Recently in Children's Legal Issues Category

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.

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.

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.

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.

Look who's back! Was it adoption for love? Child trafficking via surrogacy? Or something else? The bizarre case of birdman Stephen Melinger is back in the news, this time in a New York Times article on the perils and pitfalls of surrogacy. Do check out this story in the Times, but just remember from Melinger to womb outsourcing, snowflake adoptions and sperm donor introductions for lesbians, this blog gave you the scoop first.

Powerful mood-altering drugs were prescribed to hundreds of Illinois foster children without the required consent of state child welfare officials, a Chicago Tribune analysis of government data has found.

And increasing numbers of young wards were diagnosed with bipolar disorder and given a class of anti-psychotic medicines that some physicians consider risky for youths because they can cause such side effects as metabolic abnormalities and pronounced weight gain.

Psychiatrist Michael Naylor, MD, who reviews psychotropic medicine regimens for DCFS, said that he worries that "marketing efforts" by pharmaceutical companies are driving increasing diagnoses of bipolar disorder leading to more prescriptions for antipsychotic medicines, and that some "physicians are skirting the consent laws."

A separate report by the University of Illinois at Chicago's department of psychiatry finds that an Illinois psychiatric hospital used medications as chemical restraints on kids. Streamwood Behavioral Health Center, "one of Illinois' largest psychiatric hospitals, dosed foster children with dangerous combinations of mood-altering" medications, "sometimes using the medicines as 'chemical restraints' to control youth who needed counseling."

The report also found that the center, "which has treated roughly 475 Department of Children and Family Services wards since 2007, is 'so understaffed as to be counter-therapeutic,'" and that "hospital staff resorted to extraordinarily high rates of emergency psychiatric medications, physical restraints, and seclusion."

On Monday, a federal district judge in the Eastern District of Texas issued a memorandum opinion and order denying restitution to a now 20-year-old woman known as "Amy" in the case of a defendant who downloaded and possessed her images.

The Court’s decision is a serious set-back for victims of child pornography like Amy in their effort to obtain just and timely restitution for the ongoing crimes perpetrated against them. How can we, as a country, justify awarding tens of thousands of dollars in damages to record companies for downloading a single song, while criminals who exploit children pay nothing?

For over 30 years, Congress and the Supreme Court have recognized that victims of child pornography experience significant life-long harm by individuals like the defendant in this case who trade and possess images of their rape, abuse and humiliation.

It is now up to Congress, the Fifth Circuit Court of Appeals, and the United States Supreme Court to decide this issue in the interest of children like Amy and the American people who have little tolerance for these crimes and the abuse and exploitation of our nation’s young people.

For coverage of this case see the Tyler Morning Telegraph

Further background can be found here.

On December 14, 2009, at 9:00 a.m. E.T., the Urban Institute and the Center for the Study of Social Policy will host an audio Webcast on the impact of the Adoption and Safe Families Act on the safety, permanence, and well-being of abused and neglected children.

The nearly 2-hour session will be moderated by Susan Notkin, New York Director, Center for the Study of Social Policy. Panelists include:

• Olivia Golden, Fellow, Urban Institute
• John Mattingly, Commissioner, New York City's Administration for Children's Services
• Carmen Nazario, Assistant Secretary for Children and Families, U.S. Department of Health and Human Services
• Jeanette Vega, writer, "Rise" magazine
• Nancy Young, Director, National Center on Substance Abuse and Child Welfare

To obtain further information and register for this Webcast, visit www.urban.org/events/Safe-Families-Act.cfm. Information about attending the session in Washington, DC, is also available on that page.