"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Monday, November 2, 2015

Delaware County NY judicial candidates Porter Kirkwood and Gary Rosa on the issue of termination of parental rights - an "F" to both candidates for the answers

During the one and a half hour meet-the-voters session in October of 2015, judicial candidates for the seat of the Delaware County Family Court Judge (state of New York) Gary Rosa and Porter Kirkwood were asked several questions as to what would be their view at certain important legal issues.

One of the questions was when would Gary Rosa and Porter Kirkwood deem it appropriate to terminate parental rights.

Here are their answers:

Gary Rosa went for "best interests of the child", making a reservation that a consideration of what is actually in the best interests of the child, differs from case to case.

That was a wrong answer.

Based on such a consideration, especially a very young child, a newborn, who did not yet establish emotional connections to his or her parents, can be ripped from a poor family to be given to a rich childless family.

It is unquestionable that a child raised by a wealthy loving family will get more opportunities in life than a child raised by a loving, but poor (biological) family.

Yet, here the "best interests of the child" analysis will not trample parental constitutional rights.

Parents must first DO something bad to entitle the government to take the child away from them - and at least the declared burden of proof in such cases is very high, because, even though neither of the judicial candidates, unfortunately, mentioned that parental rights are fundamental constitutional rights, they are fundamental constitutional rights, and should not be infringed upon by the government lightly.

Kirkwood also did not reveal to the voters the ways his agency abuses the constitutional inconsistency between "permanent neglect"/termination of parental rights laws (Article 6 of the Family Court Act) and child neglect (Article 10 of the Family Court Act) laws.

Here is a schematic timeline of Family Court Act Article 6 and Article 10 proceedings showing how parental rights may be terminated before the finding that the parent neglected the child in the first place, which was the whole basis of removal of children from home.

The timeline above shows that children are usually taken into foster care by Kirkwood's agency when Kirkwood's agency, Delaware County Department of Social Services, files a child neglect petition under Article 10 of the Family Court Act.

At the same time, tolling of 15 months out of the most recent 22 months for purposes of termination of parental rights start.

Kirkwood's agency is required by state law to engage in reasonable efforts to reunite parents with children, yet is provided monetary incentives by state and federal law to have the children adopted out of foster care.  Monetary incentives won.

So, Kirkwood's agency drags its feet not to evaluate alternative family placement offers, it rejects such offers in bad faith, it intimidates family members who offer their homes for relatives' children, it provides impossible conditions for visitation of children, puts them into foster homes where they are weaned by foster parents from calling their parents "mother" and "father" and instead are taught to call their foster parents "mother" and "father", which is, of course, unlawful, but is going on just as well, and drags on with the court proceedings.

I had to make motions to compel statutorily mandated visitation for my clients with their children held in foster care (which were granted) because Kirkwood's agency was denying visitation unless they sign a "contract" agreeing to "services" they did not need to be provided by satellite non-profit corporations where local government officials and employees had their fingers in the pies.

Courts are complicit with such schemes.  Even though child neglect proceedings have a priority on any court's schedule, trumping even felony trials, courts rarely give trial dates back-to-back for as long as is needed for a trial.

Instead, courts space out scheduling of trial dates, knowing that the longer the proceedings go, the closer the agency gets to the 15-month mark from when the proceedings began and children were put into foster care (actually, only 13 months are required to start termination of parental rights proceedings).

Thus, a parent may be actually winning at trial (it happened in my cases) but, desperate that his parental rights will be terminated under Article 6 before he wins in an Article 10 proceeding, the parent is coerced this way into a "deal" with Kirkwood's agency - an unnecessary deal, and an unconstitutional deal, since it is dictated by constitutional incongruity between the neglect and permanent neglect laws.

Kirkwood, of course, did not tell the voters how his agency uses this tactic again, and again, and again, threatening people with a permanent termination proceeding when they are WINNING in a trial on child neglect, and especially when they sue his agency in federal court for civil rights violations.

As a case-fixing judge for his agency, coming to the bench not only for his own obvious financial benefit, but also to continue the unconstitutional "tradition" of case-fixing for Delaware County DSS established by the retired judge Carl Becker since 2002, Kirkwood will, no doubt, continue manipulation of scheduling in child neglect cases in order to use Article 6 permanent termination statutory factors to coerce Article 10 litigants into dropping their rights to trial and agreeing to "deals" that provide a flow of money for "services" to satellite corporations in Delaware County where the County supervisors funnel taxpayers' money.

Gary Rosa gets an F for competence for answering this question.

Porter Kirkwood, even though his answer was more elaborate and sprinkled with references to the law and to stories from his practice as a Social Services attorney who obtained terminations of parental rights, gets an F, too (of course, those are my personal ratings).

Kirkwood partially correctly stated that:

  1. The governing law is the Family Court Act, but forgot to mention the State and Federal Constitutions and the Supremacy Clause in both Constitutions, making invalid any state law that contradicts constitutional rights.  Not mentioning constitutional provisions that supersede statutory law earns Kirkwood and F.
  2. Kirkwood correctly stated that, under state statutory law, there are two factors that govern termination of parental rights proceedings, but misstated the factors.

Kirkwood stated that the factors that may lead to termination of parental rights are either:

1) abandonment by parent of a child for a period of 6 months; or 
2) permanent neglect by parent of a child which happens when the parent or custodian does not make plans for the child's future for the period of at least one year or 15 out of 22 most recent months following the date when the child came into foster care.

Kirkwood recited the statute incompletely as to permanent neglect, he did not mention that, to terminate the POOR and/or DISABLED parents' lack of planning for the child's future, the parents first need to have physical and/or financial ability to do so - before their parental rights can even be considered to be terminated by the court.  That is clear statutory language, but for some inexplicable reason, Kirkwood who boasts his vast knowledge and experience in Family Court law, omitted mentioning them.

Yet, Kirkwood made the following statements in the same meeting with the voters:


Kirkwood knows that the economic situation in Delaware County is very bad, that there are not many jobs available, and no good jobs available at all.

So, the question of poverty and of rights of poor parents and termination of their parental rights was of paramount importance, yet Kirkwood avoided addressing it completely.

Moreover, Kirkwood mentioned that he, as a "founding member" of the Family Treatment Court, a court that is not reflected anywhere in the Delaware County Court system's website, nor supported by the Family Court Act, used that Family Treatment Court to terminate parental rights of drug abusers.  

Well, substance abuse is a disability and the statute clearly provides that parental rights may not be terminated for people who are "physically" or "financially" unable to provide for the future of their children.  

For such parents, there are other ways - such as services to be provided by Social Services, the agency that Kirkwood represented for 19 years and knows very well of the range of services he MUST provide, but instead seeks the easy and unconstitutional way of termination of parental rights.

So, both candidates earned an F for their answers to this question, which allows to make a gloomy prediction of their judgeship, especially for Porter Kirkwood.  

Rosa may brush up on Family Law in the future (even though he had enough time to do that when running for a judgeship in two election campaigns), yet, Kirkwood who is chest-pounding that he means to do what he is doing and considers it a "public service" and a point of pride, will not change.

He is a true apprentice of Carl Becker who considered poor parents as second rates - according to his own election campaign speech in which he claimed that the quality of children as "community leaders" deteriorated with the decline in numbers of "doctors, lawyers and shopkeepers" in the county - making it necessary, according to Becker to introduce social services and the police in school more aggressively.

So, for Kirkwood who was caught in self-dealing in Delaware County contracts, in claiming, as his first act as County Attorney, an increase in his already inflated salary from $93,000 by around $40,000 (in a county he knew was poor), will continue, just as his mentor Becker did, to exercise social control over the poor through social services and the police - in complete disregard of constitutional and even statutory rights of poor and disabled parents.

As to Rosa, his lack of doubt as to the grounds under which parental rights can be terminated ("best interests of the child" only) is also troubling.

A judge on the Family Court bench must have doubts.  Family law is not a precise science, he is cutting into the most sacred and most vital ties existing in the humanity - ties between a parent and his or her child.

The only advantage Rosa has on this issue is that he was not caught in as many self-dealing and unethical things as Kirkwood was.

Anyway, an F to both candidates as to this issue.

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