ChildLaw Blog

Appellate decisions regarding foster care are rare and decisions that focus on foster children are rarer still. So when two decisions appear in the space of about a week they deserve some commentary. One is from the Maryland Court of Appeals, Maryland's highest court, and addresses an issue of great interest: under what circumstances and to what extent does a foster child's attachment to foster parents impact the rights of the biological parents when such parents are confronting the termination of their parental rights? The other case, from the New York Appellate Division, also addresses an issue of interest: can foster children sue foster parents for negligent supervision?

A lesson that can be learned from both cases is that the laws that affect foster care in general and foster children in particular are far from uniform. Each case provides insight into these important issues and suggests how the law may evolve.

Broadcast today on The Kojo Nnamdi Show on WAMU in Washington, DC:

Traditionally, courts have punished those convicted of possessing child pornography with heavy jail time. But in a growing trend, victims are demanding that offenders pay restitution too. The approach is generating debate about how far courts can go in punishing people who are caught with pornography, but aren't the direct perpetrators of the crime.

Listen to the re-broadcast here.

This just in from Philly.com:

A group of Lower Merion and Harriton High School parents met to discuss ways to derail the possibility that a federal lawsuit over laptop spying could lead to a lengthy and expensive class-action case against their district.

Bryn Mawr resident Michael Boni, one of the organizers, said yesterday: "We have spoken to our neighbors and friends, and it seemed that there was a groundswell of opposition to one family with one lawyer bringing this action on behalf of the community."

He said the parents were "not suggesting there weren't problems" with how the district has handled the laptop issue. "But we don't think [a class-action lawsuit] is the answer."

The group, which calls itself lmsdparents.org, is limited to parents of students at the two high schools. Between 300 and 400 parents had signed on by yesterday afternoon, said Bob Wegbreit, another founder.

A related group calling itself Parents in Support of the Lower Merion School District, which said it shared the same objectives, had garnered more than 700 signatures on an online petition by yesterday evening.

Andy Derrow, a Harriton junior's father who has joined the new group, said yesterday: "There are a lot of us who are incredibly skeptical of the motives of the Robbins family." He said the district was a "pioneer" in buying laptops for students to use at home as well as in school.

"It is so easy to second-guess the decision [to use the laptop theft-tracking device], but there was no handbook out there for how to do it," he said. "We are all waiting for all the facts to be known, but so far, our attitude is that we want to help the school district fix whatever needs to be fixed and to move on."

Read the entire story here.

FindLaw columnist and Cornell law professor Sherry Colb takes on a question involving my client that has sharply divided courts: Should a person who is found to have committed the crime of possessing child pornography be required to pay restitution to each child who appears in those images? The question has been posed very sharply recently, because images of one child victim -- whose pseudonym is "Amy" -- have been at issue in 350 criminal cases across the country. Moreover, the difference in the amount of restitution awarded in those cases is dramatic: Two Florida judges together awarded over three million dollars; a California judge awarded only $5000; and a Texas judge refused any award at all.

Read Professor Colb's entire article here.

The Lower Merion School District recently admitted to activating the webcams on 42 "missing" school-owned laptops without the knowledge or permission of students and their families. Surprisingly, the software that performs this function is not only widely available, it's free and downloadable by anyone.

One such program is called Prey. It's open source and was recently discussed in this TechRepublic video.

Prey is a lightweight program which runs in the background and is completely hidden to the end user. It's built in modules so an administrator can choose whether or not to install certain features like the ability to activate a laptop's webcam. Clearly, if they were using Prey (and it is by no means certain that they were), someone in the Lower Merion School District choose to enable this function. A laptop does not need to be "missing" in order to activate one or more of Prey's monitoring capabilities. An administrator, or anyone with access to the Prey internet control panel, can activate, for example, a laptop's webcam, anytime.

I am, perhaps, always the skeptic in these matters. But as anyone who has read this blog knows, this kind of activity is not surprising. Remember Brannum v. Overton County School Bd, covered here, where school administrators installed and operated video surveillance equipment in the boys' and girls' locker rooms? What about strip searching students over Advil in the Savana Redding case? Even the FBI was implicated when several employees were caught using security cameras to spy on underage girls in a dressing room during a prom dress charity event.

Sadly, it shouldn't be shocking to anyone that the Lower Merion School District administration is finally joining the cyber sexting party. Even sadder is the fact that some students knew something was amiss with their webcams but either didn't care or just chose to cover the webcam with a post-it.

Now where did I put my laptop? Hey, who deleted my copy of Brave New World. And why is my webcam blinking . . . . Thank goodness it's only the school nurse making sure I'm not chewing on an illicit Advil. Ms. Miller, if you're out there, it's only a cinnamon flavored tic tac. Really. It is.

In two separate stories today, the Los Angeles Times and ABCNews.com consider the issue of restitution for victims of child pornography and contribute new information to the debate (which still to me doesn't seem like much of a debate):

From the LATimes:

The issue of criminal restitution in child pornography possession cases emerged last February in Connecticut when a federal judge said he would order a man convicted of possessing and distributing child pornography to pay about $200,000 to Amy. The judge said it was the first criminal case in which someone convicted of possessing illegal images — but not creating them — would be required to pay restitution.

Since then, requests for restitution have picked up as more victims are identified — and as a couple of victims, including Amy, have hired attorneys, said Meg Garvin, executive director of the National Crime Victim Law Institute in Portland, Ore.

Hundreds of requests have been filed nationwide, most of them by Amy's attorney, James Marsh of New York. Marsh said that as recently as five years ago, restitution would have been impossible because victims wouldn't have known when someone was caught with an image of them. The Crime Victims Rights Act of 2004 set up a system for notifying the victims. Now, Marsh gets several notices a day on behalf of Amy.

Marie Failinger, a Hamline Law School professor, said allowing restitution in criminal cases is important because many victims don't have the resources to pursue civil cases. She predicted it would take three to five years for courts to figure out a consistent way to handle requests for criminal restitution.

Meanwhile, victims' advocates see criminal restitution as one more tool for fighting child porn.

"The people who engage in this stuff need to be held accountable, even if they are not the person who is raping the child," said Ernie Allen, president of the National Center for Missing and Exploited Children. "People who are distributing this stuff, people who are downloading this stuff — when they do that, there's a victim, and there's a real harm."

From ABCNews.com:

Not every jurisdiction agrees with the heavy court-ordered payments for those who view such images. Some judges have said restitution goes too far in punishing pedophiles whose only crime is to view photos, but Amy's lawyer, James Marsh, disagrees, saying the brutality in the "secret society" of child pornography requires tough measures.

"This is not 13-year-olds in bras or sexting or 17-year-old girls gone wild -- these are kids who are raped," said Marsh, a New York City lawyer.

"In one notorious set of images, the father used to put a studded collar around his 6-year-old and wrote on her in what looked like blood, 'I am Daddy's little girl, rape me.' He locked her in a dog cage," he told ABCNews.com.

Marsh is now seeking restitution in 350 cases that involve photos of Amy, through automated filings to the United States attorneys handling the cases.

In 1995, Marsh helped update a federal law that gives victims the right to sue anyone who produces, distributes or possess their child sex abuse images. It now provides statutory damages of $150,000 for each violation of federal child pornography provisions and was incorporated into the Adam Walsh Child Protection and Safety Act and signed by President Bush 2006.

"There is a misunderstanding of the crime, that it's photos of girls in bathing suits running around the sprinkler," said Marsh. "And people think pictures are not a big deal, it's just another greedy lawyer coming to cash in. But they don't understand the true nature of these criminal syndicates or the experience of the victim. For me, it's a no-brainer."

To read both of these excellent stories, visit the LA Times and ABCNews.com.

From The Legal Intelligencer:

Lawyers were scratching their heads on Thursday over a federal appellate court's seemingly conflicting rulings in a pair of closely watched student-speech cases that both involve high school students who were suspended for creating fake MySpace pages on their home computers to ridicule their principals.

Although the cases appeared at first glance to raise nearly identical legal questions about the limits on a school's power to discipline students for off-campus speech, the 3rd U.S. Circuit Court of Appeals sided with the student in Layshock v. Hermitage School District and with the school in J.S. v. Blue Mountain School District.

In Layshock, a unanimous three-judge panel declared that punishing students for off-campus speech violates their First Amendment rights. But the Blue Mountain panel split, voting 2-1 in holding that students may be punished for lewd speech on the Internet about school officials that has the potential to create a substantial disturbance at the school.

In Layshock, Judge Theodore A. McKee concluded that the student's suspension violated his First Amendment rights because the speech took place almost entirely off campus.

"It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child's home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities," McKee wrote.

"Allowing the district to punish Justin [Layshock] for conduct he engaged in using his grandmother's computer while at his grandmother's house would create just such a precedent," McKee wrote in an opinion joined by Judges Jane R. Roth and D. Brooks Smith.

But in Blue Mountain, Judge D. Michael Fisher concluded that school officials have the power to punish "student speech, whether on- or off-campus, that causes or threatens to cause a substantial disruption of or material interference with school or invades the rights of other members of the school community."

The Constitution, Fisher said, "allows school officials the ability to regulate student speech where, as here, it reaches beyond mere criticism to significantly undermine a school official's authority in challenging his fitness to hold his position by means of baseless, lewd, vulgar, and offensive language."

In dissent, Judge Michael A. Chagares said he believed that "neither the Supreme Court nor this court has ever allowed schools to punish students for off-campus speech that is not school-sponsored and that caused no substantial disruption at school."

Read the entire story on Law.com.

From Wednesday's New York Times:

When Amy was a little girl, her uncle made her famous in the worst way: as a star in the netherworld of child pornography. Photographs and videos known as “the Misty series” depicting her abuse have circulated on the Internet for more than 10 years, and often turn up in the collections of those arrested for possession of illegal images.

Now, with the help of an inventive lawyer, the young woman known as Amy — her real name has been withheld in court to prevent harassment — is fighting back.

Read the complete story here.

The first law review article on the topic of wrongful death of children in foster care has just been published. It is co-authored by Daniel Pollack, Professor at the School of Social Work at Yeshiva University in New York City and a frequent expert witness in child welfare lawsuits, and Gary Popham, Jr., an attorney in Arizona. For a PDF of the article please contact Professor Pollack.

For more articles on ChildLaw by Professor Pollack click here.

More coverage and an update from the Legal Intelligencier on Friday's first ever federal appeals court hearing on sexing as child pornography:

As the nation's first case involving criminal prosecutions of teenagers for "sexting" made its way to a federal appeals court in Philadelphia, all three judges seemed skeptical of the prosecutor's claim that child pornography laws are violated when a teen transmits a nude image of herself.

The three 3rd U.S. Circuit Court of Appeals judges also appeared poised to declare that former Wyoming County District Attorney George Skumanick Jr. violated the First Amendment rights of three girls with his threat of a criminal prosecution if they refused to take a class he had designed to educate youths about the dangers of sexting.

More on this case at the First Amendment Center and Wilkes-Barre Times Leader.

This just in from the Legal Intelligencier:

A federal appeals court on Friday takes up the growing practice of "sexting" — in which teenagers transmit nude and semi-nude photos of themselves and others by phone — as the judges tackle the vexing question of whether such images can be deemed child pornography.

The appeal in Miller v. Skumanick stems from a civil rights suit brought by three Wyoming County girls against then-District Attorney George Skumanick Jr. alleging that he violated their First Amendment rights with his threat of a child pornography prosecution if they refused to take a class he had designed to educate youths about the dangers of sexting.

The case is the first in the country to challenge the constitutionality of bringing child pornography charges in the context of sexting.

I covered this case extensively last spring at Sexting Students Strike Back where you can find the legal complaint, several comments, and links to coverage in the New York Times and Pittsburgh Post-Gazette.

Last month, Cambria County, Pennsylvania terminated the parental rights of one of the most celebrated adoptive parents of the last decade, Faith Allen. Russian orphan Masha Allen, who was a victim of sex trafficking when she was five years old, first came to public attention through a story in the Pittsburg Post-Gazette and later appeared on ABC Primetime, Nancy Grace and Oprah. Masha's story was also featured in the LATimes, Washington Times, and WESH news in Orlando. In 2006, Senator John Kerry passed a major piece of federal legislation in her name, Masha’s Law. Last month Masha was orphaned again when Faith’s parental rights were terminated. Masha Allen’s second adoption and third family in 17 years - what went wrong?

Oprah
“After all the terrible things Masha has endured, she finally has the mother she's always dreamed of having. Though her wounds are far from healed, life might be looking up for this young survivor.”

Nancy Grace
“I want to go to a special lady with us tonight. It`s Masha`s new mom, her adoptive mother, who is herself a crime victim. Faith is with us. You had to go through H-E-double-L to adopt this child. And I know that you`re doing this for Masha. She`s one of my new heroes tonight.”

Senator Johnny Isakson
“After a lifetime of unimaginable hardships, Masha now has a safe home filled with compassion and love thanks to her Angel in Adoption, Faith Allen.”

Congressman Phil Gingrey
“Faith Allen is a shining example of the selfless love adoptive parents give their children. Faith is more than just Masha’s adoptive mother; she is her pillar of support, providing encouragement as Masha bravely shares her story. Everyone who spends time with Faith and Masha feels the warmth and kindness that make Faith an Angel in Adoption.”

United States Attorney Mary Beth Buchanan
“Masha has been adopted by a very loving family who has changed her name and moved her to another part of the country, where she can make a new start and have a very, very wonderful life ahead of her."

Maggie Farley - Los Angeles Times
“Masha was placed in the care of Faith, a gutsy 28-year-old who legally adopted her a year ago.”

Barbara White Stack - Pittsburgh Post-Gazette
Faith would go on to follow in Judge Allen's footsteps, caring for foster children.

One of them was an 11-year-old whom she affectionately calls Mea, a child like Faith who suffered horrible abuse and night terrors. Just as Judge Allen awoke Faith from the overwhelming nightmares, held her and read to her religious passages, Faith in turn comforted Mea.

They believe divine intervention brought them together to give Judge Allen, the mother of three boys, the daughter she never had and to give Faith and Mea the help they needed. But when the judge saw Faith with her first foster children, she knew it would be all right. ‘She has a deep capacity to love," the judge says, "If anything, my biggest concern now is that she wants to help everybody.’

Just as when Allen agreed to take Faith in, Faith had no idea at that point how terribly Mea had been hurt. Faith believes God placed Mea with her because she could understand her pain and her needs.

It is so awesome for her to be matched with a little girl of similar background who she is able to parent and minister to. I think it was by divine orchestration that it happened that way," Allen says. "And Mea reminds me so much of Faith. She has the sweetest, gentlest spirit."

Faith will never be able to bear her own children because of the abuse she suffered. But she will be a mother.

This afternoon, Faith Elizabeth Allen will adopt Mea. And officiating at the ceremony will be Judge Cheryl Allen.

Judge Cheryl Allen
“And I began to think about the fact that many people would say that this adoption is something that is just occurring by happenstance, but I don't believe that to be the case, and this is not a typical every day, ordinary adoption, so it's not -- so, I'm not going to say typical every day, ordinary things, but I've known Faith for approximately three years, and I know that Faith has been through a lot, and the type of childhood that she had, most of us would have never survived, but Faith is a fighter, and she is a survivor, and I can say that for all the trials and all the tribulations and all the abuse and all the difficulties you have been through, Faith, you know, what the enemy meant for bad, you managed to, through your faith, use it for good, and that is why you are here, or we are here today, because everything that you have been through, as difficult as it was, it has served to prepare you for just such a time as this.”

“Many people who have experienced what you've experienced, and who have the type of history that you have, have become bitter. Many of them, unfortunately, having been victims of abuse, have gone on to become perpetrators of abuse . . . you have been able to turn your trials and tribulations into a testimony, and it is because of your openness and your willingness to share your story that you will serve as a blessing to many people.”

“I know you have been a blessing in my life. You have been a blessing in Masha's life, and will continue to do so, and I believe that there will be many people blessed by your testimony and your experience, and I also believe that only a wise and all-knowing God could have taken a young girl from Georgia and connected her with a young girl from halfway around the world and brought the two of you together, and I know that -- I don't know everything that God has in store for you, but it must be something pretty awesome, because so many things have tried to come against this day coming to pass, as we know, but we are all here for you.”

United States District Judge Terrence McVerry
“I'm so happy, Masha, for you and I hope and pray for you to have a happy life with Faith, and I'm sure that that will come to pass. Anything we can do to help you, I will be more than happy to. Congratulations.”

Masha's First Lawyer: Linell Lee - Kids Voice
“I would like to say that Masha is an incredible little girl, and she's been very strong, and she's a survivor too, and I only see a bright future for her with Faith. Kid's Voice is happy to see this day!”

Pastor Winnie Pollard
“Faith is a blessing. Her strength inspires anyone who knows. There is, without any question, that the two of them are going to be a story worth watching to see how their lives are going to effect so many others. They are a sign of hope in the City for everyone that has struggled liken unto Faith and every child that is in need of help liken unto Masha.”

Masha's Third Lawyer: Attorney Diane Sternlieb
"I applaud Faith's courage. I have spent many, many months with Faith and Masha and have witnessed a bond of love between these two. Masha is lucky to have Faith in her life!"

Masha's Current Lawyer: David S. Bills writing about the withdrawl of Masha's Fifth Lawyer, Robert N. Hunn
There is no conflict of interest and Hunn's request to withdraw is not based on any conflict of interest. What he said was irreconcilable differences with Bills and Faith, both of whom you should correctly assume have Masha's interest at the forefont. There is no basis for you assume anything to the contrary.

Faith received a major award as an Angel in Adoption™ for her outstanding contributions toward the welfare of children in the United States foster care system and orphans around the globe. U.S. Senator Isakson proclaimed: “Faith Allen, who adopted her daughter, Masha, last year, is a truly amazing woman who embodies the spirit of the Angels in Adoptions program. … Masha now has a safe home filled with compassion and love thanks to … Faith Allen.” Representative Gingrey added: “Faith …is her pillar of support, providing encouragement as Masha bravely shares her story. Everyone who spends time with Faith and Masha feels the warmth and kindness that make Faith an Angel in Adoption.

Torsten Ove - Pittsburg Post-Gazette
In December, Faith decided to move from Pittsburgh to get a fresh start.

These days, Mea has as normal a life as anyone could expect, considering how it began. She relies on her faith, often quoting a passage from Psalm 61: "Lead me to the towering rock of safety, for you are my safe refuge, a fortress, where my enemies can't reach me."

Her family is her other rock.

All it took was love from someone who cared, Faith Allen.