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Posted by eric_k_johnson on September 3, 2011
Too many[1] employees of the Division of Child and Family Services (DCFS) and the attorney general’s office (A.G.’s) are engaging in essentially a shoot first and ask questions later mentality:
1) On what is at best sketchy evidence, they file a lawsuit accusing parents of wrongdoing;
2) Then they ask for interim temporary orders of a punitive and/or prejudicial nature (such as protective supervision of parents and children during the pendency of the underlying case or placement of children in foster care);
3) If the judge happens to grant the temporary orders (and he rarely does not) on the basis of this sketchy evidence, then
4) The A.G.’s and DCFS come back to the poor hapless defendants with an ultimatum: “Well, the judge agrees with us and that lends an air of legitimacy to our allegations, so the handwriting is on the wall, folks. Plead guilty or we’ll see you in court.” Otherwise stated, the fix is in.[2]
This practice is another form of lie laundering[3]; the poor judge works under the assumption that the A.G.’s/DCFS have a solemn obligation to investigate and believe a cause of action exists. The judge (who is at least one step more removed from the evidence and investigation than are the A.G.’s/DCFS) usually cannot, on the face of the pleadings and argument, invalidate the pleadings/argument.
So the judge[4] simply must do what he surmises is warranted under the circumstances based upon the erroneous presumption that what the A.G.’s/DCFS presented was presented in the utmost good faith. Unfortunately, because it’s juvenile court too often the judge is acting—improperly—out of an abundance of caution, a “better safe than sorry” mentality, and frankly, frequently out of sexism.[5] Knowing this, the A.G.’s/DCFS launder lies and half-truths knowing that the judge will almost surely trust the A.G.’s/DCFS because the judge is thinking, “If that’s what the A.G.’s/DCFS are telling me as officers of the court, then I’m going to give them the benefit of the doubt and believe them at this phase for the sake of potentially protecting a child and ensuring that the situation does not worsen” when in fact the situation was never bad to begin with. Thus the A.G.’s/DCFS transform an illegitimate case into a legitimate one by using the court as a dupe in a capacity for which it was never intended.
While some well-intentioned child welfare protection programs (like DCFS and juvenile courts) have their place, they are collapsing under their own weight and being internally poisoned by the imperative of self-preservation overtaking their mission to protect the public interest by protecting demonstrably endangered children. Careerism and the attendant bloat in the A.G.’s/DCFS feeds a vicious circle. The A.G.’s/DCFS brazenly use the court to short-circuit the crucial process of having to conduct a thorough investigation and build a legitimate case. Instead, they file specious pleadings, get a temporary order and from that, use that as leverage against both the defendants and the court to box them in:
“Now it’s basically all downhill from here. It’s our case to lose because as you can see, the judge already ruled in our favor once, so now the burden of proof has shifted (if not technically shifted, then for all practical intents and purposes) to you, poor parent(s). Now you have to prove a negative which is—especially in juvenile court situations—nigh on to impossible because so much of it is just one’s word against another.[6] That is manifestly neither justice nor child protection. Only when the A.G.’s/DCFS investigate, report, plead, and prosecute in good faith can there be real justice and real protection of children and of the public interest. Who truly benefits from being falsely accused and convicted?
The A.G.’s/DCFS will attempt to divert attention from its critics by telling you, “If you care about children and want to protect them, then you cannot question our motives or methods.” Hogwash.
To be sure and to be clear, child abuse is a serious problem.[7] But supposed nobility of cause does not exempt one from accountability or entitle one to indulge. Yet that’s exactly what the A.G.’s/DCFS do to justify their careless, unaccountable, and carte blanche practices: because of what we profess to represent, irrespective of how true we are to that cause, if you question us that shows you to be a callous and indifferent person who either does not care about or is hostile to the welfare of children. How fatuous. A program that costs millions and betrays the very people it professes to serve has every reason to be questioned and criticized roundly. Questioning and fault-finding plainly do not mean we couldn’t care less about children; it means we expect the lofty pronouncements of the A.G.’s/DCFS to hold up under scrutiny.
So what can we do?
First, lawyer up. Seriously. Really, there is no other viable alternative.
No, really, you need to lawyer up, no matter how smart you think you are and no matter how naively you may believe that your innocence will be apparent.
And no, this is not a pitch for you to hire me. I don’t care who you retain as long as you get good legal representation and advice and fast. It’s key. And don’t just hire any old lawyer. Get a good one and one with experience in juvenile court matters. A mediocre attorney can make the situation worse than having no attorney at all. I would be happy to recommend some excellent attorneys to you, in addition to myself (and no, I do not work with them nor do I receive finders’ fees from them).
DO NOT believe for one split second that the police officer or DCFS caseworker who calls you “just to get a little information” and/or tells you you’re “not a suspect” isn’t trying to build a case against you. If you get such a call, kindly tell the caller, “I’d be happy to meet with you. I’ll call my lawyer right now to see when she’s available for this purpose. When do you have time in your schedule for such a meeting?” After saying this, don’t be surprised when the tone of the call suddenly takes a turn for the chilly or hostile. You will then be told that you, who seconds ago was not a suspect, are “only making things harder on yourself” and that “things will go easier on you if you talk.” You may even be told that “you can talk to me now or I can arrest you.” Stand your ground. You have a constitutional right against self-incrimination and the right to representation and counsel by an attorney.
If you are innocent[8], fight![9] Expose and defeat the injustice! Attorneys. Clients. Parents. Don’t let these bullies wipe the floor with you and with impunity! I cannot tell you how many times I have seen an agency back down because my clients stood for what is right (and yes, they paid a heavy price, and we weren’t always successful, so remember that there are risks involved).
Unscrupulous A.G.’s/DCFS employees will employ the aforementioned strategy against you. Another very common, yet very effective tactic is to charge a parent with sensational and voluminous wrongs and then offer to reduce or dismiss the charges if that parent will admit to some level of guilt. By the same token, of course, they will also warn the parent that if the offered deal is rejected, there will be no mercy. Don’t fall prey to this pernicious form of legalized blackmail. These are often strategies employed when the case is known to be weak, but the A.G.’s/DCFS can’t bear to lose face by admitting error.
If you show them that you will fight to the bitter end, you will be surprised (so will they) at how often they blink first (if their case is truly weak, but if you are innocent the “evidence” against you typically is weak). It does take time (often years), consume ruinous amounts of money, leads to many a sleepless night, the loss of fair weather friends, and many a gray hair, but the benefits of standing firm outweigh the natural consequences of surrender.
Get online. Find and meet with and talk to other innocent parents going through what you’re suffering. Support each other, both emotionally and financially. Share what you know; you’ll often find common threads that run between your case and the cases others endured. Forewarned is forearmed.
Finally, get involved politically. This is a problem that everyone of every political stripe can support. Lobby. Write your legislator (a lot). The best (and possibly only) way to fix this problem is to expose it and then extract a solution.
So whether you are the falsely accused parent, or the attorney trying to decide what is best for his or her client, know that there is hope for the (innocent) brave and bold. Stand up for yourself and for other innocent parents. “All that is necessary for the triumph of evil is that good men do nothing.”[10] Don’t be the one to wonder, “Where was help when I needed it?” only to be asked, “When others needed help, where were you?” Remember, if the last victim had decided not to capitulate, maybe you wouldn’t be in the position you are in now.
[1] i.e., not all
[2] Don’t get me wrong. As Alan Dershowitz correctly noted about our criminal justice system, most accused people are guilty of something. If they weren’t, but were convicted anyway, we’d soon have a revolution on our hands. But the fact the most accused persons are guilty leads too many judges to assume that all accused persons are guilty, creating a dangerous bias from the moment the case is filed, and a bias the judge should know better than to indulge.
[3]See http://www.divorceutah.com/how-to-improve-family-law-in-utah-1a-judges-stop-tolerating-lies-what-is-lie-laundering/
[4] Who in some cases isn’t wholly innocent in these situations because he or she allows an “I know’em when I see’em” arrogance creep in to his/her thinking.
[5] I struggled with whether I should make this assertion, and ultimately honesty prevailed over cowardice masquerading as restraint or detachment. It’s as plain as the nose on any attorney’s face (just ask them, but in private); men accused of child abuse and neglect are far, far more often denied the benefit of the doubt than are women. Granted, men are, as a group, generally more violent than women, but women are, as a group, generally more inclined to allege abuse and neglect for fraudulent and malicious purposes than are men. I should note, however, that men are waking up to the benefits of lying about child abuse as well (discovering that well-crafted whoppers reported to DCFS and law enforcement provide hundreds of hours of investigations and intimidation against their estranged spouses through intrusive police officer and caseworker interrogation; provide reams of paper that give their lies an air of formality and truth; and thus grind the other parent down emotionally and financially to crippling levels—and all free of charge and without risk because people who lie about child abuse rarely, if ever, punished), and the A.G.’s/DCFS are gradually becoming more welcoming of both men and women liars out of a warped sense of “equality” and the realization that it generates job security.
[6] And worse, it’s often a matter of one’s word allegedly against that of a small child (sometimes a child of questionable memory and speaking proficiency) and you have that “err on the side of caution” bias working against you, an evidentiary standard that doesn’t exist. Indeed it cannot exist because if it did we would have Orwellian-style justice, i.e., grab that guy off the street and put him away before he so much as has the opportunity to do any damage.
[7]I personally believe it is not nearly as bad as the shrill and self-interested child welfare advocates pretend. And before anyone starts in on me by showing me horrific photographs and telling heart-rending tales of brutalized children and then claiming I have a black heart, understand me: I refer to those claims of “rampant and pervasive child abuse” that people level at parents who engage in barbaric acts such as, but not limited to, spanking, occasionally using harsh language to keep a misbehaving child in line, and teaching your son to fight back against the lunch money-stealing bully, etc.
[8]If you are guilty, take your medicine.
[9] The system will generally not seek to protect you. Indeed, it will generally seek the opposite.
[10] Edmund Burke
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