Recently in Legal Decisions 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.

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.

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.

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.

Thanks to Professor Paul Cassell for this post on The Volokh Conspiracy involving one of my cases:

Yesterday U.S. District Judge Patrick Schiltz of the District of Minnesota issued an interesting order regarding a restitution application in a child pornography case. In his order, found here, Judge Schiltz chastises the government for failing to pursue restitution for child pornography cases in his district, even though Congress has made restitution mandatory in such cases. Judge Schiltz wrote:

This Court has recently handled a number of other child-pornography cases in which the United States Probation Office has identified victims who are seeking restitution. Notwithstanding the strict mandates of § 2259, the government has also declined to pursue restitution in those cases. Given the clear Congressional mandate that those convicted of child pornography offenses pay restitution to their victims, the Court will no longer accept silence from the government when an identified victim of a child-pornography offense seeks restitution. If the government declines to seek restitution, the government will have to give the Court some explanation for its decision.

Also check out the Star Tribune which covered this issue in a story today.

Here is the full text of the judge's decision.

Minnesota Public Radio also covered this issue here.

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.

No death penalty here. And I guess it's better than probation. On Monday, Aaron Hymer of Waynesville, Ohio pleaded guilty to raping his daughter’s friend during a sleep-over at his home in March. Hymer’s attorney Marty Hubble said “Aaron has always maintained his innocence, but with the jury system, the possibility was there that he could be in prison for the rest of his life."

Hymer appeared reluctant when he entered his plea and Judge Robert Peeler appeared reluctant to approve the plea. Peeler said ensuring Hymer won’t have access to the girl for eight years — his prison time and probation together — is some comfort.

The victim's parents who were in the courtroom during the plea commented, “You never think anything like this can happen to your daughter. I don’t understand and it crushes me, I have to deal with her nightmares, she can’t sleep in her own bed, I just want to know why? Why? Why? It’s sick.”

There's not too much more to this story, but perhaps the following link helps explain why. Apaprently the judge didn't see this before meting out justice.

Aaron Hymer's MySpace page

Last spring there was a great deal of controversy about Oscar winning film director Roman Polanski's long running attempt to escape justice for his 1977 rape of a 13 year old girl. Back in February, Salon.com published an excellent review of the case and a recently released documentary film about the case. On Saturday, Polanski was jailed in Switzerland on an international warrant as he arrived in Zurich to receive a lifetime achievement award from a film festival.

An international tug-of-war over the 76-year-old director escalated today as France and Poland urged Switzerland to free him on bail and pressed U.S. officials all the way up to Secretary of State Hillary Clinton on the case.

Authorities in Los Angeles consider Polanski a "convicted felon and fugitive." The director pleaded guilty to unlawful sexual intercourse in 1977 with a 13-year-old girl. He was sent to prison for 42 days but then the judge tried to renege on the plea bargain. On the day of his sentencing in 1978, aware the judge would sentence him to more prison time, Polanski fled to France.

French Foreign Minister Bernard Kouchner said he hoped Polanski could be quickly freed by the Swiss, calling the apprehension a "bit sinister." He and his Polish counterpart Radek Sikorski wrote to Secretary of State Hillary Clinton and called Swiss Foreign Minister Micheline Calmy-Rey about the case.

"(Polanski was) thrown to the lions," said French Pedophile Minister Frederic Mitterrand. "In the same way that there is a generous America that we like, there is also a scary America that has just shown its face."

Polanski seems most likely to spend several months in detention, unless he agrees to forgo any challenge to his extradition to the United States. Under a 1990 accord between Switzerland and the U.S., Washington has 60 days to submit a formal request for his transfer.

The Swiss Justice Ministry insisted Sunday that politics played no role in its arrest order for Polanski, who lives in France but has spent much time at a chalet in the luxury Swiss resort of Gstaad. The court theoretically could confine Polanski to his Gstaad chalet, but up to now there has never been a case of house arrest in such a situation.

The U.S. has had an outstanding warrant on Polanski since 1978, but the Swiss said American authorities have sought the arrest of the director around the world only since 2005.

His victim, Samantha Geimer, who long ago identified herself, has joined in Polanski's bid for dismissal, saying she wants the case to be over. She sued Polanski and reached an undisclosed settlement.

A native of France who was taken to Poland by his parents, Polanski escaped Krakow's Jewish ghetto as a child during World War II and lived off the charity of strangers. His mother died at the Nazis' Auschwitz death camp.

The arrest prompted angry criticism from fellow filmmakers and actors across Europe.

"It seems inadmissible ... that an international cultural evening, paying homage to one of the greatest contemporary filmmakers, is used by police to apprehend him," says a petition circulating in France and signed by artists including Costa Gavras, Stefen Frears and Monica Bellucci.

Oscar-winning director Andrzej Wajda and other Polish filmmakers also appealed for Polanski's immediate release.

"(He has) atoned for the sins of his young years," Jacek Bromski, head of the Polish Filmmakers Association, told The AP. "He has paid for it by not being able to enter the U.S. and in his professional life he has paid for it by not being able to make films in Hollywood."

More on tihs story:

LA prosecutors: Polanski efforts go back decades

Polanski arrest draws cheers and jeers in Europe

France rallies to Polanski's defence while Hollywood watches

From today's Christian Science Monitor:

Federal prosecutors and New York lawyer James Marsh are persuading courts to order anyone caught with illicit images to pay financial restitution to child victims.

Federal prosecutors are embracing an aggressive approach to fight the spread of child pornography on the Internet, urging judges across the country to order full restitution to identified child victims in cases where the defendant possessed the images but played no role in their creation.

Generally, restitution is awarded in cases where a defendant's direct actions caused the injuries suffered by the victim. In a child pornography case, the person most responsible for injuring the child is the pedophile who abused the child, recorded images of the abuse, and then traded or sold those images to others.

But child-victim advocates say that is not the only harm. Those who download child pornography help set the stage for future abuse by fostering an active market for such images.

This novel - and controversial - strategy is the brainchild of New York lawyer James Marsh. He represents a 20-year-old woman who was raped and sexually abused at age 8 or 9 by an uncle who recorded the abuse and sent the images to a pedophile who requested them. The resulting still photographs have been actively traded on the Internet since 1998.

Read this entire article by Warren Richey in the Christian Science Monitor.

By now the story of Savana Redding is well known, at least to readers of this blog where we have been discussing this case for almost a year.

After escorting 13-year-old Savana Redding from her middle school classroom to his office, an assistant principal accused her of distributing over-the-counter pain relief pills to fellow students. Savana denied the allegations and agreed to a search of her belongings. Finding nothing, the assistant principal then sent Savana to the school nurse for a strip-search. That search also turned up nothing.

Savana’s mother filed suit against the school district and the staff members who authorized and participated in the investigation alleging that the strip search violated Savana’s Fourth Amendment rights. Claiming qualified immunity, the staff members moved for summary judgment. The District Court granted the motion, finding that there was no Fourth Amendment violation, and the en banc Ninth Circuit reversed.

The case was appealed to United States Supreme Court. As we reported in April, Savana's case wasn't looking very good at oral argument where the mostly male justices reacted skeptically to her claim. Alas we, along with most commentators, were wrong. Last week, a near unanimous Court held that the strip search violated Savana’s Fourth Amendment rights.

The court recognized that for school searches, “the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause.” T.L.O., 469 U. S., at 341. Under the resulting reasonable suspicion standard, a school search “will be permissible … when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id., at 342. The required knowledge component of reasonable suspicion for a school administrator’s evidence search is that it raise a moderate chance of finding evidence of wrongdoing.

The Court found that while there was sufficient suspicion to justify searching Savana’s backpack and outer clothing, the suspected facts pointing to Savana did not indicate that the drugs presented a danger to students or were concealed in her underwear and therefore there was insufficient suspicion to warrant extending the search to her underwear.

The search necessarily exposed Savana's breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings. Savana’s subjective expectation of privacy is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation is indicated by the common reaction of other young people similarly searched, whose adolescent vulnerability intensifies the exposure’s patent intrusiveness. Its indignity does not outlaw the search, but it does implicate the rule that “the search [be] ‘reasonably related in scope to the circumstances which justified the interference in the first place.’” T.L.O., supra, at 341.

Perhaps the Court best summed up its position as follows:

Here, the content of the suspicion failed to match the degree of intrusion. Because the assistant principal knew that the pills were common pain relievers, he must have known of their nature and limited threat and had no reason to suspect that large amounts were being passed around or that individual students had great quantities. Nor could he have suspected that Savana was hiding common painkillers in her underwear. When suspected facts must support the categorically extreme intrusiveness of a search down to an adolescent’s body, petitioners’ general belief that students hide contraband in their clothing falls short; a reasonable search that extensive calls for suspicion that it will succeed. Nondangerous school contraband does not conjure up the specter of stashes in intimate places, and there is no evidence of such behavior at the school;

In other words, stop acting like power crazed morons. Sometimes a Motrin is just a Motrin.