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.

When parties and former clients are chosen as the court's legal advisors, the rule of law goes out the door

It was reported to me by a witness that Delaware County (NY)Family Court clerk stated to the witness that it is the Delaware County attorney who controls access to Family court files.

An interesting policy,  considering that:

1) The Delaware County Attorney represents the Delaware County as a petitioner in that same court in  child abuse/neglect proceedings;

2) The judge of that court represented Delaware County DSS for 27 years before coming to the bench.

Talking about conflicts of interest.

Might it be the increase in CPS cases that caused the Delaware County Board of supervisors to ask for a 2nd judge?

There was an interesting article today in our local newspaper, The Daily Star (out of Oneonta, NY), indicating that the Delaware County Board of Supervisors has passed a resolution to ask the New York State Court Administration system for a 2nd Family Court judge, claiming that the number of Family Court cases has sharply risen from 1,400 in 1980 to 3,300 per year "now".


A second Family Court judge will require his own chamber, his own law clerk and secretary - all to the tune of close to $250,000.00 addition to the budget of the New York State Court Administration.


Yet, why would there be such a sharp increase in family court cases in Delaware County, New York?


Is the population growing?


No, it has grown by 1,231 people from 1980 (46,824 according to the U.S. Census) to the year 2000 (48,055), then over the next 10 years decreased by 75 people to 47,980, and the estimate is that it decreased even more, by 704 more people, to 47,276 in 2012.  We are in the year 2014, and if the loss of population continued, there may be no increase of population since the year 1980 at all, and there may be, in fact a population loss since that time.


Family court, in my experience as an attorney, usually involves issues with children.


There are definitely less children in Delaware County in the past 15 years that I have been residing here.   I can judge by the class sizes at school, I can judge by the graduating class of the local Delaware Academy, one of the biggest schools in the county, I can judge by the fact that one elementary school had to be closed.


Delaware County, New York reports the lowest student to teacher ratio in the State of New York, with the highest graduation rates.


Under such circumstances, where there is less children in the county, there is no apparent reason why the number of Family Court cases so sharply increased. 


In fact, with the loss of population, closing of schools and now raising graduation rates, apparently, children in Delaware County are well taken care of, and there should be less Family Court cases.  Right?  Obviously, wrong.


If there is not more children and not more parents in Delaware County, then what is the reason for the increased Family Court cases?  The newspaper does not indicate further statistics, what kind of Family Court cases are on the increase - child custody/visitation, family offense, child support, spousal alimony, paternity, or child neglect and abuse proceedings.


Judging that the meeting of the Board of Supervisors in question was held under the banner of fighting child abuse, and judging that recently the Board of Supervisor approved additional budget to the Social Services, it must be the child protective cases.


My question as a taxpayer is - are those increases in child protective cases warranted?


Or was the Delaware County Department of Social Services invigorated in its efforts to grab people's children and thus increase the number of child protective Family Court cases by federal monetary incentives for adoptions out of foster care? 


Or was that department motivated and by the fact that the judge presiding over the cases of Delaware County Department of Social Services represented the Delaware County Department of Social Services for 27 years before coming to the bench and came to the bench, according to his own acknowledgment in a radio interview during his re-election campaign in 2012, because he did not like the "outcomes" in the Family Court cases?   By the way, listen to the WOIX interview while the site is still there.


As a taxpayer, I want to ask a question, does the Delaware County Board of Supervisors' alleged concern for the overcrowding of the Family Court in reality mean that the Board wants to somehow hide the fact that the current, recently re-elected Family Court judge, Judge Carl F. Becker, will not be able to serve out his term of 10 years because he will turn 70, a mandatory retirement age in New York for judges, at least 4 years before expiration of his term in office?


Judge Becker knew that he will not be able to serve out his term, and still ran for the office, knowing that the county will have to pay for the new elections of a judge mid-term.


Now the county wants a 2nd judge to smooth over Judge Becker's retirement?


Yet, the question still remains - what is the share of child protective cases in the alleged increase of Family Court cases in Delaware County, the least populated county in the United States after the Adirondacks (33 people per square mile or 13 people per square kilometer)?


What is the reason where the least populated county in the country after the Adirondacks mountain needs more judges?


As a comparison, population in Albany County, New York, by the 2013 estimate, is 306, 945 people, and there are only 3 judges in Albany County Family Court, 1 judge per more than 100,000 people. 


The questions remain - are Family Court cases that are on the increase in Delaware County child protective cases?


What causes the increase of Family Court cases with such a scarcity of population, decrease of the number of children in the county to the point of closing schools and increase in graduation rates?


If children are taken from homes to have more federal money flowing to social services, or to satisfy the agenda of the social services, such a scenario does not answer either the taxpayers, or the parents, or the children's best interests.


And the questions remain.

Child neglect proceedings against parents instead of PINS or juvenile delinquency proceedings against the child: a way for social services and law enforcement to obviate your child's right to remain silent

Juvenile delinquency and PINS (persons in need of supervision) proceedings in New York provide to the child constitutional protections, such as a right to remain silent throughout the proceedings.


Child neglect proceedings are not brought against the child, but against parents for lack of supervision of the child, and thus, do not provide to the child a right to remain silent.  Instead, in child protective proceedings the child does not usually testify and instead social services workers usually testify claiming, under the statutory "child hearsay exception", that the child allegedly made "statements" to social services, whether it happened or not, because it is unverifiable and such interviews between social services and the child are not usually audiotaped or videotaped in New York.


I have noted that social services in the state of New York started to bring child protective proceedings against the parents when they insist on their child's right to remain silent in interrogations by social services and police which can likely result in PINS and juvenile delinquency proceedings.


By bringing child neglect proceedings against the parents instead of juvenile or PINS proceedings against the child, CPS gets to remove the child based on hearsay evidence (rumors), place the child in CPS' own custody and interrogate the child at their heart's desire based on their own consent as the legal custodian of the child, thus obviating the child's right to remain silent under PINS and juvenile delinquency.


Even if the child is not removed and remains in parents' custody, CPS creates a conflict of interest for the parents to protect their child's interests on the child's behalf, because in child neglect/abuse proceedings parents' interests are adverse to the child's.


Yet, since in child protective proceedings against parents the child's right to remain silent is not a concern, assigned attorneys for the child who often depend on such assignments on a continuous basis and, thus, may consider it a better strategy, for personal reasons, to allow CPS unlimited access to the child for any reason or purpose.  CPS, in its turn, may allow access to the child by police and other law enforcement authorities, and may commence PINS or juvenile proceedings against the child afterwards, claiming that they have gained access to the child and interviewed the child on consent of the child's counsel.


In New York, parents have no standing to address malpractice or conflict of interest and disqualification of the attorney for the child.  The child him/herself is incompetent to do that.  New York did not designate a body or person who would be able to do that on behalf of the child. 


Thus, the child is without proper defense and without recourse when social services choose to file a child protective petition while meaning all along to target the child in the nature of a PINS or juvenile delinquency proceeding. 


I believe that such a practice of social services to file a child protective proceeding against the parent where what social services and the law enforcement are seeking is self-incriminating statements from the child, which would have been protected in PINS and juvenile delinquency proceeding by a statutory and constitutional right of the child to remain silent, is unconstitutional.


By this post I alert the public as to such a practice and potential for abuse of power for the CPS against children.


Since child neglect proceedings are secret, records of such proceedings are not open to the public and majority of child neglect adjudications (court orders) are not appealed, and thus are not reflected in case law on public archives of appellate courts, I am not sure how wide-spread this policy is, yet, I know about a case where such a tactic was used.


I believe that the public should be aware of this particular tactic used by CPS to obviate the child's right to remain silent in investigations in the nature of pre-PINS and juvenile delinquency proceedings.

Are child neglect/abuse proceedings civil, criminal, quas-criminal or administrative?

New York State Family Court Act and multiple court rulings say that child abuse and neglect proceedings are civil in nature.

Yet, comparison of various features of child neglect and abuse proceedings shows that while procedural protections for respondents in New York State child abuse and neglect procedures are lower than in regular civil proceedings and are similar to those in administrative proceedings, other features of child neglect proceedings makes it similar to a criminal action.


I have put together a table comparing criminal, quasi-criminal (undefined in New York), child neglect/abuse, regular civil proceedings and administrative proceedings.   I plan to publish a book on child neglect and abuse proceedings in New York which will cover such proceedings in minute details, certainly with a bibliography.  The table presented here is simply a preview, it does not contain references to statutes and cases.


The U.S. Supreme Court has long overruled the State of New York preponderance of the evidence standard in Santosky v. Kramer for termination of parental rights.  My firm belief is that all proceedings leading to such termination, child neglect proceedings included, must be held at least to the same standard of proof, by clear and convincing evidence.  I also believe that review of evidence in child neglect proceedings must be subject to strict scrutiny if children's biological parents are involved since it is infringing upon a fundamental constitutional right of parents to care and control their children.


Children are removed in New York, and Family Court confirms such removals, based on hearsay evidence alone, which means that your child may be removed based on anonymous malicious gossip.  After the child is removed this way, the court will be cautious to return the child, even after a fact-fnding hearing held to allegedly a higher standard, but where hearsay is still admissible wholesale through the so-called "certified case notes" of the social services.


Such removals based on malicious rumors obviously do not comport with the Santosky v. Kramer clear and convincing evidence standard, yet they form the foundation for the future possible termination of parental rights.


Removal of adoptable children to foster care by social services based on hearsay evidence becomes even more suspicious when federal financial incentives to the states for adoption out of foster care are considered, see my previous post in this blog. 


If parents committed a crime against their children, then criminal proceedings, with their constitutional protections for parents, should be filed and prosecuted by the appropriate bodies.


It is my belief, based on my research and practice of law in child neglect cases that what exists at this time in New York in the form of child neglect/abuse proceedings is a monstrous civil/criminal hybrid which ruins people's lives, breaks families, destroys reputations and ruins chances of employment based on malicious rumors from disgruntled neighbors, competitors, ex-partners etc., certified as case notes of social services.


Moreover, by law New York State Family Court is not authorized to review issues of constitutionality of the statute through which the Family Court receives jurisdiction, only the Supreme Court of the State of New York has such power.


Thus, constitutional issues in Family Court child neglect proceedings get overlooked, not resolved, and then the appellate court rejects constitutional claims raised for the first time on appeal, because such claims were not raised in the court below, a court which has no authority to resolve such claims.


If a parent wants to raise constitutional issues in parallel federal civil rights litigation, a number of abstentions will immediately be raised, and many parents would be afraid to sue the Family Court and bring the court and the presiding judge into the federal lawsuit as a necessary party defendant, for fear of retaliation.


New York state child neglect/abuse proceedings are more like administrative proceedings in their wholesale admission of hearsay from any sources, including anonymous sources, while such proceedings resemble criminal proceedings in allowing the court to issue bench warrants for production of respondents if petitioner is unable to personally serve respondents or if respondents did not appear. 


Parents are brought to court in child neglect proceedings under the threat of a bench warrant, must testify in rebuttal in their defense, possibly incriminating themselves, while provided no immunity from future criminal prosecution by the court.


Moreover, in child abuse proceedings  in New York, the local district attorney is a necessary party in such proceedings, sitting there for purposes of picking up that incriminating testimony and using it in commencing and prosecuting criminal proceedings against such parents.


Thus, in child neglect and especially child abuse proceedings, the 5th Amendment right against self-incrimination goes out the door and the parent is faced with a truly "Hobson's choice", to testify and waive his or her constitutional rights in any criminal proceedings that may be brought against her based on her testimony, not only for endangering welfare of a minor, but, let's say, for perjury, fraud or any number of other crimes that the district attorney may choose to charge her for, or not to testify, allow the proceeding based on malicious rumors to go forward and lose her child.


Such a criminal/administrative hybrid, in my belief as an attorney, is monstrous and unconstitutional and calls to abolish the Family Court Act pertaining to child neglect proceedings and to rebuild and re-enact it, with respect to constitutional rights such proceedings infringe upon and with respect to procedural protections that such proceedings must provide to the parents and other respondents.

Feature	Criminal court proceeding	Quasi-criminal proceeding	Child abuse and neglect proceedings	Civil court proceeding	Administrative Proceeding
(1)     If the Defendant/Respondent cannot be found for personal service	A bench warrant is issued	Procedure is not set in New York	A bench warrant is issued	Plaintiff/Petitioner may be allowed to serve by substituted service and then enter a default	Same as in civil proceedings
(2)     What if the Defendant/Respondent was served and did not appear on the appearance date	A bench warrant is issued	Procedure is not set	A bench warrant is issued	A default is entered	A default is entered
(3)     Nature of procedure provided by statute or court ruling	Criminal proceeding	Procedure to define quasi-criminal proceedings is not set in New York	Civil proceeding	Civil proceeding	Civil proceeding
(4)     Standard of proof	Beyond the reasonable doubt	Procedure is not set	Preponderance of the evidence/ (there can be parallel criminal proceedings on the same evidence for endangering welfare of a minor, a misdemeanor in New York)	Preponderance of the evidence, or clear and convincing evidence in certain types of cases alleging criminal activity	Substantial evidence
(5)     Right to remain silent	Yes	Yes	Yes	Yes	Yes
(6)     Permission to the court to draw negative inferences if Defendant’Respodent remains silent	No	Procedure is not set	Yes	Yes	Yes
(7)     Availability of jury trial	Yes	Procedure is not set	No	Yes, with the exception of special proceedings	No
(8)     Admissibility of any hearsay at pretrial hearings	No	Procedure is not set	Yes	No	Yes
(9)     Admissibility of hearsay at the trial	No	Procedure is not set	Yes Any hearsay is admissible through certified notes of social services, child hearsay is admissible with easy corroboration by hearsay, Delaware County Family Court introduced “mandatory reporter hearsay exception”, affirmed on appeal	No, but common law and statutory exceptions apply	Yes
(10) Admissibility of statutory hearsay exceptions	Prohibited by the Confrontation Clause	Procedure is not set	As per Family Court Act: Child hearsay exception (requires corroboration, but corroboration is easily achieved); Social services records hearsay exception (as long as records are certified as social services business records, anything in them comes in for the truth, without regard to duty of declarants to report to the Social Services as part of the business);	CPLR 4518, business records exception	All hearsay is admissible
(11) Mandatory reporter of child abuse and neglect hearsay exception	No	Procedure is not set	Not in the statute, but is applied by Delaware County Family Court and was affirmed on appeal by the 3rd Department	No	Any hearsay is admissible
(12) For hearsay business records exception, requirement that declarant must have a duty to report truthfully in order to run the business properly	N/A Hearsay is not admissible in any format under the Confrontation Clause	Procedure is not set	No Social Services collects hearsay for its certified case notes from the general public that has no duty to report truthfully to Social Services; Mandatory reporters must report on a suspicion, without any investigation or knowledge of the  truth or falsity of allegations, under the threat of criminal prosecution for non-reporting and under protection of  immunity when report is made under a mere suspicion without investigation	Yes All hearsay exceptions exist under the notion that the hearsay declaration is truthful under the circumstances	No
(13) Applicability of the prohibition on hearsay prepared for purposes of litigation	Yes	Procedure is not set	No	Yes	No
(14) Hearsay by unknown declarants	No, confidential informants have to testify at criminal trial in open court, Confrontation Clause	Procedure is not set	Yes, indicated reports from New York State Office of Children and Family Services based on reports of anonymous reporters	No	Yes, all hearsay is admissible
(15) Is the damage to the public presumed?	Yes	Procedure is not set	Yes, in derivative neglect proceedings, for the original proceedings, the harm or imminent risk of harm must be proven, but is often presumed from the nature of activity	No, damages are an element of the tort/civil proceeding action, if damages are not proven, the case must be dismissed   Exceptions: harm is presumed in certain types of defamation actions once liability is established, but damages must still be established	Yes, administrative enforcement proceedings are mostly strict liability proceedings