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.