Parents’ Medical Nightmare

The Pelletier family is going through every parent’s worst nightmare. Their 15-year-old daughter, Justina, has been struggling with a rare disease that could lead to death. There is no cure for this disease, but despite the bleak prognosis, the Pelletier family has been seeing the best doctors on a regular basis in an attempt to treat their daughter.

During one of their most recent attempts to seek the best medical care available for their daughter, they were met with a series of unfortunate events. The Pelletier family had been bringing their daughter to Tufts Medical Center where she was being treated for Mitochondrial disease, which is a disease that attacks the mitochondria inside cells in the body. According to UMDF.org these organelles give the body 90% of the energy needed to “sustain life and support growth.” As the disease progresses, more and more cells begin to die and eventually entire organs cease functioning.

Justina began experiencing gastrointestinal problems, while under the care of physicians at Tufts for her disorder. The treating physician at Tufts recommended she see a gastroenterologist for the issue. Justina had previously been seen at Boston Children’s Hospital (BCH) by Dr. Alejandro Flores, a gastroenterologist, and her treating physician thought sending her back would be in her best interest to address the gastrointestinal issues.

Hospital in the SnowThe family was unable to take Justina in their car because the East Coast was experiencing horrible weather conditions and her wheelchair would not allow easy transportation in the snow. Justina was sent to BCH via ambulance and was forced to enter through the emergency room, despite the fact that she was there to see a specific doctor.

Once she entered the emergency room, everything changed. The doctor who admitted her refused to allow her to see the doctor to whom she had been referred and, after a brief consultation, determined she was suffering from psychosis rather than mitochondrial disease. The doctor then brought in a psychologist who diagnosed her with somatoform disorder, which causes the body to produce symptoms of a disease without identifiable physical cause. No further medical testing was done to determine if the original diagnosis of mitochondrial disease was accurate.

Instead, the doctor at BCH insisted that the parents cease medical treatments with the other hospital because he thought it was unnecessary. When they refused to do so, BCH contacted the Massachusetts Department of Family and Children (DFC), alleging the family was medically abusing their daughter.

Arm with IVSince then, DFC has taken custody of Justina and received permanent custody of the teen pending further hearings. The judge in the case has been frustrated with the parents’ lack of cooperation and has chastised them for making the case more complex. The parents violated a gag order put in place by the judge on the case and spoke with the media to get attention for the case in hopes that people would gather in support. This seemed to have the opposite effect where the judge was concerned, though the parents felt they needed to shed light on this injustice. Since then, the public has rallied in support of the parents, but the judge is less than pleased.

One can hardly blame the parents for being irate: their child was taken from their custody and refused the medical treatment she desperately needs. At this point the parents are afforded a weekly meeting with their daughter and have had to watch as she slowly deteriorates from this horrible disease. She has not been given the opportunities to attend any religious ceremonies nor has she been provided the education that other children her age are privy to. She is now two years behind her peers in school and her medical condition has only gotten worse. This case has been ongoing for over 13 months and there is still no end in sight.

One would hope that this situation could never happen, but the reality of it is sometimes Child Protective Services (the name of the analogous agency in Arizona) gets involved in cases where they are not needed. Though they must respond to these allegations, it is the hope of every parent who has a child with a rare illness that, once the report has been documented and investigated, the allegations will be dropped.

PhoneIn Tempe, as well as around the state, Child Protective Services (CPS) can get involved in allegations of child abuse in many ways. Usually, an allegation is made through the CPS hotline, but CPS can also become involved if police are investigating an issue that involves children. According to A.R.S. 13-3620, certain people are “mandatory reporters.” These reporters are mandated by state law to report any reasonable suspicion they have of a minor being abused. Every state has these laws and it is likely Massachusetts has a similar law in place. Physicians, in Arizona as well as most states, are among those who are required to report these reasonable beliefs of abuse. For example, if a parent brought a child into Phoenix Children’s Hospital and the treating physician noticed bruises on the child’s back, but was treating a broken arm, the doctor may have a reasonable belief the child is being abused and contact CPS.

When CPS receives an allegation of abuse, such as the allegation made by the doctors at BCH, they follow internal protocol to decide whether the allegation needs to be investigated further. At this point, it is important to have any information regarding a rare disease available. Making sure everything is well-documented can be a parent’s saving grace. Though it does not always stop CPS from initiating an action to remove the child from the parent, it can be very beneficial when it comes time to face a judge.

Once a child has been removed, it is often a significant legal battle to get the child returned, and this process can take a substantial amount of time. We cannot assume the facts of the case, especially in this matter; however, often once it has been shown that a child has a rare disease and was being given the best of care, the courts respond by returning the child to the family. It is ghastly to think something like this could happen in Arizona, but it is a reality that parents with children who do not have well-known diseases often face.

For more information on CPS Removals click here.

Posted in Brad TenBrook, Child Protective Services, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , , | Leave a comment

Former NFL Player Indicted

Former NFL player Darren Sharper, was indicted for sex-related offenses that occurred in Tempe, Arizona. The former star is alleged to have used Ambien to drug women and sexually assault them while they were passed out.

Prison Stairs

Under A.R.S. § 13-1406, if convicted, Sharper would face a minimum of 5.25 years in jail. The statute provides a sentence enhancement of 3 years for persons who use flunitrazepam, gamma hydroxy butyrate or ketamine hydrochloride without the victim’s knowledge during the course of a sexual assault; however, Ambien may not fall into that class. The sentence, if he is convicted, could be further enhanced if he has been convicted of prior felonies. The minimum sentence for someone who has two prior felonies would be 14 years.

Sharper has been accused of many similar cases in other states including California and Nevada. Several jurisdictions have already filed charges and are all looking for their turn to prosecute.

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Munchausen by Proxy?

It’s a tragic story. Garnett Spears, a 5-year-old boy, was given deadly amounts of sodium through his feeding bag, allegedly by his mother.

After beginning treatment, hospital tests revealed unusually high amounts of sodium in the boy’s body, which accounted for his neurological symptoms. With this bizarre finding, the doctors at the hospital immediately notified CPS, who began an investigation into the matter.

Children at hospital

In Arizona, according to A.R.S. § 13-3620, it is mandatory for treating physicians to report any reasonable belief that a minor is a victim of physical injury or child abuse. For instance, if a Mesa mother brought her son to Cardon Children’s Medical Center with burn marks that appeared to be caused by a cigarette, they would likely contact CPS to investigate the incident.

New York has a similar law, NY SOC SERV § 413, which states that physicians are required to report if a child has been maltreated or abused and has come to them in their official capacity. The doctors in this matter saw a red flag in the unusual test results and knew they must report the incident immediately.

While the boy was in the hospital, his mother called a neighbor to dispose of his feeding bag. The neighbor, suspicious of the odd request, decided to retrieve the bag but instead of disposing of it, turned it over to investigators looking into Garnett’s death.

Mother and ChildWhen the authorities received the feeding bag from the neighbor it was tested to determine if he was being fed the high amounts of sodium through the feeding bag inserted into his abdomen. Tests revealed the bag indeed contained high levels of sodium that accounted for the dangerous levels of the chemical that killed him. Unfortunately, it was too already late for Garnett.

Through investigation, authorities found that the mother had been documenting the son’s multiple illnesses through social media. They believe Spears may suffer from Munchausen by proxy and caused her son’s illness, and ultimately death, for attention. It is likely she did not intend to cause the untimely death of her son but that was the regrettable result.

Family and friends gathered in support of Spears through her posts regarding her son’s illness and his stay at the hospital was no different. Spears denies giving her son the excess amount of sodium, but authorities are still investigating the matter and will likely charge her with the crime.

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Getting Back Baby Jack – Putative Father Registration and Consent to Adoption in Arizona

A nightmare scenario for one Utah father has made national news.  The most disconcerting part of his story is that it could happen again right here in Arizona.

In 2010, Jake Strickland learned that he was to become a father.  Strickland and the baby’s mother, Whitney Pettersson Rathjen, mutually agreed to share joint responsibility for the care of their son despite their inability to maintain their intimate relationship together.  As the pregnancy progressed, Strickland became more and more involved.  He invited Rathjen to numerous family gatherings, paid for medical expenses and groceries, attended doctor appointments, and even converted a room in his home into a nursery to prepare for the arrival and care of his child.

During this time, Strickland and Rathjen briefly discussed the issue of whether Strickland should register as the baby’s putative father.  A putative father registry reserves potential paternity rights (including consent to adoption) for the unwed biological father of a child in the event that parentage is disputed after the baby is born.  The legal presumption is that the husband of a married woman is the biological father of her child unless the unwed biological father overcomes legal barriers to establishing paternity, one of which is putative father registration.

Sledding

Rathjen insisted that Strickland not register and take the mother at her word that she would not attempt to terminate his parental rights.  She even went so far as to threaten Strickland, saying that she would never allow him to see the baby if he submitted his name to the putative father registry.  Strickland, although leery of Rathjen’s odd response, felt he had no choice and never registered.

The day before the baby was born, Strickland and Rathjen spent the evening hours together walking through downtown Salt Lake City and enjoying the Christmas lights on display.  On December 29, 2010, Rathjen gave birth and, unbeknownst to Strickland, declared that she did not know the identity of the father and immediately consented to an adoption.

For eight days, Rathjen ignored or curtly responded to Strickland’s attempts to communicate with her.  At one point, Rathjen affirmed that she was still scheduled to have the baby by Caesarean section on January 12 before finally divulging the truth on January 5.  Since then, Strickland has been embroiled in an extensive and complex legal dispute with Rathjen, her attorneys, the adoptive parents, LDS Family Services, and the State of Utah over his wrongfully terminated parental rights.

Strickland alleges that Rathjen worked together with social workers and the adoptive family to streamline the adoption process and guarantee that he could not assert his paternal right to consent to the adoption until it was too late.  Strickland has been battling for the restoration of his parental rights for three years and filed a civil suit for fraud, racketeering, and other claims on January 2, 2014.  Essentially, Strickland believes that Utah law creates an adoption system that a birth mother can use to defraud an unwed father out of his parental rights with little to no recourse.

It is not yet clear whether the courts will vindicate Strickland’s claims, and the story is certain to continue to evolve as the civil case progresses (the adoption challenge, however, has reached the appellate stage and has established a clear record of factual wrongdoing even if the law does not create an eventual remedy).  That said, the case of “Baby Jack” in Utah could have happened much the same way in Arizona or one of numerous other states with similar unwed paternity law.

Arizona’s putative father registry statute allows an unwed father to register his claim of paternity and to receive notice of adoption proceedings.  The unwed father must affirm that he is willing and able to support the child and actively seeking paternity in a separate action.  The unwed father must register within thirty days of the child’s birth unless he proves by clear and convincing evidence that it was impossible at the time, but the father’s lack of knowledge of the pregnancy is specifically excluded as a reason for failure to file within the thirty-day period.  The statute, codified at A.R.S. § 8-106.01, declares that “the fact that the putative father had sexual intercourse with the mother is deemed to be notice to the putative father of the pregnancy.”  Furthermore, the adoption consent statute (A.R.S. § 8-106) requires the putative father to object to a proposed adoption by filing a paternity petition and serving it to the mother.

19th Century Family

This means that a father’s right to consent to, or reject, a potential adoption of his child can be defeated if the mother simply refuses to tell him about the pregnancy or the date of the child’s birth.  The Baby Jack scenario could easily be repeated in Arizona – and may already have occurred – because the statute does not waive its strict requirements in the event of fraud.  In fact, in 1971, then-Attorney General Gary K. Nelson issued an opinion recommending that the putative father registry statute be amended to require notice to all fathers whose identity is known when an adoption proceeding is initiated.  Op.Atty.Gen. No. 73-5-L.  Unfortunately, it appears that the Legislature ignored Mr. Nelson’s advice and still requires strict compliance with the onerous requirements of § 8-106.01.

As a result, one need not be a legal mystery writer to imagine the potential for a pregnant woman to accept the help of the baby’s father until shortly before childbirth and then dodge service of the paternity petition (assuming the putative father even receives notice of the adoption or manages to register in time).  The mere possibility of this result, let alone its apparent likelihood, is preposterous in today’s sophisticated world of family law.  Unfortunately, as long as states rely on antiquated notions of legitimacy and parental rights initially formulated almost a century or more in the past, the ability of well-meaning fathers to protect themselves will be handicapped.

Accordingly, the best way for an unwed father to protect his parental rights is to register before the baby is born notwithstanding his trust in the mother.  Admittedly, this advice is not helpful to an unwed father who does not learn of the pregnancy in time, either through mistake or misconduct by the mother, but early registration remains the best way to protect paternity rights.  That said, existing putative father law in Arizona and other states is not particularly effective at protecting the rights of fathers who want to be involved in their child’s upbringing.

 

Posted in Adoption, Brad TenBrook, Child Protective Services, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , , , | Leave a comment

The Importance of Counseling in Domestic Disputes

All too often, tragedies occur in the context of divorce and custody disputes.  In Arizona we no longer use the term “custody” and instead use the phrase “legal decision making,” but for the purpose of this article we will refer to it colloquially as custody.  Unfortunately, many of those tragedies are perpetrated by the parties involved, but there may be ways to prevent the unspeakable from occurring.

On Christmas Day, a Casa Grande woman murdered her daughter, poisoned her family, and stabbed her ex-husband several times before attempting to kill herself.  Recent questioning revealed that the woman, Connie Villa, feared losing custody of her children to her ex-husband.  Few details are yet known about the couple’s 2012 divorce, made official a few months ago, and subsequent custody battle.

Eye Rub

Homicide is not commonplace in a family law dispute, but the threat of domestic violence, kidnapping, and other potential hazards and wrongdoing is great enough that courts often order counseling.  Furthermore, courts may order that the parties to a family law proceeding undergo a psychological evaluation, rehabilitation for substance abuse issues, and other forms of treatment to help create the safest environment possible.

Attorneys also have a pivotal role in resolving disputes in a way that promotes the long-term health of their clients and their families. Unfortunately, the professionals assigned to help guide a family through a case are limited by the good-faith participation of the parties.  For example, a husband who struggles with moderate depression may lie about his symptoms, fail to disclose his diagnosis, or refuse recommended treatment because he fears potential consequences with the court, his employer, or the rest of his family.  Conversely, the wife of a clinically depressed husband may exaggerate his behavior or fabricate an allegation of abuse in an attempt to compel a more favorable judicial result.

Meanwhile, the evaluators and caretakers are unable to make accurate recommendations to the court and cannot prescribe proper treatment of what ails the parties.  Ultimately, the failure of the parties to participate openly and honestly in the process can result in tragedies that might have been preventable.

It cannot be known whether the Christmas Day killing of Aniarael Macias, an innocent 13-year-old girl, could have been prevented, or even whether Villa suffered from an undisclosed or insufficiently treated illness, but the case provides a sad reminder of the high stakes that a family legal dispute can raise.

Welcome Back

If you are involved in a contested divorce, a custody dispute, a dependency hearing, or simply feel as though your family’s affairs are too strained to manage, the most important thing that you can do is to engage with the resources available to you.  Family court cases are immensely stressful to the parties, and even one or two counseling sessions can tremendously improve your quality of life during a difficult time.

Moreover, good-faith participation in the process, including complying with recommended evaluations and treatment, is critical.  Vexatious tactics and vengeance-oriented litigation might strain your family to the breaking point and trigger new disputes, violence, or worse.

The unseen forces that can damage a family – or an individual – beyond repair are particularly worrisome around the holidays, during school breaks and vacations, and just before or after moving to a new home or job.  Your attorney should be aware of these concerns and remind you that being overzealous in trying to protect yourself or your children might have the opposite effect of what you intended.

 

Posted in Brad TenBrook, Child Protective Services, Gregg R. Woodnick, Juvenile Court, Leslie A. Satterlee | Tagged , , | Leave a comment

When Arizona Foster Parents are Ready to Adopt – A Rare Opportunity for a Free Lawyer

I received a call the other day from a potential client and her partner.  They had been fostering a child through a CPS placement for almost 19 months.  The baby was just three weeks old when he was placed in their care.  The first few weeks of his life were spent in a hospital.  The birth mother had limited prenatal care and the baby was born as a S.E.N. (Substance Exposed Newborn).

Although foster training taught the moms that their obligation was to nurture the child until reunification with the parents occurred, as with many loving foster families, they fell in love with the baby after welcoming him into their Gilbert home.  Notwithstanding the drug exposure, he was thriving in their care.

Sunglasses Baby

The foster moms went to every Dependency Hearing and even attended the Foster Care Review Boards.  The biological mother appeared at the court hearings and proclaimed a desire to be reunited.  Her numerous missed TASC drug tests told a different story.  Her erratic behavior and failure to attend a court-ordered psychological evaluation coupled with an arrest for possession of drug paraphernalia certainly did not help her court appointed attorney present a defense or argument to expedite the reunification.

Meanwhile, the CPS case workers constantly changed.  There was an investigative worker, an involved supervisor, and three others since the baby had been in the State’s care.  Fortunately, no one ever mentioned removing the child from the foster parents.  There was never a biological father identified (referred to as a “John Doe”) and mother’s family was uninterested and/or equally enmeshed in methamphetamine culture.

Ultimately, the biological mother’s rights were terminated (she was pregnant again at the Severance hearing).  Now, six weeks after the severance hearing, the foster mom was meeting with an attorney for the first time to see what needed to happen.  Foster Mom, who is a physician in Chandler, was eager to pay my office to tie this up and complete this adoption so that they could get back to normalcy and so that she and her partner would not have to deal further with CPS, court hearings, Foster Care Review Boards (FCRB), etc.

As her check book came out on my conference room table, I had the rare pleasure of telling the moms that this would be free for them.  Pursuant to rules regarding ‘non-recurring adoption expenses’, the legal fees for the adoption can be paid by our Uncle Sam, irrespective of the financial situation of the parents.

Sports Kid

Our law provides that, in the case of CPS placement adoptions, non-recurring adoption expenses are reimbursed (paid) by the government.  What this means is that, once a Parent’s Authorization for DES to Reimburse Attorney Directly form is signed and other basic pleadings filed, the adoption can proceed through its conclusion without the adopting family incurring costs.

To be clear, this only applies to CPS placement adoptions in Arizona.  Qualifying placement adoptions require that the child is legally free for adoption and cannot or should not be returned home, the child experiences of one numerous broadly defined special needs, and the adoptive parent cannot adopt without a subsidy.    Most other situations, such as private severance actions, step-parent adoptions, and second-parent adoptions, still require direct payment to the attorney.

Still, the availability of government reimbursement for some adoptions contributes substantially to the placement of children with wonderful parents without the added burden of adoption expenses.  The joy felt by a newly recognized adoptive family is something for which every Arizonan should feel pride.

 

Posted in Adoption, Brad TenBrook, Child Protective Services, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , , | Leave a comment

Supreme Court Hears Key Adoption Case for Arizona

The U.S. Supreme Court heard an important adoption case on April 16. The case, captioned Adoptive Couple v. Baby Girl, involves complex issues of sovereignty and statutory construction, to say nothing of the high stakes element of a little girl’s permanent placement.

In 2009, a South Carolina couple took custody of a newborn girl after her mother agreed to let them adopt her. The girl’s biological father objected to the adoption on the grounds that the mother had not consulted with him before making the arrangements.

Supreme Court (Woodnick)Under typical circumstances in South Carolina (and in many other states), the father’s consent would not have been necessary because he was not married to the mother and was considered an absentee. A 1978 federal law entitled the Indian Child Welfare Act, however, provided a strong enough legal ground for the state to award custody to the biological father in December, 2011.

The Indian Child Welfare Act (ICWA) was passed to address what was described as an “alarmingly high” rate of removal of children from Native American families. The law requires inclusion of the family’s tribe in proceedings to determine child custody, including adoptions. Under ICWA, the “biological parent or parents of an Indian child” cannot have their parental rights involuntarily terminated without notice, hearing, and proper showing that continued custody of the child by the parent or custodian “is likely to result in serious emotional or physical damage to the child.” Such notice must also be given to the child’s tribe so that the tribal courts can engage in determining the child’s placement.

If such a showing is made and the court terminates a parent’s rights, ICWA requires the court to give preference to the child’s extended family, other members of the child’s tribe, or to “other Indian families” when placing the child.

In the case at bar, the Supreme Court must decide if (and how) ICWA applies to the girl’s biological father, with whom she will have spent about 18 months by the time a decision is reached. No matter the result, one of two families will be devastated. Broader concerns with the case involve the potential limitation of ICWA, prompting several states, tribal councils, and others to file numerous amicus briefs.

Saguaro (Woodnick)The State of Arizona and the Inter Tribal Council of Arizona have each filed briefs in support of ICWA. Arizona is home to the nation’s third-largest population of Native Americans at around 155,000 people; if ICWA is overturned, the impact on Arizona would be disproportionately large. Legal commentators speculate that the Supreme Court’s high rate of reversal indicates the Justices’ intent to do away with outcomes like these under ICWA, but the form that such reversal might take is in doubt.

Adoptions are complicated endeavors which sometimes lead to tragic outcomes. ICWA is designed to respect tribal sovereignty and to protect the cultural heritage of Native American children whose unique situation makes them more vulnerable. At times, however, statutes have unintended consequences that can lead to termination of the rights of both biological and adoptive parents. Adopting a child in Arizona is a complicated process (and not only because of tribal law issues), so both Arizona adoption lawyers and prospective adoptive parents must exercise due care and caution.

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