US Supreme Court: “Children’s Reports of Child Abuse are Non-Testimonial and Not Subject to Confrontation.”

On June 18, 2015, the Supreme Court of the United States decided the case of Ohio v. Clark.  Because this case has implications for attorneys practicing child welfare law, Grant Dickinson of the PDA has created the following summary:

Clark had sent his girlfriend away to prostitute and while she was gone cared for her young children. Her son reported to a teacher that Clark had abused him. At trial Clark unsuccessfully sought to exclude the child’s statements to the teacher because the admission of the statement violated his right confront the witness against him. The trial court denied his motion and he was convicted. The Ohio state Supreme Court reversed the conviction. Ohio appealed.

The Supreme Court reversed the ruling of the Ohio Supreme Court finding that the child’s statements to the teacher were not testimonial in nature and the primary purpose of the communication was not to establish or prove past events for later prosecution; therefore not subject to the confrontation clause of the sixth amendment. This was reinforced by the ongoing emergency perceived by school employees and whether they could release the child to Clark at the end of the day. The Court further stated, “statements by very young children will rarely, if ever, implicate the Confrontation Clause.”

How this applies to child welfare. We are often confronted with statements of children being used against our clients. This newest ruling weakens our grasp at the confrontation clause as a way to exclude such statements. This case coupled with Utah statute U.C.A. 78A-6-115(6), which allows for child’s statements to trusted adults as exceptions to the prohibition against hearsay, limit our ability to cross examine children thus allowing children’s hearsay statements as testimony to be used against our clients.

Full Opinion Available at http://www.supremecourt.gov/opinions/14pdf/13-1352_ed9l.pdf

New York Court Grants New Trial in Case of Baby Sitter Accused of Shaken Baby Syndrome

On December 16, 2014, a New York court overturned a murder conviction for Shaken Baby Syndrome.

While in the care of a day care provider a two and a half year old died after falling from a bench.  The day care provider was convicted of murder under the theory of Shaken Baby Syndrome.  A post-conviction motion asked the court for a new trial under the theory that new scientific research regarding the characteristics of Shaken Baby Syndrome undermined the reliability of the verdict.  The court agreed with the defense that a child can, in fact, die from a "short fall" and ordered a new trial based on the newly discovered evidence (i.e. advances in scientific research).

You can find a copy of the opinion HERE.

NJ Justices say Methadone Treatment While Pregnant Not Child Abuse

On December 22, 2014, the New Jersey Supreme Court ruled that going through a methadone treatment program while pregnant, even when the newborn suffers from withdrawal symptoms, does not constitute child abuse.

The unanimous court overruled two lower court decisions that looked only at the harm to the child without considering whether the mother's actions were reasonable.  The court wrote: "We hold that, absent exceptional circumstances, a finding of abuse or neglect cannot be sustained based solely on a newborn's enduring methadone withdrawal following a mother's timely participation in a bona fide treatment program prescribed by a licensed health care professional to whom she has made full disclosure," 

You can find a full copy of the opinion HERE.

Resources for Parents With Trauma Histories

The National Child Traumatic Stress Network has fantastic resources for children who experience trauma and recognizes that parents involved in the child welfare system have also likely experienced their own trauma.  Check out their webpage dedicated to Birth Parents with Trauma Histories and the Child Welfare System.

The following is an introduction to one of their pamphlets, Birth parents with trauma histories and the child welfare system: A guide for judges and attorneys (link available below):

Judges and attorneys who work in the child welfare system are well aware that many of the children in the system have experienced trauma; less well recognized is that the birth parents of these children often have their own histories of childhood and adult trauma. For example, research indicates that 30-60% of maltreated children have caretakers who have experienced domestic violence themselves. Past or present experiences of trauma can affect a parent’s confidence and ability to keep children safe, work effectively with child welfare staff, and respond to the requirements of the courts. Fortunately, trauma-informed services are increasingly available for both parents and children who need them. Trauma-informed services include mental health services offered by trained professionals that address specific reactions to traumatic events. By recognizing the potential impact of trauma on parenting, judges and attorneys can more easily connect parents with those services.   

If you are looking for additional resources for parents who experience trauma.  Below are some of the pamphlets available:

For Parents
For Child Welfare Staff
For Judges and Attorneys
For Mental Health Professionals
For Resource Parents
For Court-Based Child Advocates and Guardian ad Litem

Medical Mimics of Child Abuse

Louis Milot, a parental defense attorney of Peoria, Illinois, has compiled a list of medical mimics of child abuse.  This information goes along very well with the presentation that we heard from Dr. Christine Campbell at the annual conference in April.

Mr. Milot has graciously allowed us to share it with you.  Here is his introduction to the list, which can be downloaded HERE.

Due to frustration with our local child abuse pediatrician's inability or unwillingness to provide neutral and objective reports or testimony, I have undertaken to compile a non-exhaustive list of medical mimics of child abuse/neglect which I am constantly trying to keep updated.  At minimum, it can operate as a checklist for purposes of cross-examination of the State's paid "expert."  In the interest of advancing the cause of better diagnosis and helping parent's attorneys, I attach a copy.  Since every situation is unique, there is no substitute for retaining your own expert.  Therefore, I believe that the next list ought to consist of experts on the various conditions on this list that would be available to testify.  Anyone interested in starting such a reference list?

Partial credit should be given to Michael Segal M.D., PhD from whose article Mr. Milot gathered some of the information and to Michelle Weidner who assisted in the compilation.

Thank you to Mr. Milot for sharing the list!  If you have any questions you can contact Mr. Milot at lawshop@mtco.com.