mothers abuse drugs during pregnancy, but when such drugs are prescribed to the mothers by physicians, such as obstetricians, pain clinics etc.

I also wrote on this blog just 3 days ago about statutes throughout the country which, obviously with good intentions, but still illegally and unconstitutionally attempt to protect fetuses from their mothers, to the point of incarcerating the mothers to undergo court-ordered substance abuse rehabs.

Apparently, now mothers will not only be incarcerated and sent to forced rehabs in order to protect fetuses, but will be denied pain medications that their doctors recommend them because the needs of fetuses overrule the medical decisions of women's own physicians for the benefit of women's own health and pain management.

Yet, when the child is born, the reverse happens - a doctor wants to prescribe a drug that may be harmful to the child, a parent reads about the drugs' counter-indications and side effects and says "no" - and the parent lands in a child protective proceeding (with a potential to lose his or her job, custody or parental rights) where a judge who is no specialist in medications, without advice of an expert, orders the parent to give consent for medicating the child with the objectionable drug.

The alternative is to lose custody of the child to CPS and, ultimately, to lose parental rights and the child to a forced adoption by strangers.

Therefore, a doctor who may be courted by manufacturers of such drugs that were never approved by the Food and Drug Administration for their safe and efficient use for children, still has power over the parents, preventing them from seeking a second opinion, preventing them from refusing to give their "informed consent" to medicating the child and forcing them - or Medicaid, if parents are indigent - to pay exorbitant amounts of money to make the child an addict for life and to harm the child's health by side effects.

If CPS gets their grubby hands on the children and get custody of them in CPS proceedings, they will medicate them at their heart's desire because they will get more money from the federal government for a child with medical or mental "disabilities" (and prescriptions and a diagnosis underlying the prescription will be proof for such funding), than for a healthy child.

And, when the child's health is ultimately destroyed by prescription medications that were never meant or tested for safety or efficiency for pediatric use, CPS will get more money from the federal government to adopt the child out.

So, trying to protect fetuses from exposure to drugs is a pretense by CPS to get children already born "in good faith" and subject them to the same narcotics, in return for federal funding.

Kids for cash.  An unbeatable deal - and a nation with ruined health in the future.

The problem of babies born with withdrawal does exist, as described in the article on Forbes.com that I referenced.

Yet, solutions for the problems should not be forced deprivation of women of needed medical care.

A lawsuit in federal court in Wisconsin challenges government's authority to take a pregnant mother in custody to protect her unborn fetus

New York Family Court Act allows child protective services only towards children in being, who have been already born alive.

Yet, in practice and in reality, that jurisdictional restriction is often violated when CPS pursues mothers for alcohol or substance abuse during pregnancy.

Many states in this country pursue pregnant mothers, in civil and criminal proceedings, seeking their incarceration and involuntary treatment, based on the rights of unborn fetuses which, in the eyes of the government, trumps mother's right to privacy, medical choices, control of her own body and even liberty.

In Wisconsin, a federal civil lawsuit has been filed by Tamara Loertscher who was incarcerated, put in solitary confinement and ordered into involuntary treatment because of disclosure at a prenatal visit that she did, but no longer does, abuse certain substances.   

I reviewed pleadings in that lawsuit available on PACER.gov (many of them are sealed or heavily redacted in view of privacy issues involved).

The government is making, predictably, an argument in favor of the so-called "Younger" abstention which essentially is a loophole for the federal court to "abstain" (refuse) to hear the case of violations of federal constitutional rights because there is a pending state court proceedings meeting a certain criteria where the state is competent to review and resolve the same issues.

Yet, attorneys who represent Ms. Loertscher correctly raised the issue that to qualify for the abstention, state court proceeding must be akin to criminal proceeding, and Wisconsin has not criminalize (yet) "fetal neglect" or "fetal abuse", or abortions, for that matter.

You can also review a list of publications painstakingly put together by the National Advocates for Pregnant Women, including the organization's own comprehensive study published in 2013 as to efforts by state governments to target pregnant women with "fetal protection" measures showing how vicious is the fight by the government across the U.S. targeting pregnant women with "fetal neglect" and "fetal abuse" allegations.

It is very clear that, while Roe v. Wade remains the law, fetal abuse and neglect claims are patently unconstitutional.

It is also very clear that the governments across the United States are using taxpayer money for decades to persecute and incarcerate pregnant women, mostly minority women, often without providing them with legal representation, but providing their unborn fetuses with such representation.

Such efforts can only lead to pregnant women not seeking proper prenatal care for themselves or for the fetuses, for fear of being reported, harassed and incarcerated if they mention prior or current alcohol or substance abuse, and that is contrary to the intended purpose of such "fetal protection" statutes.

I do not encourage drug or alcohol use or abuse during pregnancy.

All I am saying is - at least in New York, the Family Court Act putting a restriction on the jurisdiction of child protective proceedings in court, clearly starts applying only to a "child", meaning "a child born alive", and only to conduct of parents committed after that child was born alive, not during pregnancy.

I also know that often respondents in child neglect proceedings are poor, cannot afford a private attorney and are given assigned counsel who are afraid of their own shadow for fear of not getting a lucrative assignment from the court again.  Insist on your rights if you are targeted for allegations of abuse or neglect of a fetus.  Call ACLU, contact civil rights attorneys who takes cases pro bono.

As Ms. Loertscher's attorneys correctly and properly pled in her pending federal lawsuit, within existing legal tradition, the Younger abstention should not apply to state civil proceedings targeting a woman for fetal neglect or abuse when the U.S. Supreme Court requirement for such an abstention is that the civil proceedings are "akin to criminal proceedings" and if the state law does not criminalize fetal neglect or abuse - nor can it constitutionally do it while Roe v. Wade remains the law.

A more radical approach that federal courts continue to reject is that the Younger abstention is unconstitutional under any circumstances, as the U.S. Congress, in enacting the Civil Rights Act, known as 42 U.S.C. 1983, gave the choice of whether to proceed in state or federal court to redress federal constitutional violations to the victims of such violations and not to federal courts, and any doctrines created by federal courts to not review civil rights cases brought before them constitute a breach of the particular judges' oath of office to support and protect the U.S. Constitution and are in excess of powers given to federal courts by Article III of the U.S. Constitution.  

In other words, federal courts (in my expert opinion) may not amend the Civil Rights Act by "abstentions" to their own jurisdiction, when such jurisdiction is established by U.S. Congress and the choice of forum is given to private individuals alleging violations of their constitutional rights by state governments and by individual state public officials.

It is a long shot before this approach makes any headway in federal courts who entrenched themselves and chilled this particular argument with sanctions against attorneys and litigants who raise it, despite a prohibition on viewpoint and subject matter discrimination under the 1st Amendment.

Yet, at least under the limited approach that Ms. Loertscher's attorneys have chosen, Younger abstention in fetal neglect and abuse cases brought in New York courts may survive a motion to dismiss, and that is all that is needed for at least one lawsuit like this to breach the surface and make the law in this state.

Federal lawsuits against New York courts to stop them prosecuting fetal neglect and abuse (by maintaining child neglect and abuse proceedings for alcohol and drug use during pregnancy) are viable and women so prosecuted should fight back and file these lawsuits.

Nobody will protect your rights if you do not want to protect them yourself.

Parents of Delaware County, New York, charged with child neglect, beware

I know from a confidential source of parents steered into allowing adoption of their children by foster care parents on a promise that it will be an "open adoption" and that the parent's right to see the child will not be cut off, while the promise is not honored afterwards.

Please, also be aware of financial incentives to adopt children out of foster care:

money subsidies to adoptive parents and federal payouts to the agency that brought about the adoption from foster care.

Also, please, be aware that while Delaware County keeps the list of foster parents secret and resists FOIL requests on the subject on pretense of privacy, it appears that Delaware County favors local government officials for both foster care business and for adoptions, both of which presuppose payments to such people, whether they are qualified to be foster or adoptive parents or not.

Don't let your children be sold.

Parents of children on disability charged with child neglect, contact Medicare/Medicaid

I strongly suggest to parents whose children who are on SSI/SSD were taken away from them in child neglect proceedings in Delaware County, New York and put in foster care to check with Medicaid/Medicare what kind of accounting reports Delaware County is filing with that federal office.

Some children may be getting substantial benefits from Medicaid/Medicare, yet Delaware County Department of Social Services routinely takes parents to court for child support.  While that is any parent's obligation to provide for his or her child, the question is how the government money given to the Social Services by Medicare/Medicaid are used.

Are they properly used for the child's care?

Are they put aside for the child for the child's future use - college, for example?

Or are those funds pilfered by the Social Services or foster parents for needs that have nothing to do with the child's needs, including feeding non-profits where local county officials are on the Boards of.

Contact Medicaid/Mediare and ask questions about the use of your child's funds by Delaware County Department of Social Services.