Your client has been accused of Child Abuse: What Do You Do Initially to Assist Your Clients? Recommendations and Rants.

Transcription

1 Your client has been accused of Child Abuse: What Do You Do Initially to Assist Your Clients? Recommendations and Rants. I thank Elizabeth Tener, Esquire; Melissa Montle, Esquire; and Elaine Simon Esquire, for their efforts in the preparation of these materials. Charles D. Jamieson, Esquire The Law Firm of Charles D. Jamieson, P.A Forum Place - Ste. 500 West Palm Beach, FL Telephone: (561)

2 I. Why is Course Necessary? A. Cases with nexus in Juvenile, Family and Criminal Law Courts B. Unified Family Court is driving family law practitioners and juvenile law practitioners into each other s world C. Atom Bomb of Family Law custody/visitation cases 1. If first strike does not destroy your client, the fall out may destroy your client 2. Combination of emotional impact, seriousness of allegations, foreign and strange medical, psychological and/or legal concepts can paralyze clients and inexperienced attorneys II. What Course Is Not A. Not comprehensive or advanced course in defending physical abuse, sexual abuse, or neglect case B. Not a course in criminal defense tactics or law C. Not a course focused in juvenile dependency procedure/law III. What Course Is About A. Better understanding of how to represent client when abuse allegation occurs 1. Nexus of Family / Criminal / Juvenile Law 2. How to identify some potential pitfalls and discuss basic strategies IV. How Commenced A. Served with pleading B. Call from spouse / former spouse C. Call from Department of Children and Families (DCF) 2

3 D. Call from law enforcement V. Triage Call A. Seriousness of allegation B. How commence C. Need for assistance 1. Rules of ethics 2. Criminal defense necessary 3. Your comfort level and experience VI. Mandatory Reporting A. Florida Statute (1) (a) and (2) Any person who knows, or has reasonable cause to suspect that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for child s welfare.... shall report such knowledge or suspicion to department... via toll free hotline. B. Florida Statute (b): Reporters are required to provide names to hotline 1. Doctors 2. Health and mental health professionals 3. School teachers 4. Social worker, day care center worker 5. Law enforcement officer 6. Judge C. Florida Statute If not reported, then can be prosecuted criminally - misdemeanor of first degree 3

4 What to Do During an Abuse Investigation, Right to Counsel, Triage Issues 1. How an abuse investigation starts (Florida Statute ) Usually involves a call to the abuse hotline regarding suspected child abuse, abandonment, or neglect Abuse can also be reported in writing via fax or to the hotline Once the report is made, the central abuse hotline shall determine if the report requires an immediate onsite protective investigation The department shall immediately forward allegations of criminal conduct to the municipal or county law enforcement agency of the municipality or county in which the alleged conduct has occurred. Sometimes a concurrent criminal investigation is initiated consequently, always be aware that a law enforcement investigation is occurring. Upon receiving a written report of an allegation of criminal conduct from the department, the law enforcement agency shall review the information in the written report to determine whether a criminal investigation is warranted. If the law enforcement agency accepts the case for criminal investigation, it shall coordinate its investigative activities with the department, whenever feasible. If the law enforcement agency does not accept the case for criminal investigation, the agency shall notify the department in writing. (However, generally, DCF will do investigations) To the extent practical, all protective investigations involving a child shall be conducted or the work supervised by a single individual in order for there to be broad knowledge and understanding of the child's history. 2. Know your right to counsel (Florida Statute ) DCF investigators are not required to give Miranda warnings during interviews of accused parents. But remember statements can be used against them. Parents must be informed by the court of their right to counsel in dependency proceedings at each stage of the dependency proceedings. Parents who are unable to afford counsel must be appointed counsel 4

5 You have a right to have an attorney present at every stage of the proceedings, including home visits and criminal investigation (if any) At each stage of the proceedings, the court shall advise the parents of the right to counsel. 3. What happens next? The investigator MUST conduct a face-to-face interview with the child, other siblings, parents, and other adults in the household and an onsite assessment of the child's residence (immediately or within 48 hours). If not immediate interview, then usually contact your client for interview. When an investigation begins, the child protective investigator shall inform any subject of the investigation of the following: - The names of the investigators and identifying credentials from the department. - The purpose of the investigation. - The right to obtain his or her own attorney and ways that the information provided by the subject may be used. - Explain the possible outcomes and services of the department's response - The right of the parent or legal custodian to be involved to the fullest extent possible in determining the nature of the allegation and the nature of any identified problem. - The duty of the parent or legal custodian to report any change in the residence or location of the child to the investigator and that the duty to report continues until the investigation is closed. Investigators should fully inform parents or legal custodians of their rights and options, including opportunities for audio or video recording of investigators' interviews with parents or legal custodians or children. Note: The above information is not always provided. Most lay people do not know about the above reasons. All the more reason to have an attorney present during the interview. 5

6 4. In some counties, sheriff s departments conduct investigations for DCF (Florida Statute ) Beginning in fiscal year , the sheriffs of Pasco County, Manatee County, Broward County, and Pinellas County have the responsibility to provide all child protective investigations in their respective counties. Beginning in fiscal year , the Department of Children and Family Services is authorized to enter into grant agreements with sheriffs of other counties to perform child protective investigations in their respective counties. 5. Photographs and/or Medical Examination (see attached, FS ) Any person required to investigate cases of suspected child abuse, abandonment, or neglect may take photographs of the areas of trauma visible on a child who is the subject of a report. If the areas of trauma visible on a child indicate a need for a medical examination, or if the child verbally complains or otherwise exhibits distress as a result of injury through suspected child abuse, abandonment, or neglect, or is alleged to have been sexually abused, the person required to investigate may cause the child to be referred for diagnosis to a licensed physician or an emergency department in a hospital without the consent of the child's parents or legal custodian. (hospital if emergency or after hours; Child Protective Team otherwise) 6. Understand what steps client should take to protect himself or herself Hire an attorney if it is at all financially feasible Seek counsel with experience defending abuse allegations and who is experienced with litigating DCF and dependency cases in juvenile court Advise the investigator you want to have your attorney present at the home visit and all court proceedings (you are allowed, but they may/may not tell you this). Your client may need to indicate that they wish to cooperate, but need to coordinate visit with their attorney. Remember, Miranda Warnings are required in a criminal case, but not in a DCF investigation 6

7 The falsely accused, if possible, should take pictures and videotapes of the child interacting with the parent, enjoying himself, acting normal, not injured or afraid, etc. Also take pictures/video of the suitable home environment the parent is providing Create a list of people who have seen the accused display appropriate parenting behavior and interact with the child. Provide names and contact information to DCF Document everything! Keep a journal, calendar, etc. and report everything to your attorney Remember the quality of the investigation will depend on the quality of the investigator. These agencies suffer from high staff turnover and the investigator on your case may be brand-new or may be replaced mid-case or mid-investigation. The investigators and case managers are often under staffed and underpaid, which is a contributing factor. The attorney should immediately contact the investigator or law enforcement agency (if criminal investigation is initiated) once retained, and always follow up in writing The letter should include the following language or buzzwords where applicable: - A concurrent family law case is pending or commencing (means issue being dealt with in family court and DCF need not be involved -- issue of preserving DCF resources) - Allegations arise from a highly contested divorce/custody action - There has been ongoing litigation/disputes about custody/visitation - Your client has concerns of parental alienation by other parent - Dealing with young children and memory contamination 7. Triage Issues: The Concurrent Criminal Investigation As stated above, law enforcement may initiate a concurrent criminal investigation If the attorney hired by the accused handles criminal matters as well, counsel could provide representation on this issue as well 7

8 However, frequently this is not the case the other option is to make a referral to a competent criminal defense attorney in the party s area or ally oneself with a criminal law practitioner It is imperative that both attorneys have open lines of communication and keep each other apprised of the status of the respective cases/investigations The attorney representing the accused in the criminal case should contact the law enforcement agency before a filing decision is made, and follow up in writing Cite the same language as #6 above 8

9 Discovery and Other Issues I. Client Self Help (must be done as quickly as possible) A. child s complete medical file (file immediate request and pick up in person) 1. May establish lack of concern of accusing parent 2. No indication of any concern of physician 3. Prior concerns of parent, but no report to DCF by physician (a) Hypersensitivity B. Child s Complete School Record 1. Include request for guidance counselor records or attendance at any school sponsored counseling or support group C. School or School District s Sex Education Curriculum 1. When exposed to sexual concept; how good touch/bad touch explained D. Child s Therapy Records 1. Any mention of abuse 2. Exploration of abuse issues in therapy 3. Statements by accusing spouse to therapist 4. If commenced without client s permission, send certified letter asserting joint decision violation and demand termination of therapy. 5. Beware of Attorney Ad Litem for DK v. Parents of DK, 780 So.2d 301, 307 (Fla. 4DCA 2001) (a) Child s right to assert privilege (b) Nevertheless, still attempt to obtain records II. Client Outline and Attorney Correction or Additions A. Client s outline regarding (from their perspective) important events leading up to allegation and afterwards 2. Attorney amends it based on review of other materials 3. Has to be performed so that attorney/client privilege applies and attorney work product can apply 9

10 III. Outline of Development of all statements of child regarding alleged abuse and how changed over time A. Important in terms of issues of suggestibility and memory contamination B. By client and attorney 10

11 Lack of Privilege I. Florida Statute abrogates all privileges (except attorney client) involving the perpetrator OR ALLEGED PERPETRATOR in any situation involving known of SUPSECTED child abuse, abandonment, or neglect A. Includes Husband - Wife Professional - Client II. Client is to speak only to you or other lawyer (hired by client) about allegation III. If admission to therapist, then therapist must report 11

12 Subpoena DCF Records of Current Investigation (redacting name of reporter) A. Include specific request for protective investigator s chronological notes, initial report to hot line, and case worker notes B. Request on behalf of parent (even if accused parent) pursuant to Florida Statute (2) (d) C. Request on behalf of person accused of abuse [Florida Statute (2) (e)] 1. Florida Statute (2) (e) - by court order that access to such records may be necessary for determination of an issue before the court D. Important because provides step-by-step road map of investigation 1. Also provides you opportunity to attempt to intelligently guess identity of caller to Hotline, even though identify is redacted 2. Access quality of investigation 3. Access theory of motive 12

13 Subpoena or Client/Parent Directly Request Close Out/Final Reports of Prior DCF Investigations Involving child and/or Your Client A. DCF keeps such records for 7 years or until child turns 18 B. Request because parent or accused are directly involved or interested C. Important because it may reveal history of false allegations against client 1. or findings against client 2. or findings against accusing spouse 3. even reports with no findings may be useful D. Such history may be useful in diffusing or eliminating criminal investigation and may assist you in dealing with DCF investigation or otherwise in your case E. Client can request directly 1. Confidentiality agreement 13

14 Subpoena Child Protection Team File A. Child Protective Team assists investigation - Florida Statute B. Multidiscipline Team (Medical exams and interviews of children regarding allegations) C. Interviews are recorded and transcribed (subpoena tape so can compare with transcript) D. Results of evaluation usually given great weight by DCF and law enforcement E. Evaluation conducted within short time of allegation 14

15 Commence Structuring Theory of Case A. Depends upon age and sophistication of child 1. Teenagers have for some gain and young children confused or poisoned or adult misinterpreted what they say B. Existence or lack of corroborating medical evidence 1. Lack of evidence can be ambiguous in terms of interpretation depending on allegation 2. What methodology used during exam 3. What baseline of normal was used to determine allegations were abnormal C. Context from which allegations arose 1. Parental alienation 2. Bad feelings 3. Stereotypical induction 4. Quality and repetition of interviews D. Was investigation performed correctly and fully 1. Have our forensic expert acquire more evidence in terms of quality and quantity (reports, interviews, forensic materials) than information which DCF, parent, or police originally acquired or used in their evaluation 2. Cultivate relationships with forensic professionals in state and out of state (mental health and medical) 3. Theory provides an out for DCF, judge (if bench trial) and/or jury, if criminal or civil trial 15

16 Develop Library 1. The Parental Alienation Syndrome by Richard A. Gardner, M.D. 2. Jeopardy in the Courtroom: A Scientific Analysis of Children s Testimony, by Stephen J. Ceci and Maggie Bruck 3. Child Maltreatment, A Clinical Guide and Reference and Child Maltreatment, A Comprehensive Photographic Reference Identifying Potential Child Abuse - a two set volume by J. A. Monteleone 16

17 Need to Continue Contact with Child if Possible Problem is keeping Children Safe Act - Florida Statute A Fla. Sess. Law Serv. Ch (C.S.H.B.)(WEST). 1. Legislative Intent: protect children and reduce the risk of further harm of sexual abuse 2. Rebuttable Presumption of Detriment a. When a report to child abuse hotline alleging sexual abuse of child; b. Has been found guilty of, regardless of adjudication, or has entered a plea of guilty or nolo contendere to, charges under the following statutes or substantially similar statutes of other jurisdictions: (removing minors from the state or concealing minors contrary to court order; sexual battery; lewd, lascivious behavior; incest or has been determined by a court to be a sexual predator.) 3. Automatic no visitation until hearing and appointment of attorney or guardian ad litem. 4. The court can rely upon any relevant evidence even if not competent in an adjudicatory hearing. 5. If failed attempt to rebut presumption, then court will restrict or eliminate visitation. 6. Special supervised visitation programs 7. If therapist reports that the visitation or other conduct is impeding the child s therapeutic progress, the court shall convene a hearing within 7 business days to review the terms, conditions, or appropriateness of continued visitation or other conduct. 8. Rules of Supervised Visitation Programs. B. Applies directly to Family Law Cases 1. F.S : Protecting Children from Sexual Abuse by Those Entrusted with Their Care by Alexander Caballero and Ingrid Anderson, The Florida Bar Journal, Vol. 82, No.3, March 2008 C. Constitutional Issues (procedural and substantive due process rights potentially violated) 17

18 -- Will take money and time D. Practical Results: At best, supervised visitation; at worse, no visitation 18

19 Obtaining Court Ordered Psychological Evaluations th Judicial Circuit, Palm Beach County Administrative Order No /04* (copy attached) An order for psychological evaluation regarding child custody may be entered based upon agreement of the parties, motion of a party, or on the court s own motion. Unless otherwise ordered, all psychological evaluations shall be conducted by the Court s Psychology Office, 15 th Judicial Circuit, Palm Beach County, Florida. The order for psychological evaluation shall be in the form designated by the court. (August 12, 2004) 2. Fla. Fam L.R.P Examination of Persons (copy attached) Florida Rule of Civil Procedure shall govern general provisions concerning the examination of person in family law matters, except that examination permitted under rule 1.360(a)(1) may include, but are not limited to, examinations involving physical or mental condition, employability or vocational testing, genetic testing, or any other type of examination related to a matter in controversy Commentary: 1995 Adoption. This rule expands Florida Rule of Civil Procedure to specify common examinations in family law matters, but this rule is not intended to be an exclusive list of allowable examinations. Rule should be interpreted to discourage subjecting children to multiple interviews, testing, and evaluations 3. Florida Rule of Civil Procedure A party may request the examination of another party by a qualified expert when the condition that is the subject of the requested examination is in controversy. If allegation is child abuse perpetrated by parent, it can be argued that good cause exists for examination An examination under this rule is authorized only when the party submitting the request has good cause for the examination. At any hearing the party submitting the request shall have the burden of showing good cause. 19

20 Upon request of either the party requesting the examination or the party or person to be examined, the court may establish protective rules governing such examination. 20

21 Psychological Evaluations (pros and cons) 1. Child Abuse in part an impulse control issue 2. Consider private evaluation to test issue - MMPI, CAPI (Child Abuse Potential Inventory) 3. If good result for your client, then submit to investigators, use at visitation hearings pursuant to Florida Statute If negative, then not use and commence looking carefully at trends in evidence you are acquiring 21

22 Psychological Defense - Florida Administrative Code 1. Florida Administrative Code establishes standard of practice for psychologists (Fla. Admin. Code 64B ) and for therapists (Fla. Admin. Code 64 B ) (See attachments) 2. Psychologists cannot make recommendations for custody and visitation if a. has served as child s therapist b. has not evaluated both parties (with observation and test results) c. evaluation of child where appropriate 3. Therapists cannot make recommendations for custody and/or visitation if: a. prior therapists or prior relationship(?) with any parties to evaluation b. not use multiple avenues of data gathering including testing and interviewing methods, c. not involve and communicate with all parties central to child is question (including parties seeking custody or visitation) 4. Question: How will these Administrative Code Sections interact with testimony in hearings pursuant to Florida Statute ? 22

23 Interviewing and Child Sex Abuse Allegations: Some Thoughts **The information in this section credited to Debra Anne Poole, Ph.D, Central Michigan University and her presentation What Competent Interviewing of Children Can and Can t Do (and Why) I. False Allegations of Sexual Abuse A. False allegation rates are very high 1. *In every year since 1989, when DNA analysis was first admitted as evidence in an American court, the FBI has found that in about 25% of the sexual assault cases referred to its crime laboratory, DNA testing exonerated the primary suspect. 2. *In child samples, when honest misunderstandings, etc. are included, estimates of false allegations of sexual abuse jump from 6% to 23% for one comprehensive study (Jones & McGraw, 1987), with rates of 35% or higher when allegations arising in the context of divorce or custody proceedings are included (e.g., Benedik & Schetky, cited Jones & Seig, 1988; Faller 1991: Thoennes & Tjaden, 1990). B. It is very easy to implant false reports in young children 1. *Debra Ann Poole, Ph.D says give her a child between the ages of 3 and 8 for 4-5 minutes and she will get 1/3 of them to claim that their bodies were hurt by an adult. Many will make reports without a single suggestive question, and adults will not be able to distinguish these reports from reports of actual events. II. Interviewing & Suggestibility A. What you are up against when it comes to interviews 1. They see it, they believe it (a) *When adults see a child describe an event on videotape, they tend to believe it: 80% of adults say that the event happened if the child described the event after open-ended questions or after a direct yes-no question. In contrast only 27% believe the report if the child initially said No. 23

24 (b) *The proportion of adults who believe the event is not changed by watching a short educational tape that explains the dangers of yes-no questions, even when that tape includes videotapes of children making false reports just like the ones they will be judging. Even more surprising, a realistic simulation of expert testimony that describes baserates of false reports has no impact on their judgments. B. Children will describe implanted reports even when the interview if technically perfect 1. *The most important message about forensic interviews is that the interview is only a small part of a case, and often not even the most important part. 2. *There are three major types of false allegations in cases involving children: the child is lying (i.e., not telling the truth and knows s/he is not telling the truth), the child has come to believe the false report (i.e., suggestibility is an issue), or the child made comments that were misunderstood by adults (i.e., doesn t think anything bad happened and never did.) The first is associated with older kids; the second and third are associated with younger kids. 3. *You can t win a case by getting your client on the stand, portraying him as a nice guy, and having him say that he is innocent. You have to build a story about how the allegations came about, given what we know about the mechanisms involved in false allegations. 4. *Most cases boil down to details small idiosyncrasies in a case, fleeting comments during an interview, etc. You have to be very detail oriented to build your story, and very open to thinking about and discussing sexual issues in child sex abuse cases. Obtain Following Articles for Library: Poole D & Lindsay S; Children s Eyewitness Reports After Exposure to Misinformation from Parents. Journal of Experimental Psychology, 2001; 7: Poole D & White L; Effects of Question Repetition on the Eyewitness Testimony of Children and Adults. Developmental Psychology, 1991; 27:

25 Poole D & White L; Two Years Later: Effects of Question Repetition and Retention Interval on the Eyewitness Testimony of Children and Adults. Developmental Psychology, 1993; 29: Lamb M; Orbach Y; Sternberg K; Hershkowitz I; Horowitz D; Accuracy of Investigator;s Verbatim Notes of Their Forensic Interviews with Alleged Child Abuse Victims. Law and Human Behavior, 2000; 24:

26 Physical Exams/Findings What s normal? Medical Defense of Sexual Abuse of Children Case *In order to know what s abnormal physically in a child sex abuse case, you must be educated about what s normal *All perceived physical abnormalities found during physical exam are not actually abnormal *You must educate yourself in order to protect your client *Preeminent publisher on what s normal physically John McCann, MD *In Genital Findings in Prepubertal Girls Selected for Nonabuse: A Descriptive Study. Pediatrics, 1990; 86: , McCann studied 93 nonabused prepubertal girls genitally with the use of a coloscope and the results regarding what is normal were somewhat surprising *McCann says: as a consequence of naturally occurring physical changes, there will always be an overlap in findings between nonabused children and the victims of sexual misuse. The appreciation of this reality should serve as a constant reminder that the determination of sexual abuse can rarely rely on a physical examination alone and that consideration of all the components of the investigation especially the information obtained from the child is essential. *In Perianal Findings in Prepubertal Children Selected for Nonabuse: A Descriptive Study. Child Abuse & Neglect, 1989; 12: , McCann also studied 106 nonabused prepubertal boys and 161 nonabused prepubertal girls perianally *McCann says: The number and variety of perianal physical findings found in this population of children were somewhat surprising. There were findings that occurred with such a high frequency that they appeared to be variants of normal. *McCann says: The relatively high incidence of perianal soft tissue changes found in this study does not imply that these findings cannot be caused by sexual abuse. It only means other etiologic factors must be considered before the spector of abuse is raised when unexplained perianal findings are encountered. When medical examiners must maintain a high index of suspicion in this area of unremitting sexual abuse, caution must be exercised during the search for the cause of soft tissue changes discovered in the anogenital region of a child. 26

27 Additional Literature to Obtain for Library: American Professional Society on the Abuse of Children Practice Guidelines: Descriptive Terminology in Child Sexual Abuse Medical Evaluations McCann J; Wells R; Simon M; Voris J; Genital Findings in Prepubertal Girls Selected for Nonabuse: A Descriptive Study. Pediatrics, 1990; 86: McCann J; Voris J; Simon M; Wells R; Perianal Findings in Prepubertal Children Selected for Nonabuse: A Descriptive Study. Child Abuse & Neglect, 1989; 12: