Monthly Archives: February 2012

Zero Tolerance is Not the Answer to Sexting

From the University of New Hampshire: Rigid, zero-tolerance policies to prevent sexting that do not allow for discretion and the ability to address sexting in the context of the situation are ineffective strategies for dealing with this troubling trend, according to a University of New Hampshire professor who studies legal issues in education.

“Zero tolerance for sexting, without an understanding of context, replaces common sense with a rigid response that may be equally administered but is not fair. Turning over alleged sexters to the police for criminal prosecution may meet the dictates of the law, but school officials should have some leeway in turning over the matter to the police,” says Todd DeMitchell, professor of education and justice studies at UNH.

DeMitchell outlines his recommendations in the “Cardozo Public Law, Policy and Ethics Journal” in the article Student Victims or Student Criminals? The Bookends of Sexting in a Cyber World. Martha Parker-Magagna, a doctoral candidate of education at UNH, is a co-author.

“School officials walk the tightrope of responding to sexting in an appropriate way with little guidance as to how to differentiate between a heinous crime better handled by the police and clearly inappropriate adolescent behavior best handled by the school and the parents,” he says.

When sexting is discovered by school officials, DeMitchell recommends that school officials first notify a student’s parents. “Often resolving sexting can be as simple as bringing the behavior to the attention of the parents in order to curb or stop it. Schools must be unequivocal in considering sexting inappropriate and meeting the sharing of photos and texts with a swift and sure response,” he says.

In addition, schools must be acutely aware that sexting may trigger bullying and peer sexual harassment. Such behavior must be dealt with firmly and immediately by school administrators through existing policies allowing for disciplinary action in response to bullying or harassment.

“The taunting of students at school should never be met with indifference and silence. No student should have to run a gauntlet of abuse in order to attend school,” DeMitchell says.

At the same time, district attorneys must weigh whether prosecution is the best approach to dealing with a sexting incident or whether education is a better approach. DeMitchell stresses that society’s fundamental interest in protecting children cannot be lost in a zero-tolerance type of response to sexting.

Finally, lawmakers must fashion a reasonable response to sexting that acknowledges the harm created while not condemning students found sexting to a marginalized life through prosecution for child pornography, he says.

“Sexting is a new challenge. How schools and society respond to sexting will speak to the type of society we construct for ourselves and our children,” DeMitchell says.

Professor DeMitchell welcomes comments on his article. For further information contact him here.

DOJ Interpretation Guts VAWA Protections

DOJ

Okay, so maybe sexually exploited children don’t get you activated. I’ll admit it’s an unpleasant niche most people would rather not think about. And the child pornography restitution statute which is being considered by federal district courts across the country and in several courts of appeal will arguably affect a relatively small number of victims.

A closer look, however, reveals that the child pornography restitution statute, 18 U.S.C. 2259, is exactly the same as two other restitution statutes which were enacted at the same time. The first is the sex abuse restitution act, 18 U.S.C. 2248, which applies to sex crimes committed on federal land, Indian reservations and the interstate trafficking of minors.

The second, however, involves provisions which are at the heart of the federal Violence Against Women’s Act (VAWA) and includes stalking, interstate domestic violence,
and interstate violation of a protection order.

The VAWA restitution statute, 18 U.S.C. 2264, allows any victim who was harmed from stalking, interestste domestic violence or interstate violation of a protection order to receive restitution for the “full amount” their losses including any costs incurred by the victim for—

(A) medical services relating to physical, psychiatric, or psychological care;

(B) physical and occupational therapy or rehabilitation;

(C) necessary transportation, temporary housing, and child care expenses;

(D) lost income;

(E) attorneys’ fees, plus any costs incurred in obtaining a civil protection order; and

(F) any other losses suffered by the victim as a proximate result of the offense.

Congress passed this remedial landmark legislation to fully compensate victims of stalking, domestic violence and interstate violation of a protection order for the losses they suffer. To address these serious harms, Section 2264 makes restitution “mandatory.” To underscore the mandatory nature of restitution, Congress repeated later in the statute that issuance of a restitution order is mandatory.

Section 2264’s provisions are also broader than other federal restitution statutes. The VAWA restitution statute extends its protections to any “victim” who is simply “harmed” by stalking, interstate domestic violence, or the interstate violation of a protection order, requiring neither “proximate harm” nor “direct harm.”

By purposely omitting the narrowing qualifiers “directly” and “proximately” found in other general restitution statutes, Congress decided not to burden victims with any obligation to demonstrate a “direct” or “proximate” harm as prerequisite to receiving restitution.

Unfortunately, the Department of Justice doesn’t agree with this plain statutory language.

Although Congress placed the “proximate result” language only in subsection (F) of the restitution statute, the Department of Justice continues to argue in courts of appeal throughout the country that Congress implicitly intended that phrase be read backwards through the other five preceding sections.

Simply put, DOJ’s position contradicts not only the plain language of the child pornography restitution statute, but the plain language of exact same VAWA restitution statute as well.

Bottom Line: what the courts decide in the coming months about restitution for victims of child pornography will also effect restitution for victims of domestic violence all over the country.

Unfortunately, the Justice Department has abandoned these victims on appeal by advancing a legal standard which the courts consider unworkable.

In October, the Justice Department filed a Supreme Court brief opposing child victims. Last month, the Justice Department asked the Sixth Circuit Court of Appeals to nullify a court-ordered million dollar award to a child sex abuse victim, arguing that the legal standard which resulted in the award is too easy.

Why is the Justice Department arguing for something which the courts of appeal say is unworkable and un-provable, while victims of child exploitation, stalking, interstate domestic violence, and interstate violation of a protection order are left with nothing?

Now, just last week, the Fifth Circuit Court of Appeals—at the Justice Department’s urging—decided to reconsider a landmark decision in favor of these victims. The Justice Department has one more chance to do the right thing by supporting victims.

Please tell President Obama’s political appointee to the Department of Justice Criminal Division, Lanny A. Breuer, to side with the victim in In re: Amy Unknown in the Fifth Circuit.

When Justice Department attorneys refused to even sit with Amy at last year’s oral argument before the Fifth Circuit Court of Appeals in New Orleans, Chief Judge Edith Jones proclaimed:

“What I don’t understand is why the government has switched sides. They were on Amy’s side in the trial court, were they not? I’m not sure how they can switch sides now and say that the statute doesn’t entitle her to relief. That seems very—if not duplicitous—very strange to me. And it’s also in derogation of the obvious intent of that provision of the statute.”

Amy and victims like her need your help. Right now these victims are effectively shut-out of the federal courts by the Justice Department’s wrongheaded policy.

Almost 20 years ago, then-Senator Joe Biden promised victims that they would receive full restitution from criminals convicted of child exploitation, stalking, interstate domestic violence, and interstate violation of a protection order. Ironically, Vice President Biden’s own Justice Department is failing to live up to his vision in the Violence Against Women’s Act.

You can help awaken the Justice Department lawyers in Washington with just a few clicks. Amy thanks everyone for their continued support. You can make a difference in her fight for justice!

For more information on this issue, visit http://www.childlaw.us/restitution/

Homeschooling and Child Protection

Homeschooling is parent-directed education that meets the requirements for regular school attendance. The U.S. Department of Education in its 2007 National Household Education Survey estimated that “1.5 million students (1,508,000) were homeschooled in the United States.”[1] In that same study, parents were asked why they homeschooled their children. “The three reasons selected by parents of more than two-thirds of students were concern about the school environment, to provide religious or moral instruction, and dissatisfaction with the academic instruction available at other schools.”[2]

Almost all states specifically list professional school officials as mandated reporters.[3] The U.S. Department of Health and Human Services found that “professionals submitted more than one-half (56.5 percent) of the cases referred to and assessed or investigated by child protective services (CPS), with education personnel the most frequent source of reports (16.2 percent).”[4] As the number of children being homeschooled increases, the number of reports of suspected child abuse and neglect by school officials regarding those children is obviously decreasing dramatically.

Whether or not there is hard evidence that abuse among homeschooled children is more frequent or severe than those who attend public or private schools, it is not surprising that there is concern by child welfare advocates that homeschooled children may be at risk for undetected abuse simply because these children do not have the benefit of oversight by school officials. Accordingly, some CPS officials would like enhanced authority to intervene, in particular the right to speak directly and privately to the child.

While there is no intrinsic antagonism between home schooling and child protection, it seems that there is an increase in the number of legal actions alleging that child protection services workers illegally search the residence of parents who are home schooling their children.

To what extent have the courts established that this Amendment regulates social workers’ civil investigations? What is the balance between the need for CPS workers to challenge the parent’s Fourth Amendment rights versus the importance of the government’s interest to justify an intrusion into a person’s home? These and other questions are asked following the death or injury of children who were removed from a school setting.[5]

Homeschool advocates note, however, that without definitive evidence that there is an increased risk of abuse, there should be no cause for undue scrutiny and suspicion of homes in which children are homeschooled. Indeed, they ask poignantly, how safe are children in public and private schools? In both cases, we dare not underestimate the formidable task faced by CPS workers.

Daniel Pollack is a professor at Yeshiva University’s School of Social Work in New York City and a frequent expert witness in child welfare cases. He can be reached at dpollack@yu.edu.

An unabridged version of this article originally appeared in Policy & Practice, 70(1), 29, 35.



[1] http://nces.ed.gov/pubs2009/2009030.pdf, page 1.

[2] http://nces.ed.gov/pubs2009/2009030.pdf, page 2.

[3] E.g., Colo. Rev. Stat. § 19-3-304; Haw. Rev. Stat. § 350-1.1(a); Me. Rev. Stat. Ann. tit. 22 § 4011-A(1); Mont. Code Ann. § 41-3-201(2); Neb. Rev. Stat. § 28-711(1); Va. Code Ann. § 63.2-1509.

[4] http://www.childwelfare.gov/pubs/usermanuals/educator/educatorb.cfm#backntwo, Identifying reasons why educators are concerned about child abuse and neglect (2003).

[5] See e.g., Gross, J. (January 12, 2008). Lack of Supervision Noted in Deaths of Home-Schooled. New York Times. Accessible at http://www.nytimes.com/2008/01/12/us/12bodies.html

Fallen Angel in Adoption

As many of you know, The Congressional Coalition on Adoption Institute’s (CCAI) Angels in Adoption™ Program provides Members of Congress the opportunity to honor an individual, couple, or organization from their district that have made an extraordinary contribution on behalf of children in need of homes. I have long supported this effort and any effort to raise awareness about the needs of foster and adopted children.

Back in November, I discovered that none other then Penn State child molester Jerry Sandusky was honored as an Angel in Adoption back in 2002. And quite appropriately, on November 10, 2011, the Congressional Coalition on Adoption Institute rescinded the award with the following statement:

For 13 years, the Angels in Adoption™ award has honored more than 1,800 selfless individuals, couples and organizations who have made extraordinary contributions on behalf of children in need of loving families. In light of the serious allegations against him, and to preserve the integrity of the Angels in Adoption™ program, the Congressional Coalition on Adoption Institute today announced it has rescinded the award given in 2002 to Jerry and Dottie Sandusky, who were among 142 awardees that year. As an organization that fights to stop child abuse, our thoughts and prayers are with the children harmed and the families affected by his alleged actions. This tragedy underscores how important it is to have a foster care system that ensures our most vulnerable children have a safe and stable environment in which to grow.

No reason a few bad apples should spoil the bin, and Sandusky was one rotten apple operating, as most pedophiles do, in plain sight but under the radar, ensconced in a false veneer of respectability and trust.

Imagine my surprise then, when I popped over to the Angels in Adoption website and found Masha Allen‘s adoptive parent, Faith Allen, proudly listed as an “Angel Alumni.”

Back in 2006, Faith got her angel wings when Senator Johnny Isakson and Congressman Phil Gingrey, nominated her (at the same time Georgia child welfare officials were investigating Faith for abuse and the Cobb & Douglas Public Health Tuberculosis Clinic was searching for Masha in order to treat a nasty case of tuberculosis).

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

Gingrey crowed, “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.”

Both these tributes remain on Mssrs. Isakson and Gingrey’s Congressional websites today.

Over two years ago, Maureen Flatley revealed on PoundPupLegacy.org the extent of the cover-up in this case. An excerpt:

As the point of contact between Masha’s team and Mr. Gingery’s office I want to further clarify Michael’s comments, which are on point.

Mr. Gingery, who is was a licensed physician in Georgia when Masha’s case began to play out, was held as a professional to an extremely high ethical standard on the issue of mandatory reporting of alleged child abuse or neglect. 

…When I contacted Mr. Gingery’s office to bring them into the loop on the developments of the previous 24 hours during which the allegations of abuse and neglect by Faith Allen were surfaced, I was angrily confronted by his staffer who had already been in touch with Faith and her erstwhile attorney who provided rather alarming safe harbor for Faith (despite her position as a nurse/attorney who should have recognized a child in danger rather than simple a parent whose rights were under siege.)

Rather than objectively sort out the issues, putting the best interests of the child in the forefront as the Child Abuse Prevention and Treatment Act dictates, Gingery’s staff immediately defaulted to the defense of Faith’s parental rights and most especially the acceptability of her discretion to engage “faith based” interventions rather than conventional mental health treatments. …

…there had been on going discussion between Mr. Gingery’s office and the outside experts for MONTHS that Faith had not been able, for whatever reasons most obviously financial, to meet Masha’s needs and that the family was in crisis. Gingery’s staffer, furthermore, knew a.) that Masha had been hospitalized at least once for a suicide attempt and that the clinicians involved had questioned Faith’s parenting and b.) Faith had “paraded” Masha on the Oprah Winfrey show against advice of all outside counsel, again creating psychological stress for a vulnerable child.

…If anyone had been able to put this case into a “fair and balanced” position in which all the issues on both sides of the case could be sorted out in an objective and responsible fashion, it was Mr. Gingery. As doctor, Mr. Gingery was in fact uniquely positioned to both understand and sort out the desperate needs of this family and most especially a vulnerable child whose interests he had purported to defend. …

…to allow a vulnerable child whose needs were well know not just to the Member but to the entire world to go unmet in what was by then an obviously life threatening situation is not just curious, it’s an outrage.

Like Sandusky, everyone knew something was wrong with Faith’s care of Masha. Many, many people suspected something was just not right with the whole scenario. Some very powerful people knew much more, and yet, the situation persisted year after year after year just like Penn State’s cover-up of Sandusky.

Former United States Attorney (and recent Congressional candidate) Mary Beth Buchanan started the spin early on when she declared on national television in 2005: “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.”

The press had it’s own unique role in perpetrating the fraud. Pittsburgh Post-Gazette reporter Barbara White Stack, who later admitted that “everyone in Pittsburgh knew Faith was mentally ill,” wrote in 2004 that “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.”

Post-Gazette reporter Torsten Ove intoned, “[Masha's] family is her other rock. All it took was love from someone who cared, Faith Allen.”

Even United States District Judge Terrence McVerry declared that “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.”

Masha’s pastor, Winnie Pollard, was probably the most prescient when she declared, “Faith is a blessing. 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.”

Perhaps the biggest spin, however, was perpetrated by Masha’s own legal team, the very lawyers who were charged with ensuring her best interest. According to Masha’s First Lawyer, Linell Lee, “I only see a bright future for [Masha] with Faith. Kid’s Voice is happy to see this day!”

Masha’s Third Lawyer, Diane Sternlieb, declared “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 most recent lawyer, David S. Bills, defending Faith’s questionable care of Masha, trumpeted: “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.”

Which naturally brings us back to the Angel in Adoption program. When I read about Sandusky’s fall from grace, and saw that Faith was still an Angel in Good Standing with CCAI, I decided to perform a public service and let everyone know that Faith’s parental rights to Masha were involuntarily terminated years ago.

I sent the following email to Senator Isakson (on December 13, 2011):

I read with interest this article from last month.

I noticed that Faith Allen is still listed as a 2006 Angel in Adoption sponsored by the Senator and this press release remains on your website:

http://isakson.senate.gov/press/2006/092006allen.htm

In 2008, just two years after she was named an Angel in Adoption, Faith Allen…parental rights were involuntarily terminated by the State of Pennsylvania. …

I worked closely with Sen. Isakson on Masha’s Law. The situation with Faith Allen was almost as bad as Sandusky. You might want to consider taking appropriate action.

Saturday, November 12, 2011

Adoption group rescinds award given to Sandusky


and Congressman Gingrey (on December 13, 2011):

I read with interest this article from last month.

I noticed that Faith Allen is still listed as a 2006 Angel in Adoption and her picture remains on your website:

http://gingrey.house.gov/Photos/?PhotoID=50407

In 2008, just two years after she was named an Angel in Adoption, Faith Allen…parental rights were involuntarily terminated by the State of Pennsylvania. …

I worked closely with Rep. Gingrey on Masha’s Law. The situation with Faith Allen was almost as bad as Sandusky. You might want to consider taking appropriate action.

Saturday, November 12, 2011

Adoption group rescinds award given to Sandusky


and CCAI (on November 15, 2011):

I read with interest this article from Saturday.

I noticed that Faith Allen is still listed as a 2006 Angel in Adoption. In 2008, just two years after she was named an Angel in Adoption, Faith Allen…parental rights were involuntarily terminated by the State of Pennsylvania.

Saturday, November 12, 2011

Adoption group rescinds award given to Sandusky


Not surprisingly, no one has responded, although CCAI did remove the list of Alumni Angels from its website.

Complex Data Gathering Results in State Adoption Totals

A publication from Child Welfare Information Gateway now available online provides estimates of total adoption numbers for the 50 States, the District of Columbia, and Puerto Rico.

How Many Children Were Adopted in 2007-2008? was developed with assistance from Gene Flango, Ph.D., of the National Center for State Courts and offers key findings on the numbers of public, intercountry, and other adoptions as well as data sources and cautionary notes. This publication, which will be updated periodically, provides a single source of recent statistical information on the numbers and types of adoptions in the United States, as well as the numbers of adoptions by State, by data source, and by other classifications. Highlights of the data include the following:

  • In 2007 and 2008, approximately 136,000 children were adopted annually in the United States.
  • The number of adoptions has risen since 2000, but the adoption rate per 100,000 adults has decreased.
  • About two-fifths of adoptions occur through public child welfare agencies.
  • Fourteen percent of adoptions in 2007 and 13 percent in 2008 were adoptions of children from foreign countries.
  • Nearly half of all adoptions were from sources other than public agencies and foreign countries, such as private agencies and Tribes.

The years 2007 and 2008 were chosen because of the length of time it takes to process the data and make them available. There is no one government agency responsible for collecting adoption data, which complicates the process of collecting and aggregating adoption numbers. Data were collected from State courts, State bureaus of vital records, the Adoption and Foster Care Analysis and Reporting System (AFCARS), State departments of social services, and the U.S. Department of State’s Bureau of Consular Affairs. Additionally, each source has its own method for compiling and defining the data. For example, court data are based on the number of adoption petitions filed in the State, whereas bureaus of vital records report adoptions of children born in their States.

Sources also are not consistent in the use of Federal fiscal year or State fiscal years in establishing totals. Even though adoption totals are approximate for the reasons stated above, differences caused by gaps or overlaps are unlikely to affect the conclusions.   

Because of the complexity of adoption and child welfare research, it is difficult to attribute changes in national or State data to any specific policy, practice, or other factor. Further research will provide child welfare professionals with more information to help find permanent families for waiting children. 

To read the full report, visit the Child Welfare Information Gateway website:

http://www.childwelfare.gov/pubs/adopted0708.cfm